The page below provides a brief explanation of the current position of members of the Australasian Performing Rights Association, and other performing rights collecting societies internationally, who wish to use Creative Commons licences.
By selecting any “Non-Commercial” Creative Commons licence for their work the creator reserves the right to collect royalties for all commercial uses of the work under statutory or compulsory licences. This means that it is in theory practicable for a songwriter, composer or musician to license works under a Creative Commons “Non-Commercial” licence while still being entitled to collect royalties for the commercial use of that work.
In Australia (and New Zealand) the Australasian Performing Right Association (APRA), like many collecting societies around the world, takes a full assignment of the member’s performance and communication rights (eg broadcasting or posting online) of all past, present and future works. Assigning the rights to the collecting society allows more efficient administration and enforcement of the royalty collection process. However, it also causes compatibility issues for collecting society members who wish to issue their music under direct licences, such as the Creative Commons licences.
In simple terms, because of the assignment, the creator no longer has the right to issue any direct licences for the performance or communication of their works. This means they can’t legally issue their material under a Creative Commons licence without APRA’s permission or, for that matter, upload it to services such as MySpace, YouTube, Last.fm and other social networking services. It also means that current APRA members are, as yet, technically not able to make use of most of the online business models enabled by these platforms. Often musicians are not even aware of these legal complications, and put themselves at risk by licensing their material in ways that are technically invalid.
APRA has historically had two mechanisms that allowed its members to regain control of their works — “Opt Out” and “Licence Back”. However, limitations in the terms of these mechanisms meant that they were insufficient to enable musicians to (legally) use CC licences. The Opt Out mechanism allows an APRA member to permanently regain their rights over their work for a specific category of use (eg performing the work in public or radio broadcasting) – but does not apply to communications of the work, or allow licensing for purposes outside the specified category. Under the Licence Back, the member obtains permission from APRA to use their work for a specific one-off purpose (such as playing it at a charity gig) – but can’t license the material to others and needs a separate permission every time they intend to use the work.
To address this issue, in late 2008 APRA introduced a new “Noncommercial Licence Back” which allows APRA members to make their musical works available online for noncommercial purposes. This mechanism aims to increase the options for musicians to utilise digital technologies to promote and capitalise on their music. The musician can now host streamable and/or downloadable audio files of their musical works on their own website, or on third-party sites (where the reuse is noncommercial), or even grant their fans the right to host songs on their websites or personal blogs.
However, because it only applies to online communications (ie doesn’t include other uses such as broadcasting or performance) and then only in certain circumstances, the new Noncommercial Licence Back option still has limited application. It doesn’t allow Creative Commons licensing (which applies to communication, broadcast and performance) and won’t allow musicians to upload their material to most popular Web 2.0 platforms.
Furthermore, the definition of ‘noncommercial’ used by APRA is extremely narrow, excluding all uses that involve an exchange of ‘consideration’ (which, under Australian law, includes a mere peppercorn or promise) as well as all uses made by organisations that receive ‘public or institutional funding’. The exact legal effect of these limitations is unclear; however, they seem likely to prevent use of the licensed material by all educational institutions, government bodies and community radio stations, as well as any non-profit organisation that receives funding from the government, universities or the larger private charity foundations. As the Australian non-profit sector is highly reliant upon government funding, it seems likely that the only use permitted by the APRA Noncommercial Licence Back will be uses by private individuals.
Internationally, Creative Commons is working with the International Confederation of Societies of Authors and Composers (CISAC) on the issue. There has been some movement in the area around the world, particularly through arrangements with collecting societies in the Netherlands (Buma Stemra), Denmark (Koda) and Sweden (STIM). Here in Australia, the ccAustralia office and APRA have been working towards a legal mechanism to harmonise the licensing models and let musicians make decisions about the use and reuse of their works.
For further information about collecting societies and Creative Commons licences see question 1.10 in the Creative Commons FAQs. For those who would like further information on Creative Commons licences that addresses these issues, APRA has an article on Creative Commons in the December 2007 edition of APRAP and the Arts Law Centre of Australia Online has published a useful article by Nick Sweeney.