26Oct

Electric Proms – some questions

posted by Steve Bowbrick

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I’ve been watching the Electric Proms on the TV (click play above to see one of them). The whole thing turns out to be a very fine thing: another example of what you get when you crunch together the BBC’s guaranteed audience with unparalleled cultural clout and production values to die for: would any artist in the world have refused the opportunity to appear?

So I’m left with a few questions: I suspect that some of my readers may be able to help with these:

  • Who owns the rights to the concert recordings? Were they purchased on terms that will allow the BBC to make further use of them?
  • Will they be available to licence fee-payers in perpetuity in some kind of archive or will they be subject to the seven-day catch-up window like last year’s? [answering my own question: this press release says the seven day window applies].
  • Was there any discussion of trying out new licencing methods or was the old recording industry model the only one on offer? Did the BBC consider using its influence to encourage more permissive/open arrangements?
  • Has any of the secondary material—the BBC New Music Shorts, for example—been commissioned on a CC basis or similar?
  • Does anyone care about all this? The concerts were great (So far I’ve loved The Streets and Nitin Sawney best) but would anyone be bothered if they disappeared into a vault next week? Should we just accept that the old-world rights regime that’s so transparently broken elsewhere should apply here?
  • If this year’s concerts go the way of last year’s and disappear in seven days, would the BBC consider trying a different model next year: explicitly advancing a CC-based festival, for instance. The Open Proms, maybe?
8 comments

Comments so far.

  1. Posted by James Cox on Sunday 26th October

    Music lives forever in ways that tv and film struggle to permeate.

    to be able to dip back in and see iconic performances is not just a question but almost a requirement– who will forget Hendrix’s legendary ToTP performance- and the many others that have done the same?

    As to whether it needs to be CC- lets take it in steps: getting the media online in a downloadable fashion that’ll last forever- it’ll not be about 7 days, but many many years. Remixing comes later.

  2. Posted by Gordon Joly on Monday 27th October

    Creative Commons is just that. Creative and Common.

    Liked The Streets, as ever.

  3. Posted by Mike Dorey on Tuesday 28th October

    Some interesting points: Most likely the BBC simply decided it wasn’t economic to buy rights in perpetuity. This would have been negotiated with the performers, and perhaps they weren’t agreeable. Why don’t you contact Mike Skinner and Nitin Sawney and ask them? Again, it’s their choice – not ours….

  4. Posted by Michael Walsh on Tuesday 28th October

    Steve,

    Great questions!

    Nice to see your time in the BBC hasn’t corrupted you into the group-think (yet)!

    Hopefully you’ll get an answer or two – more than likely privately – and give some feedback on the thinking and maybe some of the future plans of the BBC.

    Fingers crossed.

  5. Posted by Michael Walsh on Tuesday 28th October

    On the CC licensing issue, the music collection societies aren’t the biggest fans!

    ASCAP, in the US, published a Bill of Rights and a position paper (PDF) which address the issue of Music Copyright in the Digital Age.

    On the issues of the Commons, in the addendum they caution:

    SETTING THE RECORD STRAIGHT: QUESTIONING THE “COMMONS”

    10 Things Every Music Creator Should Know

    For songwriters, lyricists or composers who want their art to be their life and
    livelihood, it’s critically important to get beyond the hype and “hipness” of
    licensing alternatives, and to look dispassionately at the choices on the table.

    Among the “copyright alternatives,” the Creative Commons licenses are styled
    as being friendly and easy to use. To submit a work to be governed under a
    Creative Commons license, creators click on symbols and icons for attribution,
    “share alike” or noncommercial uses, and then upload a digital copy of the work.

    “Simpler” does
    not equal “better”
    - particularly
    when it comes to
    protecting long
    established rights
    that make creative
    professions viable

    While the process appears simple, the meaning of these symbols can be
    misleading to a creator. Even if he or she takes the time to access what Creative
    Commons calls the “human readable” terms and conditions of the license, will
    that creator fully understand to what he or she is consenting?

    Before committing to a CC license, songwriters or other music creators should
    consider these 10 important legal issues:

    All the CC licenses
    are “irrevocable” -
    meaning they
    cannot be changed
    or revoked.
    There is no
    support for rights
    enforcement
    under the Creative
    Commons system.

    » 1. Irrevocability – All the CC licenses are “irrevocable” – meaning they cannot
    be changed or revoked. Once you place a work under a CC license, the
    meta-data travels with the digital version of your work – forever. This
    provision conflicts with a creator’s absolute right under the U.S. Copyright
    Act to end any license or contract regarding a creator’s work after 35 years
    (generally speaking), no matter what the license or contract says. This
    right of termination can be very valuable, particularly if a work “breaks
    through,” but there is no apparent way to exercise your termination rights
    under a CC license.

    » 2. Waiving Royalties – Most CC licenses ask creators to waive the ability to
    collect royalties – including from public performance rights. Such a waiver
    illustrates that these licenses are for people who do not make a living
    primarily from their creative work. For example, academics and scientists
    enjoy salaried positions, with health care and often with university or
    subsidized housing. Independent songwriters and composers have no
    such luxuries.

    » 3. Confusions Over “Noncommercial Use” – Many CC licenses are for “noncommercial
    use.” While this would seem to preclude a creator’s work
    from being unfairly exploited for monetary gain, a problem immediately
    arises: there is no definition of “noncommercial use” under the U.S.
    Copyright Act. Though there are a few narrow exemptions for “noncommercial
    performances,” all other uses of creative works should be
    licensed, either by the creator or otherwise licensed by reason of a compulsory
    license. Even “non-commercial” PBS and NPR pay license fees
    for their right to perform music in their broadcasts and on their web sites.
    To further complicate matters, CC licenses define peer-to-peer file sharing
    as “noncommercial” – a position with which the United States
    Supreme Court has disagreed and is otherwise at odds with U.S. law.

    » 4. No Support for Rights Enforcement – There is no support for rights enforcement
    under the Creative Commons system. There is no larger organization,
    like an ASCAP, to enforce the scope of creators’ rights under these
    licenses. Creators are on their own when, for example, the boundaries of
    a non-commercial CC license are breached, and the creator finds out the
    work is being exploited for compensation by another. Creators who have
    not obtained a U.S. Copyright Registration for a CC licensed work will also
    find out that they have no standing to even sue in a U.S. Court, and thus,
    are left with few realistic options for recourse.

    » 5. Potential Global Conflicts – CC licenses are global, which can complicate a
    creator’s ability to enforce his or her rights when those rights are violated.
    Normally a work’s creator can control the geographic territory in which a
    work is used – or appoint representatives to do so. For example, ASCAP
    relies on a global network of Performing Rights Organizations to license
    and collect royalties for performances of ASCAP members’ works in other
    countries. The global nature of the Creative Commons system can interfere
    with the support and income offered by these types of existing rights
    infrastructures.

    » 6. Non-Exclusivity – CC licenses are “nonexclusive,” which means that the
    work’s creator will have no future ability to enter into exclusive deals for a
    work licensed under the Creative Commons system. In the entertainment
    industry, producers may want exclusive rights to use, for example, a
    musical work as the signature theme for a television show or an advertisement.
    Such an opportunity could be lost to the creator of a work
    licensed under a CC license.

    » 7. The Issue of Co-Creators – CC licenses can cause complications for works
    created by more than one individual. Under the U.S. Copyright Act, unless
    they have a written agreement otherwise, each “co-creator” has the right
    to license the work on a non-exclusive basis without the consent of their
    co-creator. Each co-creator’s responsibility is to ensure that the other cocreator
    receives a share of profits. But what happens when a co-creator
    places a work under a CC license? If a license eliminates the possibility
    for payment on that work, and extends both globally and forever, the other
    co-creator is essentially out of luck.

    » 8. Lack of Distinction Between Types of Uses – CC licenses do not distinguish
    between types of uses. A music creator’s submission of a work to a CC
    license means that he or she allows the work to be performed, copied,
    distributed or even synchronized to an audiovisual work. This can lead not
    only to lost financial opportunity, but also a conflict of ideology. If a creator
    gives up control over the use of his or her song, that song could end
    up being synchronized with an audio-visual work that promotes a point of
    view offensive to the creator and the creator will be without any remedy.

    » 9. Prohibition of DRM – CC licenses prohibit use of digital rights management
    (DRM). While use of DRM continues to change, it has been a core element
    in today’s digital music arena. Preventing DRM from being applied to a
    musical work can limit its use via certain distribution channels.

    …there is no
    “authentication”
    as to whether the
    true owner of a
    piece of creative
    content is the one
    applying for the
    CC license.

    » 10. No “Authentication” When a Work Is Submitted – Even if a creator doesn’t
    want to submit his or her work to a CC license, someone else can. How?
    Because there is no “authentication” as to whether the true owner of a
    piece of creative content is the one applying for the CC license. Any
    person can go to the Creative Commons web site with a digital song file
    or photograph, follow the instructions online and claim it as his or
    her own and release a work, without the copyright holder’s consent, to
    the “commons.”

    For music creators, there are other considerations relative to Creative
    Commons in addition to the list above.

    For example, below is a note from the FAQ on the Creative Commons
    Web site regarding how a CC license treats peer-to-peer file sharing under its
    “noncommerical” provision:

    One thing to note on the noncommercial provision: under current
    U.S. law, file-sharing or the trading of works online is considered
    a commercial use – even if no money changes hands. Because
    we believe that file-sharing, used properly, is a powerful tool for
    distribution and education, all Creative Commons licenses contain
    a special exception for file-sharing. The trading of works online
    is not a commercial use, under our documents, provided it is not
    done for monetary gain.
    (http://wiki.creativecommons.org/Frequently_Asked_Questions#Questions_for_people_thinking_about_applying_a_Creative_Commons_license_to_their_work)*Fixed the URL – original incorrect

    Creative Commons deems P2P file sharing and distribution a noncommercial
    activity. And yet there has been debate and confusion in this area. For example,
    is making and then distributing CDs of a track marked for noncommercial use
    still noncommercial if the distributor charges for “shipping and handling”? If a
    description of this same track is mined by Google Adwords to produce contextual
    ads directly related to the song’s content, is such a use still noncommercial?

    In its recent primer “7 Things You Should Know About…Creative Commons,”
    online educational resource Educause highlights some of these areas of confusion:

    Creative Commons is designed to be easy to use, but this
    simplicity comes at the expense of clarity at the extremes -
    determining what defines a commercial use or constitutes
    acceptable attribution can be tricky. The “share alike” principle,
    in particular, quickly runs up against difficult questions.

    A review of existing content marked with Creative Commons licenses finds that
    a vast majority of these licenses are Attribution / Noncommerical / No
    Derivatives. This designation indicates that most people who are using the
    system are doing so for promotional purposes – not to enable “remix” culture
    by allowing others to make derivatives or build off their work.

    Under U.S.
    Copyright Law,
    creators already
    have the right to
    waive their rights,
    give their works
    away for free or
    permit the use
    of their music
    for sampling or
    mash-ups.

    Under U.S. Copyright Law, creators already have the right to waive their rights,
    give their works away for free or permit the use of their music for sampling or
    mash-ups, without necessarily giving up their ownership rights. They also have
    the right to say “no” to licensing their works for uses with which they disagree,
    on creative or other grounds.

    So before making a choice to license away any right irrevocably, music
    creators should fully understand the terms to which they are agreeing – and
    the implications down the line.

  6. Posted by Steve Bowbrick on Tuesday 28th October

    We’re trying to find someone here at the BBC to write a more formal reply. As I’ve said before, I think that the BBC may legitimately challenge out-of-date or unhelpful copyright conventions where they can and where doing so would provide benefits…

  7. Posted by Alex Murray on Thursday 30th October

    It’s not unreasonable to say that the collection societies have a point: if you make your primary living from music, it’s got to be fairly galling for people to suggest you give it away and cease to claim earnings from your work (which, as far as I can tell seems to be model that begins and ends in broadcasting).

    But then when you look at what’s happened with royalty rates and internet v radio broadcasting in the US, it’s hard to have any sympathy for organisations that think that the internet radio stations should pay a higher rate than terrestrial broadcasters.

    I have occasionally made a bit of money from music but accept that you have to give away a certain amount of it for free to generate interest but I can understand whhy there is a degree of reticence over effectively handing over your livelihood for nothing because the audience want it for free. It’s a shame that reporting/collecting societies have been so slow to adapt to the changing landscape.

  8. Posted by Mike Dorey on Thursday 30th October

    Alex – totally agree. The problem isn’t actually with rights at all. The exploitation has been done by negotiation – it isn’t for us (non rights holders) to impose our will, frankly. What we *do* have a duty to do, though, is ensure that information on what is exploutable and what isnt (and why) is available: Thats what the BBC should be investing it. It’s important for licence payers to know why isnt available for them to see again or buy.

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