Creative Commons Licenses and the Music Industry

Rami Olwan

1
Abstract:
The music industry has been facing many problems lately especially those related to digital
technology and the internet.
Lawrence Lessig, a leading scholar in cyberspace law argues that copyright law needs to be
adaptive to the current situation.
His provocative ideas have found application with the establishment of the creative commons
organization.
The paper tries to give a better understanding of the creative commons movement and its
relevance to the music industry. The paper will give an introduction to creative commons
organizations, and the different licenses it offers especially those related to music. The main
purpose of the research is to asses to what extent creative commons model offers better solutions
and opportunities situated to the needs of the music industry. I will conclude the paper by
providing my own assessment of the model and the movement in general.

Introduction

In 2001, after the passage of the Digital Millennium Copy Right Act (“Act”), a

group of intellectual property experts got together and established Creative Commons1,

they believed that the Act is going too far in protecting the interests of the copyright

owners on the account of the users and the public. They developed for that purpose a

series of copyright licenses that would increase the amount of creative material available

online and reduce the restrictions and costs associated with accessing that material. 2

Creative common’s model has enjoyed a high adoption rates in the online music

community and a significant portion of electronic music scene3 has aligned itself with the

creative commons model. 4

This model is worth of examining especially because of its spread, popularity and its

ambitious outlook not only to the musical work, but all forms of content used online.

The purpose of the paper is to give a better understanding of the movement, and its

relevance to music industry.

1
Terry Flew, creative commons and creative industries, available at eprints.qut.edu.au/archive/00002188/01/2188.pdf (last visited
December 19, 2006)
2
Ibid
3
See for example many independent music sites such as: Dance Industries (http://www.dance-industries.com/home.php), DMusic
(http://www.dmusic.com/), Garageband.com (http://garageband.com/ ). Also many record labels have utilized the creative commons
licenses and they include: The Loca Records (http://www.locarecords.com/index2.html), Magnatune labels (http://magnatune.com/),
Textone (http://www.textone.org/) and others.
4
Bjorn Hartmann, Netlabels and the adoption of creative commons in the online electronic music community, icommons book, 149-
153, available at http://fr.creativecommons.org/iCommonsAtTheDigitalAge.pdf (Visited on November 3, 2006).

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My task in writing this paper is not an easy one and that is for the following reasons:

creative commons movement is still new, and constantly developing for the needs of

music, and it will remain to be seen to what extent it can alien itself more to the needs of

the music industry.

Also, I am limited in the number of pages I can write, and hence I have to be specific as

much as possible. I will only concentrate on creative commons licenses and examine their

relevance to music.

My paper will proceed into four sections; in the first section, I will speak briefly about

the current problems that the music industry is facing. In sections 2 and 3, I will give a

background to the creative commons movement, and I will examine what it offers to the

musical world. In the final part, I will provide my own assessment of the matter.

1. What kind of problems does the music industry face?

The internet was called the “big copying machine” and the biggest threat to copyright

since its inception5; this is because it has made it simple for any basic internet user to

make virtually unlimited copies of music, videos and other creative works with the same

perfect quality. Artists and entrainment industries have tried hard to prevent illegal

copying6. They have lobbied for more powerful laws and filed lawsuits against all

copyright infringers both publishers and end users. They have also examined and still

examining all possible business strategies to stop infringement, but what was the result?

With all these efforts the music industry is still facing many problems especially those

related to the piracy over digital networks and no matter what is done infringement is still

taking place. The more there are technological and legal measures to stop legal copying,

5
MICHAEL CHISSIK, Copyright and the internet, Field Fisher waterhouse,
6
See the Sampling Licenses, Wall Street Journal, available at http://creativecommons.org/audio/wsj (last visited on December 16,
2006).

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the more there are always new means to reproduce and infringe musical works. Creative

commons has realized what is happening in world of the digital music and has therefore

wanted to offer something new for the benefit of both owners and the public, but did

creative commons succeed in offering anything worth of adopting by the music industry?

What creative commons do to help artists and musicians? Does creative common’s

model corresponds with the needs of all parties in the music industry?

I will explore first what is creative commons all about? And then I will asses its relevance

to music.

2. What is Creative Commons all about?

No one can explain creative commons better than Creative Commons Organization

represented by its founder Lawrence Lessig, who explained that:

“ Creative Commons aims to “ build a layer of reasonable copyright on top of the

extremes that now region” it does this by making it easy for people to build upon other

people’s work, by making it simple for creators to express the freedom for others to take

and build upon their work. Creative commons license is constituted of, a legal license, a

human readable description, and machine- readable tags- constitute a creative commons

license.7

It is apparent that creative commons is all about licensing. Through the creative

common’s website, artist can place his music in the commons subject to the restrictions

and the conditions of the license he has chosen. The licenses will allow anyone to use the

work subject the following conditions: attribution, no commercial use and share.

7
See LAWRENCE LESSIG, FREE CULTURE, available at www.free-culture.cc/freeculture.pdf (last visited on December 16, 2006).

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Creative commons licenses are expressed mainly in three ways common deed (for

layman) legal code (for lawyers), and digital code (for machine) that allow the users to

search for shared music and other content.

There are basically three kinds of licences realted to music and these inlcude: Standard

license, sampling and share music. There are three types of sampling for music and these

include: Sampling, Sampling Plus, and Noncommercial Sampling Plus8.

All creative commons licenses allow copying, distribution, public performance and

display of the work without any license payment9. In addition creative commons licenses

do not interfere with fair use rights, first sale or the freedom of expression and the

musical work can not be used with DRM systems.10 .Creative commons licenses run for

the entire duration of copyright in the work and apply to the whole world and can not be

revoked.11

Artists can chose mainly between two licenses and these include: “non-commercial

license” and “commercial reuse”. If the Artist picks the first option, he will retain his

right to collect royalties from BMI, ASCAP and his mechanical rights from Harry Fox

and other royalties as well. On the other hand, if the artists allow commercial re-use, he

waives his exclusive rights to collect the royalties.12 After this nutshell idea about

creative commons licenses I will examine below their importance to the music world.

3. What Creative Commons Offors to Music business?

Bjorn Hartmann, a musician who argues that creative commons non- commercial

licensing scheme represented by the creative commons is attractive for artists, netlabels,

8
id
9
MIKKO VALIMAKI, “THE RISE OF OPEN SOURCE LICENSING”, 156, (2005), available at http://www.valimaki.org/ (last
visited 19 December 2006).
10
id
11
See EMA Pike, What you want to know about creative commons, available at http://www.bmr.org/page/article-4 (last visited on 19
December 2006).
12
see Creative Commons website at http://www.creativecoomons.org, (last visited on December 19, 2006)

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owners and audience for several reasons and these include: promotion to the artist and his

records that will allow him to reach larger audience and build upon reputation, it foster

interaction between music members and encourage artistic and future exchange, and it

will allow artist to have freedom from economic pressure of big companies in releasing

any kind of work even with limited kind of appeal13.

It is argued that creative commons is beneficial for artists and small labels and this is

because it will allow them to reach the public with their artistic creations, bypassing

traditional distributors and publishers. The emergence of creative commons model may

have an affect on the music publishing business, but to what extent? Will it change the

face of music business?

I believe not and this is because the relationship between the parties involved in the

music business is not that simple as it may appear, and artists have to think many times

before providing their work to the public under creative commons licenses. Artists are

dependent on the work of others; most of them are not good in marketing and they have

to get help of others and this will not allow them to be free in their decisions in placing

their work under creative commons model. But can we say that creative commons is

good for certain artists and not good for the music business in general? Let us examine

that below.

4. Is Creative Commons Good for Music Industry?

The internet not creative commons make disintermediation or cutting the middle man

possible and that will ultimately lead to the question why do we need record label and are

they necessary at all in our world today? Why not skip them and go to a direct

relationship between artists and consumers? This is because creative commons is all

13
HARTMEN, supra note 3 at 149

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about skipping the intermediary. Will big record companies agree on licensing their

music under creative commons model?

It is argued that they would not and that only small record labels have agreed to license

their work under the creative commons model, but big record labels will never agree to

that model. This is because record companies, publishers make a lot of money out of the

current copyright system and the creative commons model will jeopardize their revenues

and even their existence.

Artists has signed thousands of agreements with the recording companies and publishers

and its yet not clear how creative commons model will fit within those agreement signed

previously. Most of the Artists from the most famous to the least one, have already

assigned their rights to the collecting societies. They will obviously not be in a postion to

assign their right again to the public or the commons. In the end it is argued that the

creative commons model is not helpful for the music industry in general and it can only

be useful in limited situation.

Conclusion

Lawrence Lessig argues that “the creative commons system is the system that balances

the interests of the artists and record companies, and publishers with the interests of the
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public”. But he does not tell us how and why he believes that it does balance the

interests of the parties involved in the music business. The main question that remains to

be answered through out this paper whether creative commons helps at all the parties

involved in the music business and if so, to what extent?

It is argued that the creative commons model is helpful in limited situation and not in all;

this is because, the model helps small artists and record companies to advertise their

14
id at 309

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work, but the model will be determinate to the large corporations and record labels since

they may lose their revenues if they have followed the creative commons license model.

It is a system that appeals promising for independent artists for whom free samples,

distributed online, might represent an attractive marketing option or for some visionary

people who believe that making it easier to share music can be an important part of the

humans’ creative process.15

Are we therefore able to conclude that creative commons is not really helpful to the

music business?

It is argued this there is no easy answer to this and this is because creative commons

system is constantly developing and its might develop in the future to fit more with the

needs of the music. But surely we can say that the current system does not fit within the

aim of the big records labels who want not only survive but make profit.

It is argued that the creative commons model is a noble project that aims to get music to

the whole world, but it does give a clear picture of how the diverse set of interests of

publishers, record labels and artists will be fulfilled? How are they will be generating

income?

We live in a very demanding world and artists have to give a lot. Artists will not change

the current system and follows a different model even if appears to be noble in its

purpose. Until now, creative commons model does not offer a clear view of a better

alternative for big corporations and even artists16. It will remain to be seen to what extent

creative commons will have an affect on music business in the future and alien itself

more with the interests of the music business.

15
See for example Minister of culture, Brazil, Gilberto Gil, who provided some of his music along with artists like David Byrne, for
the free culture and encouraged others to remixing and swapping it online. Brian Braiker, A Legal way to share music online,
available at http://www.msnbc.msn.com/id/6186259/site/newsweek/ (last visited on December 19, 2006).