CBC

The Canadian Broadcasting Centre, viewed from above. Photo (CC-BY-SA) Benson Kua.

To me, a license is a tool: it’s a means to an end. But that means that the tool ought to be doing the job you chose for it.

After news broke that the Canadian public broadcaster CBC was moving away from Creative Commons, we launched on CDM into a somewhat informal (and occasionally heated) discussion of CC licensing and specifically the non-commercial restriction most musicians attach to their music.

Here’s a summary of what I can conclude from those conversations.

  • Abuse of non-commercial CC material is rampant. Very often, publishers and broadcasters think Creative Commons material with non-commercial licensing is free for them to use when it isn’t. Almost all publishers fall under the category “commercial” – even “public” broadcasters like the CBC. That’s not to say CC is a bad thing – abuse of copyrighted material is rampant, too – but if well-meaning publishers are abusing the license, it’s an opportunity to educate people.
  • The CBC went to the opposite extreme. Tossing all CC music just because “most” is non-commercial doesn’t make any sense. There’s still a large volume of material that is explicitly free for the CBC to use that lacks the non-commercial restriction. It’s not hard to find, and the licensing – unlike NC – is very, very clear.
  • Some of you apply “non-commercial” because it’s really what you mean. Great! No problem! (Actually, one problem – see the first point above. While it’s an abuse of the license, you may find people blaze right past your “non-commercial” clause.)
  • Some of you apply “non-commercial” and it’s not what you mean. If you’re restricting uses under the license that are cases where you actually want people to be free to share, then the NC requirement probably isn’t a good idea. This is what ultimately prompted me to drop “NC” myself.

Matching the license to what you want people to do is important. It’s like putting up a big “KEEP OFF THE GRASS” sign and then wondering why no one’s dropping by for a picnic. Conversely, if you don’t want people to have a picnic, it’s well within your rights to post a “KEEP OFF THE GRASS SIGN” — and if it’s your lawn, frankly, it’s not my business. It’s the same with your music or images.

I still think that the non-commercial rule in CC is vague to a fault, though that’s best left to a separate discussion. And I don’t want to overstate my complaint. I believe the CBC is right – and I’m equally confident that CDM qualifies as “commercial” based on the previous CC study. So, the larger problem with non-commercial may not be that it’s unclear, but that it’s not understood – and that at least some of the musicians who are using it don’t understand the extent to which it restricts use of their work.

As for the CBC, Creative Commons has responded to the story, and have pointed out that there’s nothing stopping them from using CC works that are available for commercial use:

It is good to know that the CBC will continue to use CC-licensed works in some cases, and their explanation of why not in others. And it is true that only a minority of CC-licensed music is released under a license that permits commercial use — for example, about 26% of the nearly 40,000 CC-licensed albums on Jamendo.

However, as Michael Geist, Cory Doctorow, and many others have subsequently pointed out, CC-licensed music that does permit commercial use ought be allowed.

They also have some tips for finding music that’s free for commercial use, in case you’re looking yourself:
Commercial music guide on the CC wiki
Music on SoundCloud, Wikimedia Commons, Libre.fm

Read their full response:
On CBC podcasts and CC-licensed music available for commercial use [Creative Commons blog]
…as written by CC VP Mike Linksvayer. (Thanks, Cameron Parkins!)

Please keep off the grass

If this is what you mean, great! If not, then maybe you should rephrase your sign. Make sense? Photo (CC-BY-SA) Quinn Dombrowski.

Just as with production tools, I believe our role on CDM is to talk about how to best use the tools you want. Copyright, Creative Commons, public domain, open source, commercial, free, non-profit, whatever it may be can be a means to your end. So, I hope we’ll continue to follow this story and find some information that’s useful to musicians.

Someone in comments brought up the question of whether the music is crap. But, you know, as artists, I don’t think you even know the answer to that question. Mostly you want to find a way to do something with your s***, and hope, at least, it’s good s*** someone enjoys. Carry on.

  • http://ugocapeto.blogspot.com ugo capeto

    call me real stupid but if i am a somewhat commercial entity and i make some dosh using some guy's stuff (which i got for free), ethics would tell me to give back some of the profits to that guy even if said guy said it was ok to use for commercial purposes. Dunno, it just seems like a fair deal to me. Maybe i am old fashioned. to be honest, most people don't really think twice about the boxes when they do the CC stuff because they kinda assume there ain't gonna be that much interest anyway.

  • http://ugocapeto.blogspot.com ugo capeto

    i fully understand CBC's decision and i am not even canadian. Say you're a guy that put up some muzak under CC with ok for commercial use and 1 year later, there s a commercial on the tele with your stuff. i am pretty sure you're gonna say you acted under the 'not knowing what i was doing' when i checked the CC boxes and there's a gonna be a lawsuit in the air. As a company, you want to protect yourselves from possible future problems and quite frankly it's better for everybody to use an ironclad contract to get rights to some material. If it's to feed some guy's blog, then it's a different story and it's probably what most people envision their CC stuff to end up.

  • http://hendersonsix.com Henderson

    Thanks for the "keep off the grass" analogy Peter, can I use that next time I have to explain somebody the merits of a NC license? ;)

  • http://www.createdigitalmusic.com Peter Kirn

    @ugo: Well, no. You're not ethically bound to give people money for something for which they didn't ask money. That doesn't make any sense at all. So, if something is marked non-commercial you can't use it — not ethically, not legally. You're violating the law and the license if you do. If it is NOT marked non-commercial, you're free to use it in a commercial, revenue-generating activity.

    I do think there's some confusion about what "commercial" endeavors are. Despite the casino-like shenanigans of our speculative financial market, most businesses break even or lose money – period. And most profit winds up getting reinvested in the business. It's simply not accurate to assume that because something is "commercial," people take revenue and go buy yachts for themselves with it. On a grand scale, that's why things like Canadian public broadcasting or our NPR in the US — not-for-profit entities — do have profit-bearing activities that nonetheless don't make them into for-profit businesses. They engage in commercial activities without being for-profit, private entities. But none of this matters — whether you're a single blog with Google ads or the Shell Oil Company, you have to follow the rules of the license, because the person who owns the material is the one with the copyright. If they want to give it away, that's their right, too.

  • http://ugocapeto.blogspot.com ugo capeto

    A guy that allows commercial use doesn't really expect his stuff to be used commercially. Trust me, next time around, he ain't gonna put commercial use in his cc license. Would you?

    Well, yeah, of course CBC and NPR are commercial entities, they are non-profit but generate dosh, just like universities and the likes.

  • http://ugocapeto.blogspot.com ugo capeto

    I think it would be real interesting to give an example or 2 of people that allow commercial use and their stuff is generating a good amount of money for whoever uses the stuff commercially. it might be more common for open source software but for music, i dunno (kudos for those that allow it).

  • http://www.createdigitalmusic.com Peter Kirn

    @ugo: Then that person should use ShareAlike. I'm sorry, at a certain point you have to put some responsibility with the artist. If they can't be responsible and informed about what they're doing, it's no one's problem but their own. And if they're mindlessly uploading content to the Internet without reading fine print — as many people are — then their problem is much bigger than Creative Commons.

    I don't know of any instances in which people are making huge profits off CC-licensed work in some exploitative fashion, which is why you haven't seen those examples. ;)

    This is the closest case:
    http://creativecommons.org/weblog/entry/7680

    CC the organization was unfairly sued in that instance. The advertiser – on several counts – disobeyed the terms of the license, and the right of the subject of the photograph to her image supersede CC or copyright law anyway. (Your likeness has a separate set of rights.) If the advertiser had followed the CC license, meanwhile, there would not have been a problem — and, in fact, they would most like have had to pay license fees. CC does not replace copyright.

  • http://ugocapeto.blogspot.com ugo capeto

    yes, Peter, that what i am saying. people that allow for commercial use don't really expect their stuff to be used commercially (a blog using adsense is not my idea of a commercial venture although it is by definition), it's just to allow their stuff to be even more open which is quite admirable.

    For the non commercial clause, yes, it means what it says and it's pretty clear for everybody. Remember that a good portion of people assume everything under CC is free for the taking so i am not sure who's not reading the fine print. I would also dare to say that some people (a lot?) also assume that what's on the internet is free for the taking as well but those are just newbies (hmmm).

    to be honest, i just wanted to plug my website :)

  • http://ugocapeto.blogspot.com ugo capeto

    Let me ask you this, Peter. Say CBC ok's the use of CC stuff with commercial CC stamped on them. What happens if the stuff is not what it seems and actually is fully protected because it kinda belongs to somebody else than the guy that put it on the internet? Now, what do you do? I can't blame CBC for not wanting to touch that stuff no matter what the CC clauses are. What do you think?

  • Kim

    Peter please comment on what ugo capeto said, as I have wondered whats to protect anyone from this scenario also. That very point has kept me from using anything but that witch I have created myself.

  • flonk

    I still find this atttude shockingly anti-musician.

    So the old music buisiness model was the middleman gets the main cut and the musician gets only a tiny fraction.

    And now the middleman can "pay his bills" and the musician gets nothing at all.

    <blockquote cite="Peter Kirn"> You’re not ethically bound to give people money for something for which they didn’t ask money. That doesn’t make any sense at all.

    This refered to a commercial endeavor only. People using a non commercial licence do think that way. Its not hard to understand. Its not like they're buying yachts or something.

  • http://www.createdigitalmusic.com Peter Kirn

    @flonk: The business model is up to the artist. If you feel that way, DON'T USE CREATIVE COMMONS. Or DO use the non-commercial restriction. I don't understand why my position is anti-artist. I'm repeating terms clearly set out by the licenses artists are choosing.

    Also, I'm not a middleman. I'm both a Creative Commons user *and* a publisher. And I publish under a BY-SA license. Look at the logo below. I don't use NC.

    The odd thing is, a torrent site IS a middle man. So why is it okay for torrent sites to torrent CC-licensed music, but not for anyone to put together a podcast with a couple of ads that cover their costs? I just don't understand.

  • http://www.createdigitalmusic.com Peter Kirn

    @ugo:

    Well, it's absolutely a problem if you use content that you think is CC-licensed and it's not. ASCAP has made that argument. On the other hand, while it is true that it's easy to upload content that isn't yours and tick the CC box, it's so easy to do similar things without a CC license that I can't really blame Creative Commons. You just have to be careful.

    That comes back to the self-policing issue. Remember, at this point it's really an issue with CC or Copyright, as far as I can tell.

  • http://www.createdigitalmusic.com Peter Kirn

    Just to be absolutely clear:

    If you don't think CC is a good deal for you, don't use it.

    I'm not sure why that's rocket science. We're talking about a lot of people who think it is a good deal.

  • http://ugocapeto.blogspot.com ugo capeto

    i don't use it but i don't mind discussing it because a lot of people don't really know what it means in practice. it's not rocket science but there is lot of funny stuff that can happen.

    For instance, is it ok to take or stream stuff from, let's stay, good ol' archive.org which has tons of CC non-commercial music to feed a blog with adsense?

    is it considered non-commercial use? do you need authorization from the holder or is it considered an automatic ok because you give the guy exposure in return?

  • Greg

    @Ugo.

    Learn to read.

    Seriously.

  • http://ugocapeto.blogspot.com ugo capeto

    @Greg.

    Learn to be less rude.

    Seriously.

    Just say it's been discussed before or just give the answer since you seem to know quite a bit.

  • y

    the bottom line is:

    there is no money for the music…no matter what's the license.

  • y

    and you Peter are a middle middle middle man…fully.

    you even make money writing about the CC licenses.

  • http://soundcloud.com/verysharpknives EvJ

    The main problem I have with CBS's decision is that they appear to only have been interested in CC music as a free resource to exploit, and not in the music itself. As soon as they realised that they would have to seek permission (not pay, just seek permission) to use it, they've decided to only use CC music in non-commercial programming, where it is cost and effort free. If they're not willing to put a boilerplate release form on their website and direct artists to it when their work is playlisted, they can't have been very interested in the music artistically.

    When a company only has to ask nicely to get the media content it needs, I have little sympathy if they can't be bothered doing so.

  • TheAlphaNerd

    I have now missed the captcha twice… and lost two overly wordy diatribes so I'm going to simplify it

    @y

    suck a lemon… Peter is a Curator not a middle man… Your wording implies he is writing about CC solely for the moneys… which couldn't be further from the truth. So go read some other blog, its a big internet, and we don't need you here

    @all

    I understand anti-corporate / anti-capitalism sentiment, but unfortunately our world runs on dollars and cents not happiness and favors… There comes a tipping point where you start to shoot yourself in the foot with your virtues… talking shit about Peter Kirn is a great example.

    If you want to share your stuff for free, share it. If you want to make some money, make some money. At the end of the day we are all artists here (so I hope), so lets show some respect

  • http://www.createdigitalmusic.com Peter Kirn

    @y: Sorry, having trouble typing here on my poweryacht as we tear through the Caribbean. But you've got a fascinating point — when I make music or write words, I'm a middle man, not a creator. Makes perfect sense. Keep going.

    @EvJ: It's *CBC*, not CBS. Think Canadian public radio, not Letterman. Think government funding. And they're still *paying* creators through blanket licenses elsewhere, so they're hardly on a mission to exploit artists.

    Everything is not free – absolutely agree. Not free for me, not free for anyone, not in this dimension. So free has to have value for you. Couldn't agree more.

    @TheAlphaNerd: Well, look, they do have a point — if artists think they're getting a deal that doesn't make sense to them, they should bail. I agree.

    And, yipes, I'd better fix the captcha/comment interaction — we were trying something new; obviously have to iron out the bugs. We should shortly fix that and also will have a system by which it's easier to log in and avoid the hassle completely, edit comments, etc.

  • TheAlphaNerd

    @Peter

    How can you afford your own poweryacht… must be with all them exploitation dollar :D

    I do understand that they have a point regarding stuff not being used for corporate gain… I just think that there should be some respect for the difference between corporate greed and sustainability. If everyone just tried to be sustainable (with their income, spending, and usage of materials) it would be a much better world. Simply not participating in an economy doesn't solve anything

  • http://www.createdigitalmusic.com Peter Kirn

    Well, but that brings up a good point — my strong guess is that the people who are CC license users are people who lack the budget to spend money to license images. By and large, it's not big corporations, because they can afford the cost — direct, and in terms of staff and overhead — to contend with traditional licensing.

    So, yes, you may risk some big company coming along and licensing your stuff. But if you want your neighborhood blog to use it, maybe that's worth the risk. (I don't mean me as the blog, either — this is what I think about when I'm considering a CC license.) And maybe in reality it isn't a risk at all. For instance, I'm happy to drop a non-pro image in for free, even if it looks a little rough around the edges. It has character. Would I pay for it? Nope. Would I expect people to pay for some of the things I produce? Not at all.

    But why this bothers people so much, this quality issue, even, I'm unclear on. I mean, if a kid gives you a drawing, you put it up on the fridge; you don't question whether it's "serious art." You make a personal connection. Hopefully, CC helps people do that. Now, the argument could well be made that the problem with CC isn't that it opens up sharing, but that it's anonymous — and that's indeed a place where perhaps it could improve. A little flag could pop up and say, "hey, I just used your work." Frankly, if I got that kind of feedback, I'd probably post more sounds, images, etc.

  • http://www.createdigitalmusic.com Peter Kirn

    Oh, and since some people take me seriously: I only own a poweryacht in my mind. Only in my mind.

  • http://www.soundcloud.com/thalphanerd TheAlphaNerd

    I think it would be interesting for people to take a look at this post

    http://createdigitalmusic.com/2008/02/19/we-need-

    I think that there is a big difference between the CDM advertising model and the corporate advertising model… more like quid pro quo IMHO

  • http://www.fumbata.com Fumbata

    Thank you all for the enlightening discussion. Your clear arguments have prompted me to change from NC to SA.

    I had already given up my hopes of owning a poweryacht, anyway.