Section 55 of the Copyright Act provides a statutory licence that allows 'manufacturers' to record musical works for retail sale, or for making other records for retail sale. The scheme is remarkably convoluted, and there are a number of restrictions – most importantly, a licensed recording of the work must have already been available for at least one month.¹⁾

The statutory licence extends to copyright in the lyrics (literary or dramatic works) that have also been recorded with the music and released in Australia.²⁾ In compliance with the statutory licence, the manufacturer must give notice to the owner of the copyright in the musical work and pay a royalty to the owner.

The first thing to note about the statutory licence is that it only applies to musical works and the associated lyrics. It will not apply to recordings at all. This means that it might be possible to record a new cover version, but the licence provides no latitude for remixing an already recorded track.

So, today's question is – under the statutory licence, can I record a cover version and release it under a Creative Commons or other open licence?

The statutory licence provides no clear guidance as to what licence can be applied to a cover version. However, several restrictions apply to widespread distribution under the licence.

The first is the requirement that the record be made for 'retail sale'. This requirement is further limited to exclude sale for “a consideration not consisting wholly of money” and sale by anyone “not ordinarily carrying on the business of making or selling records”³⁾ So, people distributing their own recordings on the internet for no fee are out of luck. Licensing to Apple for sale on iTunes is presumably allowable, but selling on your own website for a nominal fee is probably not, unless you are ordinarily in 'the business'. But here we run into another problem – the statutory licence covers 'records', not 'recordings'.⁴⁾ It refers to physical records, and is certainly not technologically neutral. So electronic distribution appears to be right out.
A certain amount of 'gratuitous disposal' is permissible – that is, you can give away records at your gig or elsewhere, as long as you're planning on selling a substantial proportion of the records, and you pay royalties on each of the records you give away.⁵⁾

The next question is whether, if you do manage to satisfy the requirement that you sell the records, what licence can you apply? Well, to the extent that you own the copyright in the recording and any new music and lyrics, you can apply whatever licence you like. However, the statutory licence provides no rights for downstream users. So while you could technically stick a CC sticker on your cover record that you're selling (or giving away), you would have to specifically exclude any claim over the original music and lyrics.

Practically, what does this mean? Simply put, downstream users will have no right to copy or remix the record unless they can separate out your new material (that is not based on the original material in any substantial way) from the original, which is unlikely. So, in terms of electronic distribution and downstream licensing, the statutory licence is fairly underwhelming.

APRA/AMCOS maintain that “Lyric changes and parodies of works must have been cleared directly with the copyright owner.”

This conclusion appears to be supported by the wording of s 59, which allows lyrics to be recorded in conjunction with the musical work only if “those words, or words substantially the same as those words, were sung, or were spoken incidentally to or in association with the music” on an existing (licensed) recording.

There is also a conspicuous absence of a provision for literary or dramatic works in similar terms to that in s 54(1)(a), which states that

a reference to a musical work shall be read as a reference to the work in its original form or to an adaptation of the work.

So, under the statutory licence, it appears that modifying and interpreting the music is permissible under the statutory licence, but modifying or interpreting the lyrics is not.

Under the previous law, s 55(2) provided a requirement that the recording artist not 'debase' the musical work, but this condition was removed with the introduction of moral rights into the Copyright Act.⁶⁾ Now, the style of the cover is governed by the moral right of integrity. Interestingly, because we still do not have much guidance on the meaning of the moral right of integrity, a case under s 55(2) still provides the best assistance for determining when the moral right will be infringed.

The Federal Court and the Full Federal Court on appeal considered the meaning of 'debase' in the Carmina Burana case.⁷⁾ The question in that case was whether four techno remixes of the chorus of Carmina Burana 'debased' the original work. The Full Federal Court found that the techno remixes did not 'debase' the original. Importantly, Wilcox J held that the qualitative analysis need not be technical – because the term 'debase' is a strong one, for it to be applicable, “the adaptation must be so lacking in integrity or quality that it can properly be said to have degraded the original work.”⁸⁾ His Honour concluded that the requisite level of quality is quite low, noting that “[i]t is difficult to think an adaptation that has its own integrity could be so characterised, even if it is musically inferior and however radical or distasteful (to some) it may be.”⁹⁾ Justice Lindgren agreed with Wilcox J, noting that

an arrangement will be less likely to be a debasement where, as here, it is an arrangement which 'makes available' the original musical work to the musical tastes of a different period of time or of a different subculture, or (as here) of both, and which thereby acquires its own integrity.¹⁰⁾

It is likely that in future, courts interpreting the concept of 'derogatory treatment' in the moral right of integrity with relation to cover versions will follow a similar approach – meaning that a cover version will have to be extraordinarily bad in order to infringe on the original author's moral rights.

This analysis shows some flaws in the statutory licence for the digital age. Primarily, it does not apply to electronic distribution at all. Additionally, by focusing on sales, it fails to take into account other methods of licensing music and other business models.

The argument can be made that the licence compensates musicians by providing royalties on sales, and that adequate compensation would not be payable if the cover version were made available under the open terms of a CC licence that allows unlimited distribution and remixing. Perhaps this is a valid argument, but it needs to be examined in detail. Is there some acceptable form of statutory licence that would allow for open licensing of cover recordings? How would we go about compensating the original author in such a situation?

Today I finished EFA's submission (PDF) to the Department of Broadband, Communication and Digital Economy’s Future Directions review.

The submission tackles a number of important issues for the digital economy, including open access to public sector information, electronic accessibility of printed material to people with a print disability, broad-based ICT training, and copyright policy.

We conclude the submission with a reminder that our policy framework ought to empower Australians to access and build upon information in the digital economy:

As Australia transforms into a knowledge based economy, the policies we choose to adopt for the creation and dissemination of information become crucially important. It is becoming increasingly clear that greater access to information and greater technical and legal abilities to remix, build upon and improve that information are fundamental drivers of innovation. EFA believes that the single most important issue in an innovation policy is ensuring that Australians are empowered to innovate, and that the barriers we impose to innovation are justified with reference to our social goals.

I would like to express my thanks to all those who helped to write the submission. As far as I know, this was the first open collaborative submission produced by EFA. A number of people were involved in contributing to its development on our public wiki, which helped me immensely. I'm very grateful to the mostly anonymous editors. This process gives me high hopes for the future development of EFA as an inclusive volunteer based organisation.

Last week I was fortunate enough to attend Commons Crossroads, the Creative Commons Asia Pacific 2009 conference organised by Creative Commons Philippines and supported by Arellano law school.

The event was fantastic. I learnt a lot about what the other jurisdictions' Creative Commons projects were up to, and we discussed the future of Creative Commons projects in the Asia Pacific region.

One thing I want to focus on today is what I learnt from Creative Commons South Korea.

Judge Jay Yoon (pictured right) is one of the project leads for CC South Korea. He's incredibly charismatic and obviously cares very deeply about his volunteers. They're the other five people that came with him to Manila for the conference (four of whom are pictured above). Each of these volunteers gave at least one excellent presentation at the conference, and they're just 5 of a team of 30 or 40 volunteers in Korea. They were each enthusiastic and very intelligent and would obviously have a lot to contribute to the CC KR project.

One of the things we've always struggled with, both at CC Australia and EFA, is how to effectively use and manage volunteers. We often have people who tell us that they would like to help, but we haven't been able to convert a lot of that into usable energy. The blame lies completely with us – I would assume that it's not the volunteers that are different here. So what can we do to better harness our volunteer bases?

I asked Judge Jay Yoon and the CC Korea volunteers for their opinion. Before I did, though, one thing I really noticed was the genuine care that Judge Yoon has for the volunteers. He visibly encourages their participation and provides support. I really suspect that the key to successfully managing volunteers is compassion, enthusiasm, and leadership.

When I spoke to the CC Korea team, they told me that volunteers come in from all over, and seem to come in fairly large batches. The existing volunteers spend a considerable amount of time introducing the new volunteers to the organisation – even running classes on copyright law to get everyone up to speed. They see a fairly strong drop-out rate – up to half of the volunteers don't come more than few times – but have regular meetings to ensure that momentum continues. Meetings and organisation seem to be a bit of an adhocracy at times, with self-organising groups forming around particular projects.

As far as institutional support goes, the CC project has some limited funds to help and encourage the volunteers – they all get business cards, which helps with group identity, and there is some funding support available for travel to events such as this conference. Mainly, however, I got the feeling that the volunteers took away a sense that they were really helping with and participating in something exciting. The enthusiasm shown by both the project leaders and the participants was actually quite infectious.

One thing that was interesting was Judge Yoon's comment that he felt that he needed to employ one or two full time community managers to continue working with the volunteer base. This is certainly something that we've neglected in the past – usually because all of the team is too busy already to dedicate serious time to community management.

All of this is particularly important to my new role as head of EFA. We've been a fully volunteer-run organisation for the past few years, and we simply don't have the labour force on the Board to do everything we want (indeed, even to keep up with what we need to do). I have recently been trying to grow our volunteer base as a response. I am trying to encourage interested people to help write submissions (eg, DBCDE submission, due tomorrow) and other materials, as well as other projects we're working on. It has so far proved a fairly slow process, but I have high hopes. I think that primarily I have to lead by example and communicate some enthusiasm to potential volunteers. I think I also need to reduce barriers to participation – I've now created a wiki and broken up many of the projects into smaller tasks. Importantly, I think I also need to create some sort of feedback loop, so that I can effectively communicate my appreciation to everyone who helps out in the project.

I would be interested to hear other peoples' experience with volunteer management. If you have any tips on how we can be more effective – i.e., get more done – then I'd be happy to listen. I think that a large mistake that we have made in the past has been to focus exclusively on the tasks at hand and not worry enough about how we can distribute the load – meaning we don't get as much done as we could.