Scot Morris (APRA), Jessica Coates (cc-au), Elliott Bledsoe (cc-au), Frank Rodi (APRA). Not pictured: Paul Draper, Griffith University. More photos of the event.
The position in Australia is that APRA takes an assignment of the performing rights in the entirety of their members' music, past and future. This technically prevents APRA members from licensing their own music under Creative Commons licences (or any other open content licences)
Interestingly, Scot Morris (APRA) noted that “APRA artists have been releasing music under Creative Commons licences”, and noted that APRA wasn't going to stop people from doing so.
The major source of incompatibility between Creative Commons licences and APRA's blanket licences is that APRA collects for all public performances and communications to the public, while the CC non-commercial licences distinguish between commercial and non-commercial uses.
This leads to a position where APRA would normally collect on, for example, educational uses, whereas a musician who released their song under a CC NonCommercial licence would not be entitled to collect royalties for those classes of performance.
If we can get to a position where we can agree on what types of users are commercial and which are not, we would be closer to solving this problem.
Scot noted that APRA is increasingly able to collect detailed statistics of each song played by its major licensees. With some modifications to their database, they should theoretically be able to exempt agreed non-commercial uses from the tallies.
The real problem here, and what APRA are concerned about, is a possible diminishing of their bargaining power. APRA do not want to be in a position where their licensees can claim discounts on their licence fees (or totally avoid them).
This is the collective bargaining problem – if some artists start to freely licence their music to some users in return for greater distribution, it may have the effect of lowering licence fees.
Luckily, this appears to be a non-issue, because in Australia, the Copyright Tribunal currently sets the licence fees which collecting societies can charge.
Some artists may choose to give away their music to some users for some purposes on a non-remunerated basis. This may or may not weaken the position of the collecting society and the collective bargaining position of artists. This, however, is a much broader issue than Creative Commons licensing.
What we were mainly concerned with this afternoon is not about Artists who want to opt-out of the collective model, but about artists who want to provide some certainty to non-commercial users. Scot Morris noted that neither the record labels nor the collecting societies in Australia were eager to sue non-commercial users. The problem with this implied forbearance is that it provides no certainty to users and future creators. Admittedly, people mostly don't get sued until they are making money – but the threat is still a significant deterrent in many cases. The example that quickly springs to mind is Dean Gray, a (half-Australian) duo who remixed Green Day's American Idiot album, dubbed American Edit on a non-commercial basis, and were quickly ordered to remove it from the web. There are countless other examples.
Clearly, certainty is needed amongst non-commercial creators. Clearly, some artists are interested in providing that certainty through Creative Commons NonCommercial licences. The big problem is that they can't do that and simultaneously have APRA collect for them on their behalf. This is not about reducing the bargaining position of APRA, because non-commercial licensees typically pay a very small fee. It's about transaction costs. APRA are not willing to spend their members' resources to investigate whether a use of a CC-licensed track is commercial or non-commercial.
The problem lies in reducing this transaction cost to a point where it is outweighed by the benefit that non-commercial creators receive by having certainty in their actions.
I believe three things here:
certainty of non-commercial artists is extremely important – a simple 'understanding' that they 'probably' won't be sued unless they make the big time leaves them far too vulnerable;
the transaction costs on APRA's side do not have to be so big – if we can agree on which users are entitled to rely on a non-commercial licence, it means one more bit in APRA's database which notes that a particular track has been freely licensed for non-commercial uses, and APRA can simply not collect for those uses. The sampling that APRA has been using since its inception, and which is now much easier with increased technology, can already handle this;
the transaction costs of non-commercial artists in obtaining certainty is currently far too high, and can be effectively reduced by the provision of standardised licences like the Creative Commons licences.
I have a suspicion that a significant factor influencing APRA's reluctance to more closely examine this issue is that they don't want to consider having to reduce their licence fees to take into account users who use CC-licensed music. This certainly came out today, where the main concern seemed to be that Murdoch and Google would be able to exploit musicians by using Creative Commons licensed music. While this fear may be well founded, it is not relevant to the current discussion – neither Google nor Murdoch are non-commercial users; if we confine our analysis to the people who want to use both APRA and Creative Commons licensing, we are only concerned with the NC users. As long as we have a working definition of 'non-commercial' (something that CC has been working on, but needs finalising), this should be able to work with a minimum of hand-wringing.
If the real problem is the differing interpretations of when a use is commercial or not, lets fix it;
If, on the other hand, the real concern is about a loss in bargaining power, then that issue is relevant to the broader trend for artists to provide non-renumerated licences, and is not confined, or indeed relevant, to the discussion of non-commercial licences. It's a broader issue which involves convincing artists that it is in their best interest not to provide any non-remunerated licences, in the face of their demonstrated determination to do so.