Sunday, February 20, 2005

Modern Day "stamp act" and music vs. Creative Commons

There is a phenomenon whereby DJs will spin records in public venues so that that patrons of that venue might dance. There are, of course, various strictures about the public performance of recordings that are part an parcel of the "reserved rights" of the ...well of either the creator of the music or the entity to which the creator has transferred those rights through some agreement involving compensation. At any rate, there is a "music licensor" who is the artist or the label, and there is a "music licensee", who is the purchaser of the music, and whose license is generally limited to personal use and no copying. Purchasers of the music wishing to play the music to an audience must pay the licensor, who then grants rights to that licensee. To facilitate this, there are those organizations that the music licensor and venues belong to that ensure that when music is played by those licensees who are allowed to play it publicly (radio stations, clubs, arenas, for example) that the royalties for playing that music are collected (BMI for one, in the US). There are also records shipped specifically for promotional purposes, where the radio station doesn't even need to purchase the music, and somewhat counter to the whole thing, the record promotion companies pay money to the radio stations usually referred to as "maintenance fees" (not to be confused with "payola" where individual radio DJs would be paid to ensure record airplay)

Now, there are the "DJ's set", which may or may not be legal depending on the venue's disbursement of royalties to the proper organizations, and then the mashups and the remixes and the compilations and all these other blends of music that are recorded and fixed in some media that are popular, but which are basically illegal "derivative works" *unless* the music licensor has granted rights for these to the people who make them.

So the music's licensor/owner/creator can reserve as many rights as they please, which means they may choose to relinquish some. This is what the Creative Commons license facilitates, providing a well crafted "access port" in the copyright that relinquishes some rights, in the interest of an improved licensee experience in the hope of making music thus licensed more appealing.

Now, because of the spread of modern DJ'ing, where the DJ's set is crafted as a blend of beats and music and thousands of songs can lay on a hard disk to be thus blended, a good DJ can be very well compensated, and so as licensee wants to use the music in his possession for commercial purposes. This is largely where the "line is drawn" in any of these licenses: once you set out to make money with another person's music, you have to compensate that person in some manner they agree to. In reality, that "another person" is usually a record company, of course, but the point is that the licensor is due their compensation because it's their music (regardless of how you might regard record companies). To complicate things, the line between "producer" and "DJ" has been blurred to a significant extent, where the DJ produces recorded music from fixed pre-assemblies, and the producer proper might use some fixed pre-assemblies and live musicians. The nature of the fixed pre-assemblies in question in either case (commercially produced full songs not intended for creative re-use or loops/sounds from sound libraries primarily intended for creative re-use) and the licenses which the user has to produce music from either of them are the key here.

Having said all that, it is the case that in Europe, music is "tagged" a lot like software, and if a DJ cannot prove that they legally purchased the music, they can be fined. Sometimes, they can be fined A Lot. Moreover, in many countries, they cannot play MP3s in this way-- the "MP3J" concept is illegal . Now, they may be able to if the original "stamped" copy of the item the MP3 was derived from accompanies them, or at very least later prove in court that they were using music they had purchased, simply converted to a more convenient form, but in either event they risk some legal entanglement.

This sort of law is perfectly reasonable on one hand and slightly insidious on the other. What it does is to protect the licensor and uphold copyright, but it also serves to enshrine a particular type of distribution channel as the only bona fide source of licensable music. You can buy an MP3 album on line with the full support of the artist/licensor. Download it, burn it, save it on your iPod. It would be the case that you would still need to compensate via usual channels when using this music for commercial purposes, but personal use rights are greatly expanded, and you can sample, purchase immediately and conveniently. In the case of CD Baby, the artist need only create a few physical copies for digitization pay a small fee for registration through CD Baby, ship the copies to them, and then the digital distribution occurs through CD Baby's partnership channels. The general strategy is this- if you have an established act, you do your CD, duplicate a 1000 or so, send a few in to CD Baby and then sell the rest at shows.

It's just very convenient for the artist, and you can adjust the amount of work you do to achieve the desired effect. Just like not all potters want to become Pottery Barn, not all independent musicians want to become Major Label Artists. So either the modern day "stamp act" will need to accomodate this new channel, or the differences between high quality independent and major label, and their respective audiences, become more pronounced.


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