On the 4th of February 2014 the European Parliament finally gave the definite approval for the Directive of the European Parliament and Council on Collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market). The rapporteur Marielle Gallo gave the good news of herself with the following tweet: “Long live the music TODAY: #EPlenary votes for EU-wide online music services.”
The novelties of this provision are very interesting and deserve to be analysed deeper under various angles. In this article we will highlight one of these aspects in particular, the obligation of the CMOs (the collective management organizations) to allow their member authors to use licenses in Creative Commons with the NC (Non Commercial) clause). We will focus in particular on the italian collecting society SIAE, but the conclusions can be generalized to any other european CMO.
As Paul Keller noted in the Weblog of Creative Commons, one of the most interesting things about the proposal is that, after approval, all european Collective Management Organisations will be obliged to allow its subscribed members to use Creative Commons licenses.
The proposal states in fact that:
“As far as non-commercial uses are concerned, Member States should provide that collective management organisations take the necessary steps to ensure that their rightholders can exercise the right to grant licences for such uses.”
In short, a member of SIAE and of any other CMO in Europe will be free to decide to release one of his/her works with a Creative Commons license with a Non-Commercial attribution, without having to give up the royalties for all the other works or for any commercial use of the works released in Creative Commons.
Why is it so important?
One of the points that I have criticized the most about SIAE is that once an author becomes a member of SIAE, he/she is obliged to deposit in SIAE all of the works he/she has written or composed. And in addition to that, it is impossible for him/her to choose which license is the most suitable for distributing that work, since SIAE gives permission for the works that are deposited to be used, only if they comply to traditional copyright rules, that’s the pure hard truth.
This means, for example, that if an author joins SIAE because he/she needs to collect royalties for the passage of his/her music on TV, he would necessarily have to put all the other works of his/her repertoire in deposit with SIAE as well. This would make it impossible for any of their compositions to be released with a Creative Commons license. This is not trivial, because in this way it would be impossible for authors to be able to give up royalties in case they perform for a charity concert, even if they support, approve of and even promote it.
I remember the case of a famous Italian musician who organized the production of a CD, with other important authors of the Italian scene, to give a moral and financial support to the people who had been struck by the earthquake in Emilia Romagna and Lombardia. The initiative was really commendable: all the proceeds raised for charity from the ticket sales were put in Banca Etica and the CD tracks were recorded and remixed at zero distance, by using the studios of nearby artists, so as not to affect the overall costs with extra travel costs, and the labels and associations that were to distribute the CD did not bargain for any percentage out of the project. There was only dark spot: none of the authors (all of them SIAE members) were given the permission or the possibility to give up their royalties in favour of the charity, because of the rigidity of SIAE. The SIAE strictly forbids all associated authors to chose to give up collecting royalties, even in the case of a non-commercial use of their works.
This has now changed. From now on, thanks to the new European Directive, all Collective Management Organisations have the obligation to allow all their members to be able to freely decide with what license to release their works. (For an overview of all the critical aspects concerning SIAE, we suggest reading the article “Does SIAE really protect authors?” in our Patamu.com BLOG).
The only problem that could arise would be, as often happens in Italy, that there may be a gap of time between the date of the approval of the Directive at European level, and the date of its transposition into Italian legislation.
What to do in the meanwhile then? Actually there are different paths that can be taken, and not even too complicated.
First of all, let’s remember that those who want to protect the paternity of their work without passing through the SIAE, and are not mainly interested in the indirect collection of the royalties, can subscribe to our free artworks protection service on Patamu.com. Our time stamp engine is a very valid alternative to the use of CMOs, also because it does not impose any exclusive to the authors: you can deposit your works with us and then deposit it anywhere else in the future, if needed.
For those who are instead interested in depositing the works and collecting the royalties, relating to a certain part of their repertoire, by using the indirect intermediation of a CMO, and leaving the other parts of their works free for non commercial use, then one can look at the rest of Europe. We recall in fact that Creative Commons has already set up some pilot projects with a few European Collecting Societies in Holland, Denmark and France. Therefore by subscribing to these Collecting Societies (or CMOs) one can already from today decide to release his works with Creative Commons licenses in case of non commercial use. This means that the collecting society will manage the collection of royalties only in the cases in which the artworks were to be used for profit. Here you will find a mapwith the costs and number of members of some of the Collective Management organizations in Europe, divided between those who are “Creative Commons friendly” and the more traditional ones.
Nevertheless, there is one remaining critical point to examine: imagine if I decided, for instance, to subscribe to the French collective management organization, SACEM, which is part of this pilot project. Imagine that I decided to release one of my works with a CC BY-NC-ND license. What would happen at this point if my work were to be used by the organizers of a charity concert in Italy (therefore abiding to the terms of the NC attribution), and therefore without filling out and paying the authorization form (borderò) that SIAE requires for all live concerts? Unfortunately, in fact, in the Italian territory, it is SIAE that manages the rights of the SACEM authors.; and SIAE makes no distinction whatsoever between commercial and non commercial use. We would thus reach the paradox in which SIAE, seeing the work listed in the archive of works it administers, would try to fine the organizers that were instead using the work under the terms prescribed in CC BY-NC-ND. Obviously in this case SIAE would be mistaken, since the organizers would be acting in respect to the conditions requested by the author and by the original CMO (SACEM), while SIAE would be incorrectly and inadequately implementing the “mandated” control on account of SACEM in the Italian territory. Therefore while awaiting for the proposal to become Law and be transposed also in Italy, we propose to explicitly, so to say, “hack” the system in the following way, by subscribing to one of the CMOs that are part of the Creative Commons pilot projects and to release some of the music in CC with an NC attribution (clearly declaring it in the CMO where the work is deposited and leaving SIAE to work itself out of the mess of its own accord). This would make the contradiction emerge, and oblige SIAE to upgrade, in order cope with the new authors needs.
In any case, the path towards a more open and free future is already traced: in two years SIAE and all the other European collecting societies will be forced by this directive to allow the use of free licenses in Creative Commons for their members, willing or not.
