Nina Paley’s Numbers: CC Licensing for Profit

Some of our readers may remember a post about a year ago about a cartoonist named Nina Paley and her copyright difficulties.

A short recap: Nina produced a film based on the Indian tale Ramayana intertwined with Annette Hanshaw’s jazz music. Although the sound recordings Nina used were in the public domain, the copyrights on the underlying musical compositions were not. Nina did not get permission to use the tunes and thus infringed the copyrights. Her settlement with the various rightsholders had a step setup, the more she sold, the more she had to pay to the rightsholders. Deciding that releasing her movie in the traditional way wouldn’t make her any money because most of the money would go to the rightsholders, Nina decided to release her film under a Creative Commons Attribution ShareAlike license.

The Wall Street Journal recently ran an article describing the profits Nina has made in the nine months since releasing her film, Sita Sings the Blues, under CC-BY-SA. The short article lists each source of revenue for Nina’s $55,000 total. It generally appears to be saying that CC licensing can work for smaller, professional artists, like Nina Paley, as well as the big guys that are always talked about, such as Nine Inch Nails.

There are a few more pieces of information, which the article does not cover, that give a better view of how successful CC licensing has been for Nina.

In the presentation on which the WJS is reporting, Nina reports that it cost her $80,000 to make the film, $200,000 if you include her cost of living during this time. Compared to the $55,000 she’s taken in so far, it seems like the CC licensing really isn’t working that well for her. However, when Nina approached independent distributors prior to releasing the film, she was told she would probably make only $10-$25,000, $50,000 absolute tops ‘in her wildest dreams.’ Now, comparing what she has made so far to what the distributors expected her to make total, she is doing pretty well.

A better tally of how she has done would include how the Sita copyright issue and subsequent CC licensing have increased Nina’s income from her other works by increasing her visibility; how much she makes from speaking engagements (which she says are her most lucrative work); and how much more she would have paid out under her settlement agreement had she released the film in a more traditional manner. Since all of these things only add to what she has already made, it’s clear that releasing Sita under a Creative Commons license was a good choice for Nina.

For more information on all the different ways Nina is capitalizing on CC-licensed Sita Sings the Blues, see: http://blog.ninapaley.com/category/sita-sings-the-blues/.

Cover Tunes, More Fun and Safer!

Cover songs can be really fun, especially when they’re done in such a different way than the original that you notice something new about the music.  The groups Vitamin String Quartet and Apocalyptica are famous for these types of covers, redoing heavy metal and pop music in orchestra styles.

Lately, this Ipper has discovered a different type of cover music in a similar vain.  A lone viola player covering currently popular hip hop tunes.  Oddly enough, that’s a combination that delights this particular listener.  However, this cover artist does things a little differently than the ones mentioned above.  Instead of just adapting the tunes for the viola and playing them, he plays along with the actual hip hop songs.  This is either more costly or more dangerous.

It is more costly if the artist has the permission and necessary licenses to release tracks where he plays along with the original songs.  It is more dangerous if he does not have permission.  This has to do with the different rights in a sound recording of a song as compared with the underlying composition itself.

The underlying composition, the only thing used by groups like Apocalyptica, has one copyright.  That’s it, one.  The copyright in the music itself.  That copyright might be shared by multiple writers, but that doesn’t matter.  To use the music, a person only needs to contact the song’s publisher and make an arrangement to use the work.

But to use the whole entire recording of a song requires a lot more work and a lot more money.  The recording involves a lot more people with rights.  It’s no longer just the publisher.  It’s also the performing artist, the producer, the record label and possibly other publishers depending on who has contributed to the final version of the song that gets released.  Basically, it’s a big, costly, mess.  And that’s if the user gets permission!

Of course, if the user doesn’t get permission, he doesn’t have to deal with that whole mess.  Instead, he is liable to all those people for infringing their different rights, copyrights, mechanical rights, performance rights.  If the user did a cover of only the musical composition itself, without permission, then he is only liable to the publisher.  Either way, the user is better off just covering the tune and not playing along with the original recording. 

(And one humble opinion here is that his music would actually be much better if it were just him and the viola, without the background noise of the original works.)

 

goldenrail would like to thank Justen Barks for his assistance with this post. a favorite of the viola tunes.

Photo credit: Blinged out Viola cc-by-sa goldenrail used Pegs of a viola cc-by-sa by Lemondedo, available at http://commons.wikimedia.org/wiki/File:Pegs_of_viola.JPG

Santa Cruz, Japan?

One thing the Ippers like to do on this blog is discuss strange IP sightings, things they’ve seen that look like they could include an intellectual property issue. This past weekend the Ippers had a splendid one!

Ipper dtrizzle and his friends take an annual camping trip to Big Basin Park, and for the past two years, goldenrail has been fortunate enough to go along. This weekend excursion always includes a Saturday afternoon spent at the historical Santa Cruz Boardwalk. In addition to the amusement park rides, sandy beach and cotton candy vendors, the Boardwalk features a large arcade. A large arcade with one of dtrizzle’s favorite games, Street Fighter II.

While dtrizzle was busy proceeding through the game, destroying every opponent in his path, goldenrail was standing idly near by, occasionally watching, occasionally peering at other nearby games. Next to Street Fighter II stood a game called drummania 10th Mix. Similar to the drum set portion of Rock Band, the screen rolled through lists of “popular” songs from which the player could choose. The reason I say “popular” in quotes is because the game billed the songs as such but none of them were familiar. It soon became apparent why.

A young boy came over and plopped a few tokens into the game. As the game began its warm-up cycle, a license flashed on the screen, “This game for sale and use only in Japan.” (goldenrail wasted a dollar in tokens attempting to get the notice to reappear for a picture, but it did not. She already knew she is terrible at fake music games and did not need an attempt to play drummania 10th Mix to reconfirm this for her.)

It’s possible the game was sold in Japan, but it was certainly being used in not-Japan. This explained not only why the songs were not familiar, but why so many of them were in a mix of English and Japanese, and why the screen often flashed Japanese warnings. [If anyone would care to translate the warning to the left, the Ippers would be most obliged.]

There are several reasons a game like this might have such a licensing restriction on it. This Ipper thinks it most likely that the licenses obtained by the game owner for the music included in the game are not international licenses. International licensing in music can be very complicated, often requiring dealing with collecting rights societies in each country where the music will be performed. It is also quite common for different parties to own the rights to the same song in different geographical areas.

Another possibility is similar geographical restrictions on patents that might be part of the game. Or, perhaps there is an agreement between manufacturers and distributers that certain versions of the game only go to certain regions, or that only one distributor may sell in a given area. Maybe the licensing restriction has to do with delayed release dates, with the games first being made available in Japan and other countries needing to wait (similar to Hollywood movies in the US verses elsewhere.) These reasons are all speculation of course; the real reason for the licenses restriction is not clear from the license notice itself. One thing, however, is clear: that game does not belong in Santa Cruz, California.

Purchase your own drummania 10th Mix here.

An Easy Way to Explore Software Licenses

This Ipper recently finished a new book by Douglas E. Phillips called The Software License Unveiled: How Legislation by License Controls Software Access. Although, as her co-worker quipped, it is quite odd to think of software licenses in burkas (and thus able to be unveiled), Phillips does a good job explaining the true meaning of most software licenses.

[right: 3 software licenses hurry into the darkness to avoid unveiling. Burkas by Roy Evans Miranda, cc-by-nc.]

Although I think Ipper Dtrizzle would have been a more ideal audience for this book, having a background in both law and computer tech, I still found the book very interesting and readable. Despite my stumbling through part of the tech details, I think even someone with no law or tech background could find a read through The Software License Unveiled quite rewarding. Anyone who’s clicked “I Agree” on their computer screen will find some interesting morsels in it.

The Best Parts

Phillips does a good job of providing a lot of background, especially when it comes to the history of software development, the Free Software movement and the expansion of restrictive licensing terms. [Indeed, this book saved me from much embarrassment by teaching me about Richard Stallman; his name came up several times in conversations at work soon after I read about him.] The discussion of Free verses proprietary software is nicely balanced. Phillips points out the good and bad sides of both types of licenses, as well as suggesting changes from which both types could benefit.

I especially liked the reading-level and grade-level analysis of various software licenses. Users of Microsoft Word may be familiar with the Flesch-Kincaid grade level system. - My sister and I often competed to see who could get the higher grade level. It wasn’t until her fiancé was in med school that we even realized it went above 12. Dtrizzle prefers to compete for the lowest grade level. - Not only is it neat to understand how this system works, but it’s also very interesting to see how different licenses compare to each other. Let’s just say, there’s no way my sister could beat the standard Free Software license (esp. GPLv3), and no way any of the proprietary of Free licenses could beat Dtrizzle (except maybe the WTFPL).

Some Concerns

One of Phillips’ premises startled me a bit. He claims, throughout the book, that software licenses are fully binding between the user and the company. My law professors have constantly insisted otherwise, including my Intellectual Property Licensing professor who said the licenses were invalid adhesion contracts. At this point, I don’t know which side to believe. Phillips presented a few cases to support his claim, but I would have liked to see more. The book also had a few minor typos, but since it’s been a long while since I’ve read a book without any, I’m beginning to assume this is standard.

Go For It

In his conclusion, Phillips says: “This book has suggested that the proliferation of legislative licensing undermines the efficiency of both models and threatens to take the digital economy in the wrong direction.” If this was his goal, he has succeeded. Phillips has done a good job of explaining the problems caused by long, detailed, inaccessible and forced licenses. He discusses the damage these types of licenses do, no matter the type of software they are attached to, and expresses some hope for changes that bring growth to the software industry and power to the user. If you’re at all interested in privately made “laws”, technology and its legal framework or the history of the software industry, you’ll enjoy taking a gander at The Software License Unveiled.

Bibliographic Details: The Software License Unveiled: How Legislation by License Controls Software Access, Douglas E. Phillips, hardcover $85.00, Oxford University Press, ISBN 978-0-19-53187-4. Less than 200 pages. Small and light. High ability to fit in laptop bag. Moderate risk of making you look like a geek in public (the cover’s got some techie looking pictures on it, inside of a computer, circuit thingy, guy with weird sensors on his fingers…).

Disclaimer: I was asked to read and review this book. I was not asked to like it.

Did You Read That?

I actually, occasionally, read the terms of service and licensing agreements before clicking “Agree” for websites and software programs.  Apparently I’m a bit odd in that sense.  Even my Intellectual Property Licensing professor said she doesn’t read them.  Sometimes I’m just curious, sometimes I really care, sometimes I don’t have the time or energy.  One of the biggest factors in my decision to read is whether there are other options for similar services or if I can tailor my use of the site to fit only the terms to which I agree.

A Little Comparison

For example, I reluctantly joined Facebook a few months ago but my only ‘picture’ is a black box.  Why?  Because this is the Facebook Terms for users’ content include:

“you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License")” (emphasis added)

Facebook has really cleaned up their terms of use (compare to prior), but I don’t like that “transferable” part in there.  Why does Facebook need the right to transfer the license I gave Facebook for my work?  If another company were to buy Facebook, it would want all the license rights to the content on the site, but I might not trust the new owner anymore than I trust Facebook.  [And, when I joined, Facebook’s terms included a provision allowing Facebook to use my content commercially.  I presume this was because Facebook runs ads on the side of the page, but it was a term with which I am not comfortable.]

I was able to choose not to post photos on Facebook because there is another option; Flickr.  The Yahoo! Terms of Service that govern for Flickr include this nice little tid bit:

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. (emphasis added)

See that nice little “solely for the purpose of…” clause.  I love that.  Yahoo! needs the mentioned license rights in order for Flickr to do what it’s supposed to do.  But, I have no desire to give Yahoo! those rights for something like handing my photos out on flyers at a conference (unless, of course, they’re cc-licensed in a way that allows this).  Yahoo! doesn’t try to grab more rights than it needs.  Beautiful.

Surprises

Sometimes, a license agreement or terms of service can be pleasantly surprising.  Sometimes, surprising in a not so pleasant way.  The Microsoft Terms of Use are actually pretty easy to read and navigate.  On top of that, the company does a decent job of explaining the nebulous concept of fair use, explaining that “[I]n limited situations, you can use copyrighted works without permission from the copyright holder.”  But the really great, and extremely surprising, piece in the Terms of Use is the mention of and support of Creative Commons licenses.  Creative Commons and Microsoft are usually assumed to be on opposite sides of the battlefield.  It’s great to see Microsoft recognizing the value CC licenses provide:

Creative Commons licenses are a simple way for you to let people know what uses they can make of your creative works and under what conditions.

Google Chrome, on the other hand, has a not so great surprise in its terms:

“12.2 Google may at any time, terminate its legal agreement with you if: (A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms)”

In general, the way software licenses work is that if you use the software, you’re agreeing to the licensing terms and therefore using it with permission.  If you were to use the software without permission, you would be committing copyright infringement because of the unauthorized reproductions of the copyrighted elements of the software.  So, if you breach a provision of the Terms so that you are no longer an authorized user, you are now an unauthorized user and continued use constitutes copyright infringement.  Copyright infringement is very expensive if you are found liable.

Incidentally, Creative Commons licenses have a very similar provision in them.  “This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License.”  This term makes sense in CC licenses because the license is specifically granting particular copyright rights for a copyrighted work.  If the person won’t agree to the terms for these rights, then the person who owns the rights doesn’t need to grant them.  i.e. If I’ll let you sit in my chair as long as you won’t stab it with your pocket knife and you insist you want to stab it with your knife, there’s no reason I should let you sit in it.

The license agreement for a piece of software, such as Google Chrome, contains many more issues than just copyright rights.  For example, Google’s Terms include provisions about information storage, disrupting service, removing content and protections for their software that go beyond that covered by normal IP laws.  In this case it’s like I’m saying you can sit in my chair, but only if you don’t stab it with your knife, do eat potato chips tomorrow, never step on my lawn, and only cry on Thursdays.  If you happen to cry on Wednesday, you can’t sit in my chair.  Whether or not I let you sit in my chair has a great deal to do with how you’ll treat my chair; it has nothing to do with when you cry or if you step on my lawn.

Will I still use Chrome?  Yes.  Why? Because there aren’t any terms I see myself not being able to follow.  The other terms are generally agreeable to me.  And, I find Chrome to be my best option for browsers.

The key to reviewing terms of service is to know what you are willing to accept for a specific service and what will never be acceptable no matter how great the service.  And have fun reading, you never know, you might be surprised!

Can I Get that in Twitter?

According to a recent US cellular company commercial, 26% of people have no idea what Twitter is.  But those of us who do are quite familiar with the little blue twitter bird, the who-goes-there owl, and the most amusing Fail Whale.  We may also be aware that Twitter doesn't really have much of a business model.  There have been the usual discussions of monetization: bringing in advertising, selling to Google, etc.  But, with the popularity of its intellectual property, Twitter may not need to monetize its service.  It can license its icons.

There are already a few Twitter-related products out there.  Zazzle has a complete line of Fail Whale items, including baby onesies.  Walmart has a line of bedding that includes owl and bird shaped pillows that quite resemble the twitter characters, as well as sheets sporting a variety of small twitter-shaped birds.  It is unclear if any of these items are actually licensed from Twitter, but it does show there is a market for Twitter merchandise.

Perhaps it's time to think outside the box and look to sources beyond the internet for revenue.  Twitter has branded itself well and, unlike most internet services, has associated some cute and loveable characters with it.  Fail Whale might not replace Mickey or Hannah Montana, but there are certainly people who like to see more of him and his pals, offline. 

(I for one, would like some twitter-bird covered fabric to make a nice sundress.  But then, I am typing this in a dress printed full of ladybugs.)

Confusion in the Minds of On-line Content Post-ers

The Vanderbilt Hustler printed a short article this week entitle "Facebook: Price of a Profile."  (Online version: "Vanderbilt Students Remain Unconcerned with Facebook Terms Change")  Part of the article discusses why some people in the Vanderbilt community did not care about Facebook's new terms of service, which recently caused such a massive uproar. 

The article also shows us misconceptions held by people who use sites like Facebook or post content on-line in other fashions.  Some of these misconceptions are rather disturbing.  These are smart and probably fairly tech savvy people at a good school, yet they seem to have little understanding of their own rights in their content.  The following are quotes included in the article:

• "...as soon as you join you lose rights because it is posted on the internet." - a sophomore student
• "If you put it on a Web site... It's in the public domain." - a sophomore student
• "As I understand it, the old license gave copyright to the user, while the new one gave ownership to the Facebook corp."  - an associate professor

The first two misconceptions are about posting content online in general and are related to each other in that each student believes that by posting their content online, they have given up all rights to it.  This is not true.  Simply posting content you created on the internet does not mean you give up your rights to it. 

In most cases, the site to which you post your content will require you to agree to license your content to them for certain uses.   The sites will at least require you to license your content to them for the purpose for which you are using the site.  For example, Blogger requires that you agree to license to Google (which runs Blogger) a "worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content on Google services for the purpose of displaying and distributing Google services," i.e. you are allowing Blogger to post your writings.  Other sites, such as Facebook, use a much broader license that includes rights to use your content commercially, change your content or sublicense your content out to third parties. 

These licenses define how the company who manages the site you are using may use your content, they do not mean you have given up all your rights, and it certainly doesn't mean your content is in the public domain.  The public domain consists of works that are no longer covered by copyright protection.  Either the term of copyright has expired, or the creator has chosen to put their work directly into the public domain for anyone to use freely with no requirements (example).  While posting your work to the internet does put out there publicly, it does not put it into the public domain.

Lastly, neither the old or new(revoked) Facebook terms of service gave ownership of the content to Facebook.  The difference between the old, reenacted, Facebook terms and the new terms was that the new terms did not allow users to revoke the broad license included in the terms of service by removing their content.

These misconceptions may tell us a bit about how users perceive on-line content in general, aside from their own postings.  We'll explore that more next time.

How Feasible is Licensing by the Regular Folk?

The internet, computers, technology, are all commonly cited as part of the problem with protecting intellectual property rights.  It's too easy for anyone to get access to anything and do whatever they'd like with it.  But this increased flow of information and new found ease of connecting with people has also been cited as a bonus to helping IP rights owners receive their dues. 

Things that used to be seen as uncontrollable uses of works, such as photocopying of journal articles, are now seen manageable.   Technology has not only increased access to works, it has increased access to rights-owners.  The barriers to getting a license have supposedly been removed and anyone should be able to follow the proper protocol and use licensed works.  But how realistic is this? 

I decided, as one of the regular folk, to attempt to license a piece of work for use on Ip's What's Up.  Both of the Ip's What's Up ippers are huge fans of Aaron McGruder's The Boondocks, both the strip and the television series.  This strip seemed perfect for a post I wanted to do called RIAA for President (and Congressman and Supreme Court Justice).  [The post was to be about how long concerns of the RIAA taking over the US government have been around.]  So, I set out to do the right thing and get a license...

Attempt to License

Why try?

The first question you may ask is, "why bother trying to license; why not just use the work?"  The answer is simple: Fear.  The forces that be (especially in America) have done a good job of scaring people into an underground creativity bunker.  The message: Don't even think about using ANYTHING.

But what about fair use?

Those of you familiar with copyright law might be asking, "why not just use the work in a manner that would fall under the fair use exception carved out in Sec. 107 of the US Copyright Act?"  The simple answer is a sarcastic laugh.  A more detailed answer can be found on page 98 of Free Culture.  Fair use is a defense to use in court - what regular folk has the money to go to court to use this defense?

Getting a license... maybe

I receive (legally, from an authorized website) The Boondocks strip each day by email.  The emails contain a little link that says I can click to license a work.    "Wow!  This is great,"  I thought, "They really do make  it easy for anybody to use their work legally."  I clicked on the link.

That link took me to a general Universal Press Syndicate webpage about licenses for all the comics to which they own the rights.  After sorting through all the information and finding what I thought was the correct place to put in my request for the specific strip I wanted, I was taken to page long form that asked for specific information.  At this point I was thinking, "ok, this is a bit cumbersome, but the instructions aren't bad.  After all, there are a lot of different rights and aspects to those rights."

Then came the pricing. This was a bit surprising.  Ip's What's Up is a blog on the web, therefore, it's accessible by anyone in the world.  World rights = $100.  That's kind of a lot of money for a student, but I figured if I was going to try to do this the right way, I'd pay.  There was no information on the expected time-frame, and I was in no hurry, so I did not select the rush service.  I submitted the form and waited.

That was 3 months ago.

So is it feasible?

Ease of Use

For the average person sitting at home creating art on their computer, without a background in copyright law, the information for which the form asks can seem a little excessive and could discourage some from proceeding.  This could easily be remedied by including little explanatory boxes on the form where users could click to find out why it matters where they're work is going to be accessed.

Price

While $100 is a small amount compared to most regular licensing agreements, it's still probably a lot of money for your average at-home creator.   Imagine if $100 was the standard fee for using any work on the internet.  A standard remix video could easily run into the thousands of dollars.  While it might be more fair to base the fee on the use, the set amount offers a certain appeal in its ease.  Perhaps though, it's too early to set prices for licenses to regular folk.  The market hasn't yet decided what's appropriate or what's too extreme in either direction.

Response

The complete lack of response from Universal Press Syndicate, in a three month time span, pretty much completely shuts down individual licensing for the average folk.  People sitting at home, creating on their computers, in their spare time, generally aren't going to have the time or resources to follow up on a requested license.  There's also the likely-hood that the new work is relevant to current events and will no longer be relevant (or that the creator will have lost their enthusiasm for the work) by the time the rights-owner gets around to answering requests.

Making it Work

Individual licenses for regular folk to use existing intellectual property in their new creations could work.  The ability for people to easily contact rights-owners has created an opportunity where none existed before.  However, two things need to be taken care of first.  The market needs to figure out the acceptable price range for individual regular folk licenses, and the turn-around time needs to be made very short so that licensing the work you want to use is a realistic option.

Once general content users have the ability to license material for use in their own works in a realistic and economically feasible manner, many of the other problems associated with intellectual property and the internet will decrease.  When works are used legally in derivative works there will be less need for take-down notices, less lawsuits and more sharing of creativity.

Follow-Up to: Developing Decent Digital Distribution Solutions

In our previous post, Developing Decent Digital Distribution Solutions, Ip's What's Up reported about a Vanderbilt University class called "Stealing in Music City" where the students had to develop a new digital distribution system for the music industry.  The three student groups presented their solutions last week Tuesday, December 2nd.  The video of their presentations is now available on YouTube and VUCast.

The video itself is almost an hour long, and Ip's What's Up doubts many of its readers have time to watch the whole thing.  We wanted to summarize the groups' projects for you.  Unfortunately, the Nigerian internet didn't like that plan.  So, we offer you a summary of the first group and most of the second group.  (Our apologies to Group 3.  We are sure you put a lot of effort into your project as well and will report on it as soon as we're able.)

Groups one and two each consisted of three, visibly nervous, first-year students.  It is apparent from their presentations that they learned a lot about copyright and the music industry during their semester and that they put a lot of work into developing their solutions.  We hope their professors are proud of them and will continue the seminar in the future.

Group 1

The first group pulled ideas to improve the music industry from a variety of sources.  They talked about revising the copyright law to make it easier for artists, consumers and labels to understand, particularly the areas relating to ownership, fair use and the public domain.  That's probably good for everyone, except the attorneys.

On the production end, the group adopted the licensing model mentioned by David Byrne in a Wired.com article.  Through the group's version of this model, artists could only license their recordings to a label for a limited time, rather than assigning the entire copyright to the label.  (The label would not be allowed to own any masters.)  The group adopted this plan because they believe labels play an important role in promoting artists but also think artists should have more say in their careers.

On the distribution side, the group incorporated two ideas supported by Professor Michael Bressman.  (Professor Bressman teaches the IP Clinic at Vanderbilt law and visited the undergraduate class as a guest speaker.)  The group suggested an increase in the number of legal online music distribution sites and that these sites should use monthly fees rather than per song payment arrangements.  The group seemed unaware that there are more music download sites than iTunes, but perhaps that was just their example.  [Some music sites: iTunes (the standard), eMusic (which is monthly subscribtions), amazon.com (drm free), napster (the newer, legal version), payplay.fm, puretracks, there are many more.  Note: Some of these will not work outside the US.]

The group also looked at changing social norms, turning illegal downloading into something un-cool instead of something normal.  The ideas here were a bit reminiscent of anti-drug and anti-gang programs (Downloading Abuse Resistance Education?), and made this Ipper feel rather old.  Their suggestion: include internet safety and copyright in the existing elementary school computer classes.  These classes already teach students how to type and use the internet; they should teach how to do it safely and legally.

In addition to incorporating music downloading etiquette into computer classes, the government should also use things like pamphlets and public service announcements to educate people about piracy.  They suggested these tools be a bit less extreme and a bit more honest than the RIAA's versions.

Overall, it seemed the group attempted to address several different aspects of the music downloading issue: the relationships between people in the industry, the availability of legal downloadable music for consumers, and the social norms that still seem to lean towards acceptability for illegal downloading.

Group 2

Group 2 took a different approach and developed a unique system for digital distribution.  They described it as using the technology of file sharing but ensuring artists and labels get paid.  Their system consists of a government run network that sounds sort of like a Facebook for record labels and publishing companies.

Record labels, publishing companies and independent artists with more than twelve songs can sign-up to be part of the network.  They will get their own page that they can design however they'd like.  They can use the page to promote different artists, activities and events, and to offer downloads of their catalogues.  (The reason for the minimum of twelve songs has to do with balancing the costs and benefits of the system for independent artists.)

The consumers choose from one of various subscription levels.  Each subscription allows them to share a certain number of files per month, with the platinum level giving them unlimited access.  The prices for these subscriptions are intended to be fairly low in order to shift the economic supply curve: lower cost = more downloads.  It's a little confusing if the "sharing" involves offering tracks already in consumers libraries for upload/download by another, or if it really just means downloading from one of the label/publisher pages.  (This may be clarified later in the group's presentation, if anybody is able to watch the whole thing and can add some clarity to this point, please leave a comment.)

The government is in charge of setting up this network and managing it, as well as acting as a sort of collecting society for all transactions on the network.  The group chose the government to run the network in order to eliminate the cost created by a middle-man like iTunes and because they felt the government would bring a certain neutrality, less focused on profit and more focused on boosting the economy and supporting the industry.

Although similar in some ways to existing on-line stores, their system seems to present some unique ideas.  If it does indeed involve file sharing with a collecting society-type entity tracking, it offers some definite benefits over existing on-line music options, like locating those hard to find remixes.  There would be a lot of details to work out before such a system would be viable (such as ensuring that tracks are properly identified), but it's certainly an interesting idea to ponder.

 

 

{related to digital distribution...]

Alphabet War

About a month ago, Ip's What's Up posted an entry about the status of collecting societies in Nigeria.  The main issue is the ongoing feud between the two former collecting societies, MCSN and PMRS, and the Nigerian Copyright Commission (NCC).  Well, it looks like the beef is getting bigger.

The Guardian newspaper published a story this past Friday about allegations flying back and forth between MCSN and the NCC.  The news article is a bit cryptic, especially for those of us who are not fluent in Nigerian English, but it appears that the NCC and MCSN are on opposing sides in two different matters.

MCSN v. NCC

First, there is the old matter of MCSN suing the NCC (as its counterpart, PMRS is doing) over the Collecting Society Regulations and the section of the Copyright Act that authorizes these regulations.  (For those who are interested, the MCSN suit is: Musical Copyright Society of Nigeria LTD/GTE v. Nigerian Copyright Commission, SUIT NO. FHC/L/CS/478/2008, but this Ipper has no idea where you can find any reporting on the case.)  Basically, MCSN claims that the relevant sections of the Nigerian Copyright Act violate MCSN's fundamental human rights as protected by Sections 40 and 44 of the 1999 Nigerian Constitution, as well as violating Articles 10 and 14 of the African Charter on Human and Peoples' Rights.

NCC v. MCSN

The Guardian article discusses a second conflict between the NCC and MCSN.  According to the article, the NCC is currently investigating MCSN based on a complaint from the International Federation of Phonographic Industries.  The complaint alleges that MCSN is pirating films, both reproducing them and publishing them.  (Publishing, under the Nigerian Copyright Act, is making a work available to the public.)

MCSN claims that this complaint never existed and was only fabricated by the NCC in order to make it appear that the NCC's raids on the MCSN offices were justified.  NCC says it's legitimate.  MCSN says that NCC is harassing MCSN and its affiliates by questioning collecting societies in the UK (Performing Rights Society and Mechanical Copyright Protection Society) and raiding MCSN offices in Nigeria.  NCC says it had to question the UK societies because MCSN claimed to have received authorization for their alleged pirating behavior from those societies.

Clear as Mud

This Ipper is quite confused by all of this, and doesn't really know what to believe.  Both parties involved in this battle have been known to spin things a little bit away from the truth.  What is certain is that MCSN does not have authorization to act as a collecting society, and that, in general, the NCC has authority to conduct investigations in matters of alleged piracy.  The Director General has stated that MCSN cannot receive authorization to become a collecting society until it meets transparency requirements.  MCSN seems to think there it is actually some sort of NCC vendetta that is preventing MCSN from receiving authorization.  Both parties claim to be acting in the best interests of copyright and the artists.  Maybe some readers can shed some light on the situation.

One thing is clear, whatever is going on here, it's not doing anybody any good, especially not the artists.

Anybody Feel Like Starting a Collecting Society?

Nigeria is desperately in need of one.

What is a Collecting Society?

For those who are unfamiliar, a collecting society is an intermediary between the user of a work and the owner of the copyright in the work.  An artist's work can be used by millions of people any where in the world at any time.  Logistically, it's impossible for one artist to monitor all the possible places where the work might be used.  The collecting society pools the resources of many artists and does this monitoring for the artists collectively.  There are many different types of collecting societies, such as performing rights organizations and reproduction rights organizations.

The Situation in Nigeria

There are currently no collecting societies in Nigeria.  This has been the situation for the past three years.  Grab some popcorn, and enjoy a little drama-filled story.

One, Two, None - the Background

Once upon a time Nigeria was a British colony.  The British Performing Right Society (PRS) represented the colony's musical artists.  Sometime after gaining independence, Nigeria decided it didn't want any foreign owned companies operating inside it's borders.  So the Nigerian section of PRS became MCSN, Musical Copyright Society of Nigeria.  And everything was fine.... Or so it seemed.

The Nigerian government was concerned that the lone collecting society was taking advantage of the artists, taking too much of the royalties for itself and not accounting completely for what it had collected.  The government decided to do something about this and issued the 1992 Copyright (Amendment) Decree.  (Laws of the Federation of Nigeria 2004 Cap. 28 Sec. 39.)  This decree authorized the Nigerian Copyright Commission to set up regulations for collecting societies and required collecting societies to register with the Nigerian Copyright Commission.  The Commission's regulations went into effect in 1993.  (Copyright (Collecting Society) Regulations, 1993.)

MCSN applied for approval but was denied.  The Commission said that MCSN was being sneaky, not disclosing enough information about the royalties it was collecting for its artists.  Like the Itsy-Bitsy Spider continually going up the water spout, MCSN kept renewing their application, but down came the Commission and denied it every time.

The Commission did recognize the importance of collecting societies, so, in 1994, it helped form a new organization, PMRS, Performing and Mechanical Rights Society of Nigeria.  This made MCSN really angry.  Some people thought there should only be one collecting society in the country, and MCSN was there first.  MCSN kept trying for approval, and the Commission finally granted the approval in 2005.  Within six months the President of Nigeria revoked the approval and removed the Director General of the Commission.  The Director General's law firm had represented MCSN in the past and the President felt there had been a conflict of interest.

Somewhere in all of this PMRS and MCSN discussed merging.  The merger talks fell apart, and during this time PMRS's registration lapsed.  And then there were none.

How the Situation Sits Today

Both MCSN and PMRS claim to be proper collecting societies in Nigeria (as can be seen from their websites.)  Both are currently suing the Nigerian Copyright Commission.  Neither can collect royalties for their supposed clients.  Artist are not getting paid, and they're losing out on other opportunities.

International companies, such as MTV, don't know who to pay, so they don't pay anyone.  Nigerian superstar D'banj recently explained to the House Committee on Information & National Orientation that he and several other Nigerian music stars have well over $30,000 each sitting in a bank account in South Africa.  In MTV's bank account.  MTV doesn't know who to pay, so it's holding the money until it knows who to pay.  It's nice that MTV isn't spending the money, but the artists would really like to get it sooner than later.  In the meantime, the artists don't get paid.

Whenever MCSN or PMRS attempt to bring a lawsuit on behalf of one of their artists for infringing performances, the court throws the suit out citing a lack of standing by the plaintiffs.  Restaurants, hotels, bars, clubs and even radio stations know they can't be sued for playing music without paying royalties.  They play whatever they want, whenever they want.  (On the upside for listeners, this produces a lot of really neat remixes, recently featuring a number of Obama's speeches mixed-in.)  The artists don't get paid.

D'banj has also highlighted another way in which the lack of collecting societies is hurting artists.  Nigerian artists are losing opportunities to reach world-class stardom (and at least get royalties from other countries).  International superstars (including R.Kelly and Snoop Dogg) have approached Nigerian artists about doing collaborations.  These types of collaborations could turn Nigerian artists like D'banj or 2Face into the next Akon, a household name around the world.  But the deals fall through.  Why?  As D'banj put it, the artists ask a simple question for which there is no answer, "How do we get our royalty?"

The Questions

Now, being a lowly little intern with no collecting society experience, this sad soap has left this Ipper with some questions.  Perhaps some fellow IP enthusiasts can shed some light on the subject.

Why can't the artists just collect the money MTV owes them by themselves?  Does it have something to do with agreements they may have signed with MCSN or PMRS?  Is MTV somehow prevented from working directly with artists?

Is there any reason interested people with the available capital couldn't come in and start a new collecting society in Nigeria?  One that complied with the provisions of the Copyright Act (Sec. 32B in this version) and the Collecting Society Regulations?  Would the government allow it?  And if it is possible, where can we find these interested people with available capital?  The artists are suffering.

And lastly, can the international superstars stop worrying about getting their own money from Nigeria and collaborate with these amazing Nigerian artists anyway?  Please!

 

 

Image credits: map outline from About.com:Geography; D'banj photo courtesy of goldenrail; 200 Naira notes courtesy of Encyclopedia Britannica; 5, 20, 50, 100 and 1000 Naira notes courtesy of Statni vlajky sveta; diagonal bills courtesy of Hit Naira; all images (minus D'banj photo) found using Creative Commons, but I couldn't always find information regarding the license for the images.

This Creation is Not for Your Enjoyment

Several recent experiences have reminded me first-hand that our current IP system is broken, and it needs to be fixed.

Desiring to listen to some music, I attempted to go to my pandora.com account.  I couldn't.  Why?  Copyright laws.  What I got instead was this posted notice:

Dear Pandora Visitor,

We are deeply, deeply sorry to say that due to licensing constraints, we can no longer allow access to Pandora for listeners located outside of the U.S. We will continue to work diligently to realize the vision of a truly global Pandora, but for the time being we are required to restrict its use. We are very sad to have to do this, but there is no other alternative.

Willing consumer, looking for music, can't listen because of "licensing constraints."  One of my favorite things about Pandora is that it uses music I know I like to suggest new music I might like.  Frequent result: I like it and look for the album to purchase.  But, I'm not in America right now, so no Pandora.

Second demonstration of the week:  Back in July I attended a weekend's worth of theater productions at the Texas Shakespeare Festival.  I was ecstatic to learn that we could order DVDs of the various shows.  A friend of mine is a fan of both 1776 and Matthew Ecclestone (the actor who portrayed Richard Henry Lee in this production), but she was unable to travel.  I ordered two copies of the DVD, one for her and one for me.  This week I received the following in an email (and yes, I got the author's permission to reprint it here):

I'm not certain if that DVD is gonna come through or not--you may just get your money back, as the script for 1776 is, in fact, copyrighted and they had some issues with that.  If you ordered one of 12th Night that's a-ok of course, Shakespeare not being all that into collecting royalties nowadays.

In both these cases, behind-the-scenes legal technicalities are preventing creative works from being enjoyed. Purchasing DVDs of the Texas Shakespeare Festival's rendition of 1776 would in no way harm the authors of the script.  This is not taking away money the authors otherwise would have had.  No one is going to buy this version instead of buying the feature film.  Nor, is seeing this DVD likely to prevent anyone from going to a Broadway performance or buying a soundtrack.

Domestic and international rights are often separate and different in conditions and length of terms. They are also often licensed to different companies.  A company's limitations in the territory it services can contribute to the division of rights in different geographical areas.  The result: Pandora has obtained proper licenses to play author's works in the United States, but has not been able to do so in some foreign countries.

Negotiations are expensive, and there are a lot of different reasons negotiations for licenses can fail.  When a company needs to go through the negotiating process multiple times, with multiple different companies, it greatly increases their costs.  If a company needs every agreement in order to perform their services effectively, each negotiation is a new chance for the whole project to fall apart.

I understand that the current copyright law protects authors' rights to publicly perform and to distribute their works.  However, when these laws prevent creative  works from being enjoyed by consumers who are willing to pay, then the system isn't working properly.  What good is the incentive to create if people can't enjoy the creation?