Boffin + Wonk

This story was posted on one of the Creative Commons discussion lists, and it addresses a problem that at one time or another will face any organization using Creative Commons licences or any other copyleft, open or free content licence: Can we switch our works to a different licence?

[There is] a collaborative community that has been around for several years.
They had a couple of separate collections, and one was under the FAL (Free
Art License). They wanted to make everything compatible under CC-BY-SA 3.0,
but the FAL is technically *not* compatible.

Then the question was raised with a US-based attorney. His response was not
to worry so much - they're the same in all key ways, and his opinion was
that the intention of the contributors was not concerned with the minor
differences between open, copyleft licenses.

It may be counterintuitive (or, come to think of it, maybe this characterizes how people think of lawyers!), but lawyers tend to see issues like this not in terms of whether you can do something, but in terms of the risk involved in doing it. You want to get out of your lease right away without giving the required 2 months notice? You want to fire an employee even though you may not have just cause to do so? Perhaps you'd like to use a popular song as background music on a YouTube video? You might ask a lawyer whether you can do that, or how you can do it, but the lawyer is probably thinking, What is the risk in doing it? What is the likely consequence, and how likely is it?

Knowing this about a lawyer's thought process helps explain the anecdotal lawyer's response when asked whether the organization can switch from the FAL to the CC-BY-SA licence. Technically, no, they're not allowed to make that switch. But the lawyer is also thinking, how likely is it that one of the authors involved will treat this as a copyright infringement? And what will the consequences be if they do?

Of course every situation has unique considerations, and you shouldn't take this as legal advice for your own similar situation. For what it's worth, in cases like this, I tend to agree with the lawyer in the story, and for this reason: The major aspects of the licences, the issues the authors would have had in mind when they agreed to use the licence, are the same, and are specifically about open licensing.

That's what makes cases dealing with open licences different from almost any other legal field in questions like this. These licences are specifically geared toward a new way of dealing with copyright. Yes, there are differences among the licences, and some of those differences are fundamental differences that would make them very risky to switch (like switching an NC licence for a non-NC licence, or vice versa? Just don't do it!). But if there are only minor differences among the licences, then, as the operator of the community in the story, you would need to consider the risk that the sort of person who would license a work under one open licence would bring a copyright claim against you for switching to a different open licence that is the same in all but technical aspects.

So we have an author who uses open licences to distribute their work and understands the balance in copyright and the value of other people having access to that work. I suspect that such an author would be much less likely to be upset about a switch to a fundamentally identical licence than, say, a traditional commercial licensor would be if their copyright licence were switched for a different one.

Every decision like this is a risk. Just how big a risk it is depends on your particular circumstances. You might need a lawyer's help sorting that out, and you might not. What you should learn from this story isn't the general rule that licences can necessarily be switched for similar licences. Rather, it is that in some cases, with some communities of authors and users, and with sufficiently similar licences, there may be a simple solution that has a low enough risk for you.

Suppose you own a bookstore or a cafe, or maybe you're a dentist or you own a hair salon. You probably play music in your shop, cafe or clinic. Are you infringing copyright when you play that music? Are artists collecting royalties for the music you play? And if you want to make sure you're on the right side of the law, what are your options?

Canadian Copyright law

You can read the Copyright Act if you're interested -- it's not that bad a read, really. But basically what you need to understand is that the artist who wrote a song has exclusive rights to reproduce and perform that song. And the people who recorded it also have exclusive rights in the recording itself; only the recording company can reproduce the recording (which is subtly different from reproducing the song). Any time you take out a guitar and play a song, you're performing that song. And if you play a CD or plug an iPod into your sound system and play Abba's Super Trouper on repeat (something my kids love doing), you're performing the sound recording.

Now, playing the song in private is not infringement, and there is even a special exemption in Canada that allows us to make copies of sound recordings for our own private use under certain circumstances. But if you are playing songs in your shop, cafe or clinic, or anywhere else where the public can hear it, then you are infringing the copyright in that recording unless you have permission from the artist.

You can pay for permission

One way to get permission from the artist is to buy a licence from SOCAN, the collective society that represents musicians in Canada. It's not outrageously expensive either: less than 12 cents per square foot, so it will cost about $230 to buy a licence to play commercial music in your 2000 square foot operation.

Or you can get permission for free!

It turns out there are a lot of artists out there who first and foremost want their music to be heard, and they have chosen to give broad permission to anybody and everybody to use their songs and recordings. You generally won't find these artists on commercial radio, or even at most music stores. After all, many of them operate on small budgets and distribute their music online instead of paying to press discs.

And to make sure you know that you have their permission, many of these artists use a much more permissive, standard form licence that they get from Creative Commons. There are a range of Creative Commons licences, some of which are extremely permissive: if a song is under the CC-BY licence, you can copy, perform, transmit and even adapt and remix the work, as long as you give the original artist credit. Some CC licences are much more restrictive: if a song is under the CC-BY-NC-ND licence, you can copy, perform and transmit the work, but you can't change it at all (the ND means No Derivatives) and you can't use it for commercial purposes (the NC means Non Commercial).

So CC licensed music is a great source of free music to play to your customers or clients, but you have two challenges: finding CC licensed music, and making sure the music you pick is under a licence that allows commercial use.

There are a growing number of places to find CC licensed music online, but one of the best is Jamendo. It has a great selection of CC licensed music from around the world in all different styles, very well organized and searchable. To find the music under Creative Commons licences, click the Music tab on Jamendo and then the Creative Commons link in the orange bar under the tabs. On the right of the page, you can search by tags, but if you leave the tags field blank you can just check the box that says "allow commercial use", and you'll get all of the music on Jamendo that is under CC licences that allow commercial use -- or just click here to go straight to those search results! You can also limit the results by country -- here are the Canadian albums that you can play to your customers for free.

Podcasts and free music

Podcasts are a bit of a special case since as a podcaster you are not only performing recordings but also transmitting them to the public, and making them available for people to download. If you're a podcaster and you're interested in using free music or other content, check out the Podcasting Legal Guide for Canada.

Supporting artists

There are different ways to support musicians. SOCAN distributes royalties to artists from licensed performances and album sales. If you like an artist who uses CC licences and you want to support them, you can usually choose to pay for their music as well. For instance, you'll find the latest album by Brad Sucks on Jamendo, but you can also buy it at his website. Or, if you're into remixing music, you can download the source master recordings of each track, have your way with it (so to speak), and upload it to ccMixter.

Success stories?

Are you an artist who uses Creative Commons licences for your music? Do you run a cafe or shop or someplace else that plays music to your customers or clients? If you have a success story about using Free music, I'd love to hear it. Leave a comment!