24 October 2008
Launching your music online
Musicians thinking about making their music available on the internet will be faced with many important technical, business and legal decisions. A multitude of online music services have emerged, catering to different regions, musical preferences and business models. These include iTunes, BigPond Music; ABC Digital Music Service, Jamendo; and, more specialised services such as Lost Tunes ('the home of rare music'); Musica International ('the virtual choral library'); YouLicense ('an online music licensing marketplace'); and, the recently launched UK-based Passionato ('designed for classical music lovers'). Some musicians have also harnessed the viral marketing potential of online social networking websites, such as MySpace, and file sharing, such as through LimeWire. Others musicians prefer to use their own websites.
This article focuses on just some of the common copyright issues that arise for musicians wanting to market and distribute music content online. It refers to copyright as it applies under Australian law.
Please note that this article provides general information only. If you need to know how the law applies in a particular situation, please get advice from a lawyer.
A lawyer of the Australian Copyright Council may be able to give you free legal advice about an issue not addressed in the Councils information sheets. This advice service is primarily for professional creators and arts organisations, and is also available to people working in educational institutions and libraries.
A range of licensing models operate in the music industry. You may need to consider whether you want to:
• make your music composition available online as a sample or a full recording;
• make the notated score available;
• stream recorded content for listening only;
• make content available for download so that your audience can keep and/or share copies;
• use technical controls to limit how downloaded copies can be used.
Most importantly, you will need to decide whether or not to make some or all of your content freely available, or to charge people who access it. The decisions you make about what model suits you should be based on what you ultimately aim to achieve by licensing copyright in your music content.
If you are contemplating putting music content online, it is important to remember that just because something is technically possible, it is not necessarily legal. To avoid infringing copyright or breaching a contract, make sure that you own copyright or have a licence to use the content in the first place. You will need to have the right to 'reproduce' and 'communicate' all the copyright content, which may include music, lyrics and sound recordings.
For a sound recording, you must be entitled to use the recording as well as the underlying copyright works. Most websites allow users worldwide access, so you’ll need to be sure that you have the right to license your content in other countries too.
Where musicians have created music:
• in collaboration with other people,
• under a publishing or recording contract,
• under commission by the government or as part of their employment,
someone else may own copyright in their music.
Musicians who have assigned their rights by registering their music with a collecting society will also be limited by what they can do under the terms of their agreement with the society. Performers may also have rights in sound recordings of their live performances. It is good practice to include a performer’s consent in a recording contract to cover all foreseeable uses of a recording.
Assuming that you have all the necessary rights and consents, you can manage rights in your music in various ways. You may choose to license your music on your own website under your control, or on websites controlled by others (which may offer a wide range of content by many different artists). Using your own website allows you to exercise discretion over how content is licensed and how it is technically made available. The ability to control how content is catalogued, promoted, accessed and used through someone else’s website may be limited.
Different technical controls may be applied to content on the internet. Music can be made accessible for internet users to stream or to download. Files of recordings that are streamed generally cannot be copied and shared. Technological protection measures (TPMs) may be applied to files available for download so they can only be played on certain devices or a limited number of times, for example.
Licensing music for free or for a fee?
The licence you give to people to use your music may or may not be subject to conditions such as the payment of a licence fee. Content can also be licensed for free as a loss leader, for example, to generate online and physical album sales or concert ticket sales.
The online release in 2007 of the album In Rainbows by the experimental rock band Radiohead used a mix of licensing strategies. The band took the bold step of making its song tracks available exclusively on its own website with an option for internet users to nominate the purchase price they would pay – or pay nothing at all. Distributing the song this way paid off for Radiohead in many respects, but it was not without risks. It was estimated that the song was downloaded through illegal file sharing networks 2.3 million times in less than four weeks.
If you have a publishing or recording contract or you are a member of APRA|AMCOS, you will need to check whether you have the right to license your work independently. If you decide to (and if you are able to) vary your agreement with publishers, record companies and collecting societies, you may reduce or forego future entitlements to receive royalties. For example, by deciding to 'opt out' of an assignment to APRA|AMCOS, you effectively revoke your permission for APRA|AMCOS to license the relevant work and collect royalties on your behalf.
Accordingly, the decision to make content freely available needs to be made strategically and with an awareness of all possible consequences.
Standardised licences – Creative Commons
Creative Commons (CC) licences are standardised licences used by some musicians. CC licences are promoted as a mechanism for creators to allow access to their work for free, subject to varying levels of restriction. A key benefit of CC licences is that the licence terms don’t need to be spelled out in each case – instead, users can be referred to the terms of the relevant licence on the various CC websites (such as the Australian site at www.creativecommons.org.au).
There are currently six licences offered in Australia:
• 'Attribution' (which imposes very few limits, other than that the content creator be attributed);
• 'Attribution-ShareAlike' (which allows transformation and alteration of the licensed content, provided any other content into which it is incorporated is licensed on the same conditions);
• 'Attribution-NonCommercial' (which allows other people to use your content and make 'derivative works', but only for non-commercial purposes);
• 'Attribution-NonCommercial-ShareAlike' (which combines these three licence attributes);
• 'Attribution-NoDerivs' (which is intended to prevent people incorporating your content into their material); and
• 'Attribution-NonCommercial-NoDerivs' (which combines the attributes of the three licences listed above).
Creative Commons Australia is currently considering amending the wording in the 'Attribution' and 'Attribution-NonCommercial-ShareAlike' licences.
The industrial rock band Nine Inch Nails recently made two releases using CC licences. In March 2008, the band made a surprise release of the first nine of its 36 experimental tracks from the album Ghosts I–IV under an American version of the CC Attribution-NonCommercial-ShareAlike licence. Nine Inch Nails also released a downloadable version (US$5) on its website as well as physical albums: a double CD set (US$10), a deluxe edition set (US$75), and an 'ultra-deluxe limited edition' vinyl version (US$300) that sold out in three days. The release was followed by a user-based Ghost Film Festival project on YouTube a week later. The band adopted a similar approach in April 2008, when it released the album The Slip. It subsequently extended its tour dates for North America and expanded its tour to South America.
These examples demonstrate that CC licences can work as effective distribution and self-promotion tools for musicians, provided they understand the implications. Other musicians who use CC licences include:
• singer-songwriter Jonathon Coulton, who has his own website (www.jonathancoulton.com) offering a limited number of tracks under CC licences; and
• the Queensland-based Topology ensemble, which offers its album Perpetual Motion Machine under an Australian CC licence at www.jamendo.com as well as free streamed music and sheet music downloads, without CC licences, at www.topologymusic.com.
A downside to CC licences is that they lack flexibility. Once you have used a CC licence to distribute your content, you cannot change the licence for that work. For a musician who licenses a composition for free under a CC licence, discovers its popularity and then wants to be paid for it, this is a significant problem. Another consequence that may not be immediately obvious is that the NonCommercial licences actually allow some commercial uses, such as playing music in a shopping centre or a bar, without payment. For musicians attracted to the idea of sharing their content for free for private use only, CC licences may not be the right option.
Be aware that there are now hundreds of different versions of CC licences being used throughout the world, so don’t just rely on the CC shorthand descriptions – read the licence to get an understanding of how it will work in practice. If in doubt about CC licences or other licensing options, get legal advice.
© Australian Music Centre (2008) — Permission must be obtained from the AMC if you wish to reproduce this article either online or in print.
Adam Flynn is a legal officer at The Australian Copyright Council, a non-profit organisation with five full-time and four part-time staff. The Council's services include providing information, assistance and advice in response to nearly 4,500 enquiries a year, publications, training, research and submissions on copyright policy.
The Australian Copyright Council has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.
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