Composers, Performance Rights and Publishers

[Carolus]

As many here already know, we've had quite a few composers uploading their own works here, along with several instances of composer heirs uploading the still-copyrighted works of a parent or other ancestor. The time has now therefore come to consider the issues of performance rights for those who are uploading works of this nature here. (Note that for the time being, I am limiting this discussion to original, fully-copyrighted works - which excludes arrangements and editions made of works whose original versions are public domain). Over the past several weeks, I have started discussing this concern with officials of ASCAP and BMI, the two largest performance rights societies in the USA, which have affiliations with nearly every similar agency around the world.

Creative Commons Licenses
Although it would appear that the "non-commercial" version of the CC license would allow for the collection of royalties which are given for explicitly commercial purposes, ASCAP and other performance right societies have taken the view that even the most restrictive CC license exempts many performances as "non-commercial" which they view as "commercial" and therefore do not collect royalties for any CC-licensed works. ASCAP's position is explained in detail here. It is worth noting that section 4b. of the CC-by-nc-nd license linked above uses the phrase "in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation", which might very well exempt a large number of performances in which promoters, producers, performers and venues are all paid - while the composer is left without compensation - as long as the performance in question was not primarily intended or directed towards making money. At least in the USA, the only performances exempted from collection of performance royalties are those in which no admission is charged and none of the producers, promoters, performers and venues are compensated, those given in the course of a religious service or observance, those given in the course of actual class instruction at a non-profit educational institution, plus a few other minor exemptions. This is all spelled out in detail under Section 110 of the US law.

Performance Restricted Attribution Non-commercial No Derivatives License
For those composers and copyright owners who wish to remain affiliated with a performance rights society (or wish to affiliate with such a society), we have created the Performance Restricted Attribution Non-commercial No Derivatives 1.0 license with the purpose of reserving rights to all performances of the work except those explicitly exempted under law. This should allow the various societies to collect in the way that they normally do without disruption. One of the main objectives of my discussions to to make sure that our license passes muster with performance rights societies, and to work on ways to make it easier for performers and venues to report performances to the various societies around the world.

The major questions before us, which can be answered only by the individuals who compose new works and post them here, are as follows:

Do you, the creator and copyright owner of the works under discussion here, wish to have the option available to license the performance rights to your works via a Performing Rights Society such as ASCAP, BMI, SOCAN, PRS, GEMA, SACEM, ZAIKS, TONO, etc., or would you rather permanently release all rights of performance into what is referred to as "the commons" in the language of Creative Commons, or make performance rights available under another scheme like that employed by LoadCD? Since the CC licenses are irrevocable, once a work is released under a CC license with the actual CC notice embedded or affixed, the terms of that particular license apply to the work for the complete duration of the copyright. For example, the simple, plain-vanilla Creative Commons Attribution is basically the equivalent of declaring the work to be public domain, the only restriction being that the work is attributed correctly to its actual author. It is most important that composers and copyright owners make a fully informed decision about their works and carefully consider which course of action to take beforehand.

Performance Rights Societies typically distribute royalties collected for live and broadcast performances according to a 50-50 split between the composer and the designated publisher. In order to join a society such as ASCAP, a composer typically has to be commercially recorded or "published." Therefore, for those composers who wish to collect royalties for live and broadcast performances, do you think it would be beneficial for IMSLP to set up an actual publishing entity with separate ASCAP and BMI affiliates for the purpose of registration of new works with these agencies, to permit established publishers to sign up composers who have posted works to this site (with the caveat that at least the full scores of all works remain available here for free download), or to set up some of the more established composers with their own self-publishing entities which could be administered by the proposed publishing entity? Obviously, a share of performance royalties collected would be going to help fund IMSLP should we set up a publishing entity for this purpose. Since making your works available at IMSLP meets the definition of "publication" under most laws, this is not altogether unreasonable.

It's a very complicated issue, and more thought and consideration is needed before any action is initiated. Nevertheless, the realization that there are now more than 600 composers meeting the criteria here makes it necessary that we address the issue. We would very much like to hear from all the composers and other copyright owners about which options they would like to see available.

[KGill]

Since the CC licenses are irrevocable, once a work is released under a CC license with the actual CC notice embedded or affixed, the terms of that particular license apply to the work for the complete duration of the copyright. For example, the simple, plain-vanilla Creative Commons Attribution is basically the equivalent of declaring the work to be public domain, the only restriction being that the work is attributed correctly to its actual author. It is most important that composers and copyright owners make a fully informed decision about their works and carefully consider which course of action to take beforehand.

Are you totally sure about that? According to section 7b of cc-by 3.0:

Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

To me, that sounds like the copyright owner can still exert control over how the work is published - potentially being able to withdraw the CC license and put it under full copyright if s/he so desires, for instance. (Remember Colette Mourey?) Or is there something I'm missing (I assume there is)? If a work is licensed one way, is it actually legally possible to totally 'overwrite' that license later on? (assuming the same total copyright term, etc.)

do you think it would be beneficial for IMSLP to set up an actual publishing entity with separate ASCAP and BMI affiliates for the purpose of registration of new works with these agencies, to permit established publishers to sign up composers who have posted works to this site (with the caveat that at least the full scores of all works remain available here for free download), or to set up some of the more established composers with their own self-publishing entities which could be administered by the proposed publishing entity? Obviously, a share of performance royalties collected would be going to help fund IMSLP should we set up a publishing entity for this purpose. Since making your works available at IMSLP meets the definition of "publication" under most laws, this is not altogether unreasonable.

In theory I at least would support this - it seems like it would bring pretty much nothing but benefits to the local career composers, and indeed could serve to attract more of them to host their works here. I was surprised to read about this, though; from a practical standpoint, does IMSLP actually have people in its employ (?) that would be able to do this? I'm impressed - our scope is increasing steadily

[Carolus]

As I understand it, section 7b allows the Licensor to change licenses at will after initial release, but anything distributed under the terms of the original release remains under those terms unless the Licensee violates the terms of the (original) license, which results in automatic termination of the license. It's worded a bit confusingly, so I could very well be incorrect. I might add that the folks at ASCAP see the license as irrevocable also.

We don't have any employees right now. This could (hopefully) change in the future, however. The proposed publishing entity would most likely be set up as a non-profit. The trick is to obtain some funding once that goal is actually achieved to get things rolling. None of this will take place (if it takes place) quickly. Much input is still needed and many discussions must still take place before anything could even be attempted. (Hence my previous post)

[Philidor]

do you think it would be beneficial for IMSLP to set up an actual publishing entity..?

My gut instinct is to answer "yes."

The proposed publishing entity would most likely be set up as a non-profit.

As I understand it, IMSLP is already considered, in law, a "publisher." Each time someone uploads a score, IMSLP is "publishing" it on the internet.

Accordingly, it makes sense for IMSLP to become an actual "publisher" acceptable to performing rights societies, resulting in IMSLP's living composers receiving money to pay rent, feed their children etc when one of their scores, "published" by IMSLP, is performed.

I heard Rick Falkvinge - Swedish IT entrepreneur and founder of the Swedish Pirate Party (7.13% of the Swedish vote in the 2009 European Parliament elections, 2 seats in EU Parliament) - talking about copyright on TV a couple of nights ago. He suggested copyright should run for 5-8 years after a work is produced and claimed current copyright arrangements subvert creativity. An artist produces a popular work, then he and his children sit on their backsides raking in the cash when they should be producing more art or, in the case of the children, not being parasites like Paris Hilton.

So the current position on IMSLP, for living composers, is even more radical than that proposed by the Swedish Pirate Party. Under the CC license, composers may not receive a penny when their work is performed. That seems unfair. I'd be interested to hear an argument to the conclusion that the current IMSLP arrangement, underpinned by the CC license, is fair.

[KGill]

So the current position on IMSLP, for living composers, is even more radical than that proposed by the Swedish Pirate Party. Under the CC license, composers may not receive a penny when their work is performed. That seems unfair. I'd be interested to hear an argument to the conclusion that the current IMSLP arrangement, underpinned by the CC license, is fair.

But there isn't only the option to use CC - you can use the Performance Restricted license instead, as Carolus said above. (I should note that he has created a very nice boilerplate message for composers who license their works under the less restrictive forms of CC that informs them of the consequences of that decision and recommends them to use the PR license if they want to waive fewer of their rights to their works.)

[Peterdyson49]

I do not know if I am typical of the composers who have been adding their work to IMSLP or not, but I will happily explain my decision to add my work to the Library in the hope it triggers more discussion on this page.
The key points are stated on the IMSLP Main Page in the goal: to create a virtual library containing all public domain music, as well as music from composers who are willing to share their work with the world without charge.
I had nothing to lose by deciding to share my music in this way. Apart from money from commissions, I have not earned any income from performances or recordings. I have written pieces for friends and usually ended up paying to have the parts bound round the print shop. I suppose that is a matter of pride in producing good practical copies for the orchestra. I have found it frustrating to have produced a master set of good parts with easy page turn s to find string parts photocopied incorrectly so that all the easy page turns had disappeared from the right hand side to the middle. And then of course there were other little extras …like you want a tam-tam… we have not got one, so that will be 500 roubles (£10) for the extra player who has access to one. Or there is no money in the budget to pay the soloist. If I digress a little it is just to be honest and admit that writing music has been an exercise that has cost money rather than produce income. It is not why I do it! If I have drawn a line is that I have declined to pay to have performances. Perhaps it is useful to add that I moved to Russia 15 years ago to become a full time composer and escape normal employment!
So if I have a vested interest it has been to have my work performed publically. And that remains so.
Hence the Library offers an opportunity to share my music. Yes I could have set up a web site or used something like sibeliusmusic to try and sell my work, but I like the idea of libraries. I learnt so much from listening to the BBC’s Third Programme and borrowing scores from my local library. The habit remains except that when I go a concert now, I download the score to my laptop from IMSLP (and delete it afterwards because I can always borrow it again!)
So then there was the choice of deciding what CC License to use. I decided on Attribution, Non-commercial, No derivatives No 3. I overlooked the IMSLP performance restricted license (I think that came later in Dec 2010?). I wish to allow (and encourage) non commercial performance but believe if a commercial performance or recording were to take place I would still have the opportunity to be paid a fee (?wishful thinking?). I can understand why ASCAP have taken their position. I do not know what PRS’s view in the UK is and will make no comment on collection societies here.
I have also decided not to upload parts into the Library. I made an assumption that anything that could be performed from uploaded scores would be likely to be for domestic or non-commercial performance but if someone wanted to perform an ensemble or orchestral piece they would contact me for the parts which would allow the possibility of a negotiation to take place. At the moment there is no obvious place on a work page to place a flyer message which states “Parts available from email address) and an interested party would have to track me down from the forum.
So I now regard IMSLP as my publisher and would affirm Philidor’s positive response to Carolus’s question: “ do you think it would be beneficial for IMSLP to set up an actual publishing entity..?”
Leaving aside my own position for a moment; I would be pleased to see any developments in licensing agreements that encourages living composers, and publishers of those still covered by copyright, to be able to publish study scores on IMSLP whilst retaining control of performance and performance materials.
With my grateful thanks to those who make this ever growing Library such a wonderful resource.
Peter Dyson

[Carolus]

I need to bring this whole family of issues to the forefront again due to a recent serious change in Ebay's reporting policy for copyright violations. As many of you know already, there are a number of people on Ebay who sell CDs and DVDs of PDF music scores, many of which have been taken from this site. Obviously, we could care less about this in the case of public domain works. The problem is that the sellers do not confine themselves to public domain works. They have been copying new compositions, arrangements and editions posted here by their creators under various Creative Commons licenses. Until recently, I was able to file a complaint of copyright violation when I noticed a new work in one of these collections that was released under one of the more restrictive Creative Commons licenses and Ebay would duly notify the offending party. Ebay now limits such complaints to the copyright owner only, and requires that reports be sent in writing to their legal office. Just a reminder to all composers and copyright owners reading this post: The simple Creative Commons Attribution 3.0 license fully permits others to duplicate, distribute, perform, broadcast, record and commercially sell copies, broadcasts and recordings of your work without paying you anything whatsoever as long as they credit you as the author.

As for the whole performing rights issue, I have been in discussions with ASCAP and will soon be in one with the principals at BMI. The basic plan is to make sure that our own Performance Restricted license meets all the necessary requirements to enable ASCAP, BMI and similar Performing Rights societies elsewhere to collect performance royalties for concerts and broadcasts as they normally do. We have now also registered a formal publishing entity with ASCAP, called Edition Ottaviano Petrucci, for any composers who might wish to join and have their works accordingly registered in ASCAPs database. As many of you know, societies such as ASCAP typically pay the composer 50% of the funds collected and either a) pay the other half to the designated publisher (which can be the composer in some cases); or b) retain the remaining 50% themselves. Our plan is to pay any composers who sign up with the above publishing entity 50% of the "publisher's share" - which means composers will be receiving a total of 75% of what is payed out by the performing rights society. As we see it, having a formal publishing entity will enable us to actively report any Ebay violations and serve to protect the interests of composers who do not wish to spend time in 'rights administration' but would nevertheless like to receive royalties for eligible live and broadcast performances. The idea is to make the full panoply of choices available to composers here. There are a number of composers who fully understand that the Creative Commons Attribution 3.0 (the plain-vanilla version of the license) allows for unlimited free (as in uncompensated) commercial exploitation of their works and are perfectly fine with effectively placing them in the public domain.