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.