Last Friday I took part in a very interesting debate about Creative Commons at the MusicWorks 2005 Convention in The Lighthouse in Glasgow. The panel was moderated by Professor Simon Frith from the University of Stirling, and was attended by David Ferguson from the British Academy of Songwriters and Composers, Florian Koempel from British Music Rights, Jonathan Mitchell Q.C. from Creative Commons Scotland, Ashlyn Eaton from Fading Ways Music UK, and yours truly.

I thought that this was probably going to be a rather hostile crowd because the Convention was advertised as an industry event, but I was surprised that in the end it was not as well attended as I thought, and those present seemed to be less hostile than expected.

The event started with a foreword from Professor Frith, and then I presented a small introduction to Creative Commons. Not much to say about my participation other than the fact that I just gave my “CC for Dummies” presentation. My main point was that Creative Commons is a recognition that the internet has made it possible for everyone to become publishers, and that copyright is now something that happens to all of us, and not just to a few.

The next speaker was Florian Koempel from BMR. Florian did not criticise CC completely, but he said that he was concerned by some legal problems. The first one was that the licences are not “transparent” enough, and that they are not clear enough in the rights involved. He also complained that it was difficult to find the actual legal code on the licence, and that it took him two hours to find it. I was baffled by this, did he miss the clearly marked “Legal Code” link at the bottom of the Commons Deed? Most of his concerns were not warranted, such as the common FUD used against open source and free software licences that “they have not been tested in court”. As far as I know, neither has Microsoft’s EULA, but I don’t see anyone complaining. The most valid point that was made was the potential problem with moral rights in civil law jurisdictions. This, in my view, was the only valid point in his presentation, but he did not really elaborate about it because he ran out of time.

Then followed David Ferguson. We knew that he was going to attack CC fiercely, he has been doing just that for a while, and his rhetoric has been vitriolic and over the top in the past. His presentation was indeed vitriolic, but I was more concerned by the fact that it was purposefully and completely designed to misrepresent Creative Commons in every way possible. The opening tirade was the same spiel about how “You and the band will never earn one penny in publishing royalties from your creation”. This is not only untrue, it is mostly the fault of collecting societies, which have not considered CC in their models. Over and over we got the same attack, stating that using a CC licence is the same as “giving away your rights”, equivalent to giving away your copyright. The presentation then took a turn into the surreal. Very cunningly, Ferguson started characterising Creative Commons as a personal attack against those who earn their living from copyright, a deliberate attack from academics and “amateurs”. There was also a sublte equating of CC and piracy, of CC and file sharing, of CC and the copyfight. The implication was that this is an anarchic movement that wants to take away your right to make a profit, and that it must be opposed. Most interestingly still, David Ferguson used the event to launch his new sharing licence for musicians and composers from his organisation, drafted by a law firm in London. I have tried to find a link to this new licence somewhere in their site, but I have not found it, I will appreciate it if anybody has a link to it.

Then followed Ashlyn Eaton from Fading Ways. Ashlyn was precisely the type of person that can prove the likes of David Ferguson wrong, as Fading Ways is doing well as a CC label. Yet Ferguson and others kept insisting that you cannot make money from CC. Sigh! Nevertheless, there was a warning that CC still has some problems for musicians, particularly some problems with collecting societies.

The final speaker was Jonathan Mitchell. It was great that he was given the last spot, as he descended upon David Ferguson and Florian Koempel and tore them into little pieces. First by pointing out that it was bad form from Koempel to only read the Generic licence and not even care about the two British licences, to his sloppiness in not researching enough about how to find the licence. Then he attacked the many different inaccuracies from David Ferguson with applomb and by providing examples from his legal practice. I just sat there and grinned.

Some of the speakers had taken too much time (Ferguson and Koempel particularly), so the actual discussion was very short. We heard from a representative from collecting societies repeating the “giving away your rights” rubbish, and we had a couple of sympathetic questions.

What still bothers me about the debate is something that I have now witnessed in many discussions about copyright. Industry representatives are always keen on making two points. Firstly, there is the argument that the public domain is not free. They argue that the public domain takes money to be maintained. The fact that this is not always true, and that where it is true the maintenance is done with public money seems to elude them. Secondly, there is the strange argument that industry people always present themselves as “making their living from copyright”, and that there is very clearly an “us and them” mentality. We are the true keepers of copyright, they tell us. We are the ones making a living, so you just shut up. David Ferguson made this argument several times. We are academics, and amateurs, they are professionals. The problem with this vision is that it is not only false, it is demonstrably false. Copyright does not exist solely as an economic right, it is awarded regardless of quality and/or commercial worth. This immediately destroys the argument that somehow only those who make money from their works should have a say on copyright. In the digital age, we are all creators, we are all publishers, copyright is no longer something that happens to other people. Whether they like it or not, my works have as much copyright as Mr. Ferguson’s compositions.

Besides, what’s wrong with being an hobbyist? An academic? Mr. Ferguson may have heard of some hobbyists. JRR Tolkien, JK Rowling, Albert Einstein. Hobbyists and academics, I’d rather be in their company.


Florian · September 29, 2005 at 2:29 am

Just saw this. Slightly surprised about this naive but spiteful attack against my person instead of a discussion on the substance of the argument. CC etiquette?For what it is worth, I was referring to my difficulties locating the England/ Wales legal code since the indeed ubiquitous US legal code raises some questions on validity, jurisdiction and applicablelaw, at least in the UK. But why getting bogged down with accuracy and sincere decency when a litigators' twist of words achieves a cheap trick against the evil music industry which makes you sit back and grin, Andras? As they say, whatever floats your boat. I am too late to join the pyramid scheme that is CC legal marketing, and rather than engaging in certainly very entertaining discussions on what you think and what I have said, I have to go home now to stick pins in my eyes.Kind regardsFlorian

Andres Guadamuz · September 29, 2005 at 4:02 am

Florian,Spiteful? It is my honest opinion that you raised some good points, but that there were some problems with the others that you touched on your presentation. I still find it amusing that you found it difficult to get the licence legal code, but that's just me. I don't see any other problem with my comment of your presentation. Can you please point out where I was being "spiteful"? Pyramid scheme? Nice one.

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