Copyright, creative commons and artistic integrity

Copyright, Creative

Commons and Artistic

Integrity

Yagan M. Kiely

Bachelor of Music (Honours)

WAAPA

13th of November 2009

Use of Thesis

This copy is the property of Edith Cowan University. However the
literary rights of the author must also be respected. If any passage from
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the Copyright Act, he or she must ﬁrst obtain the written permission of
the author to do so.

Copyright © 2010 Yagan M Kiely
This paper uses a Creative Commons Attribution—
Non-Commercial—Share-Alike 3.0 Unported
Licence.

Abstract

Copyright offers tight control over intellectual property while Creative

Commons deliberately relaxes this control; this relaxed control provides

an artist with an alternative marketing strategy as well as a secure

electronic distribution method. Copyright has been a useful tool for

controlling intellectual property since its inception in 1710, but new

developments in distribution of copyrighted materials has provided new

challenges for copyright law. Creative Commons offers an alternative

approach to copyright that embraces, rather than confronts these

challenges.

Creative Commons is an alternative to copyright that is capable of

representing all forms of art; sculpture, painting, literature, music

printing and performances. This paper will discuss the difference

between copyright and creative commons, and how they relate to music

composition and performance.1

Whilst Copyright continues to offer steadfast protection to creators,

Creative Commons’ unique marketing potential and relaxed approach to

intellectual property control provides customisable licensing formats for

creators. Though it does have limitations, Creative Commons enables the

artist to safely control their work as well as adequately promote it,

making the most of new electronic marketing and distribution strategies.

1 Because Creative Commons is relatively new (2001), and of the speciﬁcally electronically dominated
method of distribution, an overwhelming amount of source readings are found on the internet through
electronic articles, blog entries, news articles; electronically published books and studies etc.

Declaration

I certify that this thesis does not, to the best of my knowledge and belief:
(i) incorporate without acknowledgement any material previously
submitted for a degree or diploma in any institution of higher education;
(ii) contain any material previously published or written by another
person except where due reference is made in the text; or
(iii) contain any defamatory material.

I grant permission for the Library at Edith Cowan University to make
duplicate copies of my thesis as required.

Signature………………….

Date……………………….

Contents

Introduction

7

1. Copyright

8

1.1. Origins

8

1.2. Present Day

10

1.3. Incentives

11

2. Creative Commons

12

2.2. Artistic Integrity

15

2.3. Limitations of Creative Commons

17

3 Commerciallity

20

3.1. Copyright

20

3.2. Creative Commons

22

Conclusion

25

Reference List

26

Appendix A: Creative Commons in Use

32

A.1. Effective utilisation of Creative Commons

32

A.1.1. Scores

32

A.1.2. Recordings

34

A.1.3. Photographs

35

List of Figures and Tables
Figure 1 Licence Demographics 16

Figure 2 UK Music Industry Revenues 18

Table 1 UK Licence Distribution 16

Table 2 Qualitive Research Consideration
Factors 20

6

Introduction

Copyright is lauded as protecting and motivating creativity (”Copyright

purposes and sources,” 2009), but its success in doing so is open for debate.

Creative Commons – a legal addition to copyright law – is a fast growing

alternative to traditionally strict copyright law. (Just_Bri_Thanks [sic], 2006,

March 16) Defendants of copyright are accused of persecuting fans for sharing

copyrighted material. (Tenenbaum & Harvey, 2009, 2009) Creative Commons

argues that this very challenge for copyright is perhaps the best marketing

opportunity for any artist. (Fitzgerald, 2007, p.4)

Morality and economy are often assigned to copyright arguments, (Patry,

2009) but a key element of the difference between creative commons and

traditional copyright is the issue regarding the artistic integrity of the artist.

Copyright’s original purpose was to spread knowledge: it was “[a]n Act

for the Encouragement of Learning”. (Tallmo, n.d.) However, its ability to

attain this goal is debatable. It may well motivate artists to create as many

commercially viable works as possible, but does not necessarily encourage

them to grow artistically. Creative Commons - as distinct from Copyright -

does not emphasise commercial viability or quantity (as a necessity); it does,

however, allow the work to slowly market itself, emphasising quality and

artistic integrity through consistent dissemination into the public. Creative

Commons attempts to provide a justiﬁable copyright alternative for art. It has

been successful in targeting emerging artists, and is attracting more

established artists as users.

7

1. Copyright

Copyright is a form of intellectual property that pertains to any creative

works that have been notated or written down in any way. It is “…a type of

legal protection for people who produce things like writing, images, music and

films. It is a legal right to prevent others from doing certain things (such as

copying and making available online) without permission”. (“Copyright

purposes and sources” n.d.) It has automatic registration in Australia (and

elsewhere) and it “…creates incentives for people to invest their time, talent

and other resources in creating new material – particularly cultural and

educational material – which benefits society”. (An introduction to copyright in

Australia, 2007)

1.1 Origins

The Statute of Anne (1710) (Tallmo, n.d.) marked the birth of modern

copyright.2 It’s purpose was to limit the power that

book-sellers (publishers) had over creative works as

this was seen as limiting the spread of knowledge.

(Lessig, 2004, p. 86-87) Effectively, copyright was

born out of the intention to provide protection of

creative works, and to create an environment to spread

understanding.

Example 1. The Statute of Anne,
“...for the encouragement of learned men to 1710 (Tallmo, n.d.)

compose and write useful books...” (Tallmo, n.d.)

2There were methods of protecting creative works prior to the Statute of Anne, but the
Statute of Anne was the first step towards the modern copyright or the present.
8

With the Statute of Anne (1710), Copyright of works was limited to

fourteen years after publication. By 1724, with fourteen years elapsed,

publishers disputed the actual power the law had, claiming that the Statue of

Anne – a Positive Law3 – did not supersede the Common Law4 that prohibited

the use of another’s creative work without permission, but rather, supplemented

it. This, the publishers said, was the only way to protect authors financially. 5

Initially, the English Court found in favour of the publishers; with

Millar vs. Taylor (1769)6 the courts upheld common law copyright, ensuring

works would never enter the public domain. With Donaldson vs. Beckett

(1774), the House of Lords’, Lord Chancellor Charles Pratt reversed this

decision stating:

"The arguments attempted to be maintained on the side of the respondents,

were founded on patents, privileges, Star Chamber decrees, and the bye [sic]

laws of the Stationers' Company; all of them the effects of the grossest tyranny

and usurpation; the very last places in which I should have dreamt of finding

the least trace of the common law of this kingdom; and yet, by a variety of

subtle reasoning and metaphysical refinements, have they endeavoured to

squeeze out the spirit of the common law from premises in which it could not

possibly have existence.” (Tallmo, n.d.)

3 "Law actually and specifically enacted or adopted by proper authority for the government of an organized jural
society” (Black's Law Dictionary, 1979, "Positive Law")

4 “Body of law based on custom and general principles and that, embodied in case law, serves as precedent or is
applied to situations not covered by statute.” (“Common Law” n.d.)

5 There are correlations to the present day cases of Copyright infringement where the Recording Industry Association
of America’s (RIAA) notoriously aggressive behavior is defended with the claim that it is to protect the artists.

6 An english court case with the defendant and the prosecution being booksellers.

9

1.2 Present Day

The reasoning (of protecting the author from publishers) behind the

Statute of Anne was mostly abandoned in the twentieth and twenty-first

centuries. The length of copyright for a work has been greatly extended; most

developed countries have a copyright term of seventy years after the death of

the author of a creative work7. Lobbying and corporate funding have

influenced extensions of copyright on countless occasions in an attempt to keep

control over creative works for longer. ("iiNet and AFACT", U.S. Government

Printing Office & Houston, n.d., 1998, 2009)

Much like how the book-sellers of the Eighteenth century were

regarded as monopolisers, (Lessig, 2004, p.100) the Recording Industry8 of the

present day could be seen as oligopolisers. Using the same justification as the

book-sellers (the protection of the authors), the Record Industry is constantly

sacrificing the musicians, (Masnick, AVRev.com & Anderson, 2007, 2006,

2008) while punishing the consumers. (Tenenbaum & Harvey, 2009, 2009)

The Record Industry Association of America (RIAA) which represents the

Record Industry distributors of the United States of America, has lobbied to

have the royalties of artists reduced so that music distributors don’t have to pay

as much mechanical royalties to the artists, (Anderson, 2008) and has

constantly sued consumers for large amounts for rather minor intellectual

7 Previously to the copyright act of 2005, Australia adopted 50 years after death - the Statute of Anne adopted 14 years
after publication

8 The major record labels.

10

property theft (sharing a few songs online). (Tenenbaum & Harvey, 2009,

2009)

1.3 Incentives

The Australian Copyright Council (ACC), an

independent not-for-profit organisation founded in Australian Copyright Council
Logo (“Australian Copyright
Council,” 2009]
1968 to assist in copyright in Australia suggests

creators need Copyright since “The primary purpose of copyright is to provide

an incentive for people to produce new works for the benefit of society as a

whole”. (”Copyright purposes and sources,” 2009) This statement implies that

the incentive for creators is not to produce art, but to produce socially

beneficial art. This does, however, raise a question in regard to experimental

art practices (which is indeed socially beneficial). The genres of avant-garde9

or experimental art are mostly a niche market (Greenberg, 1939), with few in

the wider community following the genre, some may even be unaware of its

existence. Is the commercial ‘kitch’ (Ibid.) of artists such as Britney Spears

more or less of a benefit for society as a whole? Here, the problem of the

ACC’s statement is not whether a work of art is benefitting society, but whether

it is benefitting for the whole of society. Because different genres of art may

only benefit specific areas of society, the ACC may statement suggest that these

do not benefit society ‘as a whole’. This is also potentially damaging to artistic

expression as it is incentivising a possible artificial artistic environment where

the artist must indulge an audience with socially beneficial art.

9 “[A]rt that is iconoclastic, irreverent, antagonistic and nihilistic—for art that seeks to overthrow accepted aesthetics
and start fresh” (Burkholder, Grout, & Palisca, 2006)

11

Protecting the micro-economic ﬂow of money to the artist is what drives

current copyright legislation; (”Copyright purposes and sources,” 2009) and of

course, this is mostly positive for creators. However, although the proﬁts for

many creators is very small. (Cumberland, n.d.) Art has survived through

communism, feudalism and pre-civilisation, hence economics is not necessarily

a precondition to art. Copyright, by incentivising creativity for monetary gain

could be said to be pushing art to being primarily a business. The concern is

that making art for this purpose takes out the passion, love or honesty.

12

2. Creative Commons

Creative Commons is a not-for-profit organisation founded by

Lawrence Lessig in the United States of America in 2001. Creative

Commons licenses which relax control of copyright are additions to The Creative
Commons
Logo
traditional copyright law and can be applied to copyrightable works (“Creative
Commons,”
2009]
at the decision of the copyright holder. It has grown into a global

movement since its inception and has had a number of high-profile artists use

its licences including Nine Inch Nails, Andrew Garton, Jonathan Coulton and

Topology (Creative Commons Clinic, 2008). Creative Commons licences can

be specifically adapted to certain countries as well as ‘un-ported’ in which it

isn’t designed for a specific country10. (“Frequently Asked Questions,” n.d.)

The licenses do not replace copyright law, but rather supplements it with

additional licences. 11

A creative commons licence can be one of several mutually inclusive

licences:

• Attribution (by): Licensees may copy, distribute, display and perform the

work and make derivative works based on it only if they give the author

or licensor the credits in the manner specified by these.

10 It is designed written to work as well as possible in every country without taking into account idiosyncratic
copyright laws of different countries.

11 It does not effect Fair-Use, and if the Creative Commons license is infringed, then copyright infringement has taken
place.

13

• Non-Commercial (nc): Licensees may copy, distribute, display, and

perform the work and make derivative works based on it only for

noncommercial purposes.

• No Derivative Works (nd): Licensees may copy, distribute, display and

perform only verbatim copies of the work, not derivative works based on

it.

• Share-Alike (sa): Licensees may distribute derivative works only under a

license identical to the license that governs the original work.

(Logos: (Creative Commons, 2009))

Traditional copyright, does not allow derivative works, for the works to be

shared or for commercial use of the work12.

Any13 combination of the clauses above can create a Creative Commons

licence, For example:

• Attribution alone (by) —

(Creative Commons, 2009)

• Attribution + Non-Commercial (by-nc) —

• Attribution + No-Derivatives (by-nd) —

• Attribution + Share-Alike (by-sa) —

12 Without permission from the copyright holder.

13 Both sa and nd are mutually exclusive to each other given that they contradict each other - sa allows derivative
works, nd disallows derivative works.

14

• Attribution + Non-Commercial + No-Derivatives (by-nc-nd) —

• Attribution + Non-Commercial + Share-Alike (by-nc-sa) —

These logos are designed to give easy reference for consumers and other

creators in regard to the licence of works which bear them. (“Marking” n.d.)

In two of the main Creative Commons repositories Flickr a (photography

hosting website), and Jamendo (an online music label or netlabel), creators opt

for licences that include the Non-Commercial clause (78%) and with a bias

towards Share-Alike (as opposed to No Derivatives ) (Creative Commons

Clinic, 2008)14 (Table 1 and Figure 1). This demonstrates that most wish to

retain commercial licensing rights so as not to negatively effect possible

ﬁnancial gain generated from their works and also that they encourage or at

least wish to permit derivative works.

14 Flickr, however has a slight bias towards ND (as opposed to SA).

15

Table 1 - Licence Distribution
Flickr (photos) - Jamendo Magnatune
As of 27 July (albums) - As (albums) - As of
2009 (in of 27 July 27 July 2009
millions) 2009
1 by-nc-nd - 36+ by-nc-sa - by-nc-sa - 672
11,235
2 by-nc-sa - 33+ by-nc-nd - -
4,547
3 by-nc - ≈16 by-sa - 3,506 -
4 by - 16+ by - 732 -
5 by-sa - 9+ by-nd 529 -

(Jamendo. “Creative Commons,” 2009)

(Flickr. “Creative Commons,” 2009)

(Magnatune. “Distribution contract terms,” n.d.)

Figure 1 - Licence Demographics

by-nc-sa 42.00%

by-nc-nd 27.50%

by-sa 12.50%

by 9.00%

by-nd 1.50%

by-nc 7.50%

0% 12.50% 25.00% 37.50% 50.00%

(Jamendo. “Creative Commons,” 2009)

(Flickr. “Creative Commons,” 2009)

(Magnatune. “Distribution contract terms,” n.d.)
15

2.1 Artistic Integrity

As opposed to copyright, where the business of art is encouraged,

Creative Commons attempts to differentiate between art (e.g. expression) and

business (e.g. money). Because the creation of art is not often aimed at

15 It should be noted that this pie chart does not include data from Magnatune. As Magnatune only employs the by-nc-
sa licenses, including it would be bias against the other licenses. by-nd and by-nc are unique to Jamendo and Flickr
respectively.

16

commercial success through immediate consumption but through a ground

swell of appreciation, it is not focusing the artist’s attention on monetary gain

allowing the artist to focus on the the quality of the art. Creative Commons

offers more flexibility than Copyright through a combination of various clauses

for a total of eleven different (valid) licences. This allows creators to tailor an

approach that suites them and what they want to achieve in their art.

The proverb ‘Money Makes the World Go Round’ is surely apt in the

world today, so what is there to motivate creative works when there is no

(direct) money to be immediately made? Self expression is one motivation, but

seeing others appreciate your art is another motivation, and one of the best

ways to allow this is encouraging the consumers to easily admire and critique a

work without the pressure to purchase the work before they can appreciate the

quality of the work. Expression without an audience to share it is undesirable

to many artists. Requiring an extra-artistic payment to consume an expression

is subverting the expression itself when, with expression as the motivation,

artists would be pressured to accomplish the best art they can create. Another

motivation is how content and works come “from people just doing for

themselves what they want to do anyway” (Lessig, 2008, p. 173)

In addition to the ambiguous wording by the ACC 16, a Harvard study has

found that file sharing — the distribution of files (often media) over an

electronic medium — has not discouraged creativity, as the evidence shows

significant increases in cultural production. (Oberholzer-Gee & Koleman,

16 Regarding incentivising works that a re beneficial for society as a whole.

17

2009) Given that sharing is one of the main concepts of Creative Commons17

and that sharing increases cultural production, (Ibid.) this would suggest that

Creative Commons would benefit society ‘as a whole’. Moreover, recent trends

have indicated that artists’ (as unique from publishers etc.) revenues are

increasing (see Figure 2), regardless of the climate for others in the music

industry. (Times Online, 2009)

Figure 2 - UK Music Industry Revenues

(Houghton, 2009)

2.2 Limitations of Creative Commons

Two limitations that can be ascribed to Creative Commons include

inadequate definitions such as that of Commerciallity (Sweeney, 2006) and a

lack of revocability (ibid.) of licences. The former is being addressed by

Creative Commons in a study Defining "Noncommercial": A Study of How the

17 There are no Creative Commons license available that does not permit sharing of some sort.

18

Online Population Understands "Noncommercial Use", and the latter continues

to remain an issue.

The definition of ‘Non-Commercial’ as defined in the legal code of a

Creative Commons licence is

“‘You’18 may not exercise any of the rights granted to You in Section 317

above in any manner that is primarily intended for or directed toward

commercial advantage or private monetary compensation. The exchange of the

Work19 for other copyrighted works by means of digital file-sharing or

otherwise shall not be considered to be intended for or directed toward

commercial advantage or private monetary compensation, provided there is no

payment of any monetary compensation in connection with the exchange of

copyrighted works (“Attribution-NonCommercial 3.0 Unported” n.d.). ”

This fails to comprehensibly define commerciality for the purposes of

selling artist creations. It is unclear whether this legislations allows

educational use of Non-Commercially licensed works in a private school, or

charitable uses or in regard to advertising. Creative Commons has sought

measures to amend the issue with the aforementioned report they

commissioned (Netpop Research, LLC., & Creative Commons Corporation,

2009) which confirms a distinct confusion between creators regarding the

definition of ‘commercial’: “Qualitative research revealed variations of

understanding even among creators who identify with communities that may

appear to share certain vocabulary, contexts, norms or general values”. (Ibid.)

18 “‘You’ means an individual or entity exercising rights under this License who has not previously violated the terms
of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights
under this License despite a previous violation.” (“Attribution-NonCommercial 3.0 Unported” n.d.)

19 See (“Attribution-NonCommercial 3.0 Unported” n.d.) for additional definitions

19

Participants in the survey for the report (Ibid.) were able to articulate a list

of factors they generally agreed to be issues in regard to the definition of

commerciallity (see table 2).

Table 2 - Qualitive Research Consideration Factors (Defining
"Noncommercial": A Study of How the Online Population
Understands "Noncommercial Use)
Qualitative Research Consideration Factors

Perceived economic value of the content

The status of the user as an individual, an amateur or professional, a for-profit or
not-for-profit organization, etc.
Whether the use makes money (and if so, whether revenues are profit or recovery
of costs associated with use)
Whether the use generates promotional value for the creator or the user

Whether the use is personal or private

Whether the use is for a charitable purpose or other social or public good

Whether the use is supported by advertising or not

Whether the content is used in part or in whole

Whether the use has an impact on the market or is by a competitor

(Netpop Research, LLC., & Creative Commons Corporation, 2009, p.31)

The findings of the Defining "Noncommercial": A Study of How the Online

Population Understands "Noncommercial Use" do not adequately define

commerciality but it gives Creative Commons the figures (and questions)

necessary to make adjustments to the Non-Commercial licence and attempt to

more accurately define it.

20

If a work is licensed with a Creative Commons licence, that licence cannot

be revoked and clauses of the license cannot be removed 20. For example, if a

work is licensed as By Attribution—Non-Commercial it isn’t possible to revoke

the licence so as to revert to traditional copyright. Furthermore, if a work is

licensed with a specific restrictive clause it isn’t possible to add it to the work

later; for example, the Share-Alike clause cannot be added to a By Attribution—

Non-Commercial licensed work 21. Restrictive clauses can, however, be

removed from a licence: changing a licence from By Attribution—Non-

Commercial—Share-Alike to By Attribution—Share-Alike.

However, the ability to revoke a Creative Commons license would create

additional problems. It is not clear that derivative works can be used

commercially if the original work is changed to have a Non-Commercial

clause. It is also not clear if someone with a copy of a work labeled By

Attribution—Share-Alike can continue to use it commercially if the original is

changed by its creator to have a Non-Commercial clause. If it would result in

the derivative work being an infringement it would be difficult to enforce.

(Sweeney, 2006)

3. Commerciallity

Commerciallity, as used in this paper is defined as the ability, or intent

to make a profit. Given that the primary incentive of copyright is financial, it

would be conceivably safe to assume that copyright has an advantage over

20 Unless the work enters the public domain as per copyright law.

21 Defined here as a clause (e.g. Share-Alike) that restricts how the work can be used: No-Derivatives restricts
modifications on the work, Non-Commercial restricts commercial use etc.

21

Creative Commons in this area. Creative Commons, however, can still be seen

as a commercial intellectual property model where commercial success is not

found early on, but later in an artistic endeavour. (Lessig, 2008, p. 143-176)

3.1 Copyright

Traditional copyright’s putative assertion regarding commerciallity is that it

creates financial incentives for creativity. The ACC’s reasoning for copyright

(“…benefit of society as a whole”) directs the concept of commerciality

towards a form of art that is commercially viable, rather than creating an

intellectual property system where art (of any form) is itself placed in a viable

situation.

The motivation that copyright allegedly brings to creativity has more in

common with personal economy rather that creativity. Copyright permits

creative works to be commercially feasible, and it achieves this through

assuring the author’s right to be the sole distributor of a work22. This is a

concept that copyright has held since it’s inception in 1710 (Tallmo, n.d.).

However, modern copyright does not only restrict profiting from commercial

use of someone else’s work, it also restricts how consumers use a work, for

example sharing the work. It is this notion that restricts artistic freedom, both

for the consumer and the creator.

Requiring a consumer to pay for access to a creative work, may

encourage the artists to write creative works that will persuade the consumer to

purchase the work; to make money is the motivation to create art in traditional

22 As opposed to a 3rd party distributing the work without permission.

22

copyright. The ACC says creation of new works is balanced by “…the

objective of making material available for socially desirable purposes.”

Persuading the consumer purchase the work by accommodating the consumers

artistic taste does not induce ingenuity or individuality (of the artist) but rather

induces works that are appreciated by the largest mass population. The reason

there is any commercial benefits from traditional copyright is because

copyright incentivises commercial viability of the creative work, or artistic

integrity.

Because traditional copyright restricts free dissemination of creative works,

it is lax in regard to self promotion or auto-promotion 23. If an artist is unsigned

(for whatever reason) then promotion would be costly and time consuming.

The works themselves, once known by a few will be slower at propagating into

a wider community. This is because it relies on word of mouth, not first hand

contact. First hand contact by a prospective consumer with a creative work

provides much greater satisfaction and persuasion of the consumer.

3.2 Creative Commons

Studies have found that online piracy positively effects the profits of

less popular artists, (Pollock, 2006) and that online piracy results in more CD

Sales in general24 . (Andersen & Frenz, & Schields, 2009, 2009) Piracy and

Creative Commons have the concept of sharing in common, even though

piracy is illegal. Unestablished artists may enjoy more success because

Creative Commons ability to share a work promotes the name (and art) of the

23 Where the work promotes itself by being legally permitted to disseminate into the community

24 It can be argued that those we little or no interest for music both pirate and buy less than those with greater interest.

23

artist. Acquiring a known name or brand is what the unestablished artist will

find difficult to obtain and Creative Commons aims at amending this difficulty

through electronic distribution and online marketing abilities unique to it.

Commercial success in Creative Commons licensed works relies, in

part, one of the promotion of the artist and their creations. Particularly, the

‘digital ego’25 of the artists should be prevalent and the artists should be

actively promoting themselves and their art on as many mediums as possible26 ,

as often as possible. While this necessity to actively promote a work or an

artist is shared with traditional copyright, it is particularly important for

Creative Commons licensed works.

Noir-rock band Nine Inch Nails released the 36-track album Ghosts I-IV

(The Null Corporation, 2008) under a Creative Commons licence allowing

consumers to remix and redistribute the work. Limited editions on various

formats allowed the to group make US$1.6 million from the venture. (Creative

Commons Clinic, 2008).

While Nine Inch Nails were an already established group of artists before

they released Ghosts I-IV, most artists on the growing online music label

Magnatune were not globally well established artists upon signing to the label.

Magnatune employs a Creative Commons licence towards it’s exhaustive

previews of artists’ audio works (with various ways of implementing each

25 The prevalence of ones name and art in the digital realm i.e. search of an artist’s name in Google and the artist in
question dominates the first page of results.

26 Print, Electronic, Cinematic etc.

24

preview)27. Magnatune makes a product available by allowing consumers to

pay a price they think is fair, usually ranging between US$5 and US$18

compared to standard rate of AU$26. (Cumberland, R. n.d.) A fixed rate on

physical copies applies, (“Magnatune,” 2009) with fifty percent of any sale

going to the artist. As of January 2006, artists on Magnatune.com received on

average, between US$1500 and US$4000 a year from sales on the website.

(Creative Commons Clinic, 2008) This demonstrates that unestablished artists

can, in addition to established artists, benefit commercially from an Creative

Commons based approach to the sale of their works.

Unlike traditional copyright, which controls and restricts subsequent artists

from building upon other works28, (Lessig, 2004 p.24) Creative Commons can

(if an appropriate licence is selected by the copyright owner) encourage this

tradition of borrowing from other’s works in music in particular. Johannes

Brahms’s Variationen über ein Thema von Haydn op. 56a would be a copyright

infringement under current Australian copyright law (Joesph Haydn – whose

music is the main theme of the Brahms piece – died less than 70 years before

Brahms wrote the piece). This lack of restriction in Creative Commons

licensed works has brought copyright back in line with how composers

throughout history have borrowed themes from other composers’ works

(regardless of their copyright status).

The Verve’s Bittersweet Symphony (Hut, 1997) was considered copyright

infringement for borrowing too much of the Andrew Oldham Orchestra’s

version of the Rolling Stones’ 1965 song The Last Time. (Decca, 2008) This

27 Creative Commons samples, Creative Commons full downloads (of lower quality than purchased products) etc.

28 Derivative works, variations on a theme, modified works, arrangements, orchestrations etc.

25

borrowing of themes, styles, harmonies or colour was common practice in most

(if not all) genres of music up until the 20th century when it became difﬁcult

under stricter and more enforced copyright laws. Derivative works can be said

to provide excellent promotional value; they are free advertising for the

original work and for the original work’s creator and they show an appreciation

for the work which inevitably the audiences of derivative work may respond to

with enthusiasm for both works. As Creative Commons allows artists to permit

this ‘traditional’ musical practice, it may heighten the audience reach of the

original artist which will correspond with greater commercial success.

(Oberholzer-Gee & Koleman, 2009)

With creative works under a Creative Commons licence it would be

beneﬁcial for such works to be uploaded and spread by the artist resulting in

greater marketing coverage which, in turn, will result in a wider global market.

If a musical work, for example, (versions of, or the original) score,

commentary, photographs and recordings (where applicable) should be easily

accessible by consumers online. The artist needs to invest time into promoting

themselves and their art by presenting their items as much as possible, both

online and off. As demonstrated by the examples provided by Magnatune and

Nine Inch Nails, using Creative Commons as a double edged sword (or pen)

can accomplish both artistic honesty as well as commercial success.

Combining expression and enjoyment as motivations in making a work, with

Creative Commons’s ability to have a global audience, Creative Commons puts

the artist in a credible position both commercially and artistically.

26

Conclusion

Through traditional copyright, the artist is assured safety from

copyright infringement. With the addition of Creative Commons, the artist is

free of (and from) any possible burdens of modern copyright. Consumers can

appreciate the abstraction of art (driven by expression and enjoyment), without

having to treat it as a commodity and artists who employ Creative Commons

with respect to their own work can still proﬁt from their works. Supplementing

this, Creative Commons provides an adequate commercial model with little

applied knowledge of the legal system. Questions must be asked as to whether

Creative Commons can be effectively applied to and written into actual

Copyright legislature; there is clearly an demographic for it’s legal inclusion.

27

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30

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31

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32

Appendix A: Creative Commons in Use

1. Effective utilisation of Creative Commons
The advantages (and disadvantages) of Creative Commons for music

creators are not effective without knowing how to select and apply the

range of licences available. Online promotion and publication is only

valid if the appropriate websites and services are targeted. Publication

can be online or in hard copy with the primary aim of having the product

consumed in whichever method is appropriate.

For a complete publication of a musical work there are a number of

mechanisms involved. The most common being scores, recordings and

phptographs. Each have their own methods of publication and each

method can work independently of each other to promote the musical

work they represent (or are).

1.1. Scores

Scores play an important role in promotions and consumption,

especially in the classical music traditions where scores are used the

most. Making scores openly available to performers also means there are

increased opportunities for the scores performance.

33

The Petrucci Music Library (http://www.petruccimusiclibrary.org/) is

a music score

repository of Public

D o m a i n29 and

Creative Commons

works. Previously

known as The
Example Petrucci Music Library composer page (“Kiely, Yagan M,” n.d.)
where work pages (containing scores) are hosted.
International Music

Score Library Project, The Petrucci Music Library is a repository that

composer’s can exploit to publish works online. In addition to the

aforementioned Creative Commons clauses, the founder of The Petrucci

Music Library, Edward Guo (Canada, 2006), has created a Performance

Restricted Creative Commons clause which disallows performance of the

work without permission from the copyright holder (“Creative Commons

and Performance Restricted licenses,” n.d.). The website won a Merlot

award for ‘outstanding online resources’ (“MERLOT Award Winners -

2009” 2009) in 2009 and was named in PC Magazine’s top 100

‘undiscovered’ websites of 2009 (“The Top 100 Web Sites of 2009”

2009).

The International Music Sore Library Project was taken ofﬂine in

2007 due to a Cease and Desist letter (order or request to halt an activity,

or else face legal action) from Universal Edition Vienna a music score

publisher, but the website returned in 2008 with the new name The

Petrucci Music Library. (Geist, 2007)

29 Works that are no longer in copyright

34

The website provides services for uploading and hosting of

Adobe’a™Portable Document Format (PDF) scores. These scores can be

downloaded by consumers or educators and used as per the licence the

copyright owner puts on the score.

1.2. Recordings

Recordings are possibly the primary consumable method of sharing

and promoting any musician’s work and there are many online services

for publication.

Internet Archive (http://www.archive.org/) is an online hosting service

of Public Domain and Creative Commons works of almost any kind.

Uploading recordings is simple and the service provides a streamable

copy of the recording in addition to downloadable copies in different

playback qualities (such as in *.mp3 of *.ogg format30). These can be

used in other websites or linked to directly.

Jamendo (http://www.jamendo.com/) is an online music hosting

service dedicated to musicians and for their hosting of their own works.

The Jamendo community is quickly and vastly growing. The service it

provides includes download (through BitTorrent) and streaming, as well

as album art, any text and artist biography or description. It does not offer

a service for hosting scores, but does, unlike the Internet Archive, offer a

social network.

30 *.mp3 is a proprietary music ﬁle format; *.ogg, a open source music ﬁle format.

35

Jamendo offers a

donation service

where fans can

donate to music

creators of which the

artist gets one

hundred percent of Example Jamendo’s artist page (“yagankiely” n.d.)

the donation. Another method that Jamendo employs for monetary gain

of artists is a licensing service where an artist’s music is licensed to third

parties for a fee. Fifty percent of the fee is shared with the artist. In the

ﬁrst 22 months since its inception, Jamendo has had 1,454 donations with

an average of $US14.55 each donation. (Creative Commons Clinic,

2008)

Magnitune (http://www.magnatune.com/) is a fully ﬂedged net-lable

and as such, there is no guarantee that an artist will be signed to the

label31 . A prerequisite for the application of becoming a signed artist to

Magnatune is the submission of over 40 minutes of music, which is

more or less the standard length of an album (“Submit your music to

Magnatune” n.d.). If an artist has a satisfactory recording of a work,

applying for Magnatune may be in the artist’s interest.

31 Only 5% of works submitted to Magnatune is accepted (http://magnatune.com/info/submit). As opposed to
Jamendo where there is no restrictions in place (anyone can upload their works).

36

2.3. Photographs

Many musical productions or publications will include photography of

some sort such as album art or promotional materials.

Flickr (http://www.flickr.com/) is a Yahoo Inc. based photo hosting

service and one of the

most popular of it’s

kind. It caters for

Creative Commons

licensed photos with

over one hundred
Example Flickr’s photography set page (Flickr) what does it show?

millions Creative

Commons photos. The service is mostly free (a professional account

includes additional features), and photos uploaded can easily be

embedded elsewhere if required 32. Related photographs and images can

be also grouped together into sets.

Picasa (http://www.picasaweb.com/) is a Google Inc. based photo

hosting service and also caters for Creative Commons licensed photos.

The service is not as popular as Flickr, possibly because it is a newer

service (“Site info for flickr.com” & "Site info for picasaweb.com", n.d.,

n.d.) and as such may not have as much web traffic, but the service is

more than adequate and offers an intuitive alternative to Flickr.

32 For example, to further disseminate an artist’s work globally.

37

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