Lessig’s Argument and His Attempt to Ease Concerns

Lessig countered that the societies do not suit the needs of ALL authors.  He strongly believes that a class of authors exist who either do not care about making money, or who do not see it as their first priority. The societies are not set up to service these creators and do not provide protocols to serve them. There are also authors who wish to pursue a different business model. Lessig used himself as an example.  He allows people to read his books free on-line, but they can also buy them at the bookstore. In this way people can sample the book on-line and be inspired to buy a hard copy. (Actually this makes sense in the case of books because most people do not like reading books on a computer screen, and it would probably cost more money for ink to print it than to buy a copy.)  Of course, copyright law already affords authors the ability to make these choices.  Creative Commons simply provides various license forms that authors can use to implement their wishes.

Lessig also tried to placate the concerns of the collection societies by laying out a way to bridge the gap between free use and commercial use. He asked the audience to imagine a license that allows you to click directly through to a collecting rights society to clear commercial rights if you want to post an author’s content. That would benefit both the creator in the sharing economy and the person who is trying to clear rights in the commercial economy. In fact, he said that for the last six months the Commons has offered a protocol “to say put your stuff out there under for example a non commercial license and then there is a click through button that could take you to a collecting society or to some other rights organization to buy commercial rights.”

Why Creative Commons Is Not a Threat

Although Lessig’s offer to add this link seems to be a sincere attempt to ease the societies’ concerns, it is a solution for a problem that does not truly exist.

When a composer or an artist wishes to become commercially successful they will generally enter into standard agreements with music publishers that either transfer the copyrights in their songs to the publisher or at least the right to administer them, that is, the right to enter into licenses and collect the money. These companies control the content people want to hear and are willing to pay for.  And they are in business to make money, not to share.

Moreover, music publishers will continue to do business with the authors’ collection societies. In the United States they are ASCAP, BMI and SESAC, which are performing rights organizations representing songs, and Sound Exchange which administers the compulsory webcasting license for masters on behalf of labels and artists.  Users such as radio and TV broadcasters are paying for the right to use their content such as Madonna, 50 Cent, Bob Dylan, Bruce Springsteen and all the other household names you can think of.  They are not very interested in kids making music in their bedrooms or Star Wars mash ups.

The Commons does not dilute the value of the blanket licenses offered by authors’ collection societies because the broadcasters could care less about most of the stuff subject to Creative Commons licenses. These authors are generally amateurs. Big users of music such as Clear Channel and CBS (traditional radio), Yahoo and AOL (webcasters), XM and Sirius (satellite) are paying a lot of money to the collection societies. The licenses are a form of insurance policy that the users will not be sued for playing any song. This is because the societies collectively represent all the commercially appealing songs.  So what if the Creative Commons gives them a free license for certain songs?  Most radio stations do not play works of members of the Commons anyway. Even if they did play them, a free license from the Commons would not clearly diminish the value of the societies’ licenses.  Even YouTube cares more about, and will pay good money for Shakira songs and not for a kid playing his new songs on guitar in his bedroom. 

So the societies will not lose money because of Creative Commons, and the world as we know it will not come to an end. The collecting societies will not be seriously threatened by the Commons because the companies sitting in between the authors and the societies will continue to control the commercially desired content. These companies are focused on making money and not on sharing. Since the vast majority of commercially viable music content will continue to pass through them, the author’s societies do not need to be unduly worried.