Collecting Society Projects/Australia - Revision history

Akozak: Undo revision 37181 by Akozak (Talk)

2010-07-12T19:30:11Z

Undo revision 37181 by Akozak (Talk)

Akozak at 19:29, 12 July 2010

2010-07-12T19:29:52Z

JesseWeinstein: moved Australia to Collecting Society Projects/Australia: clarify scope of page

2009-06-16T20:17:26Z

moved Australia to Collecting Society Projects/Australia: clarify scope of page

Jessica coates: /* Experiences (so far) */

2009-06-16T03:48:39Z

‎Experiences (so far)

Jessica coates at 03:38, 16 June 2009

2009-06-16T03:38:42Z

Jessica coates: /* Definition of (Non)Commercial */

2009-06-16T03:20:43Z

‎Definition of (Non)Commercial

Jessica coates: /* Definition (Non)Commercial */

2009-06-16T03:09:26Z

‎Definition (Non)Commercial

Jessica coates: /* Objectives */

2009-06-16T02:20:20Z

‎Objectives

Jessica coates: /* How does it work */

2009-06-16T00:37:05Z

‎How does it work

Jessica coates: /* How does it work */

2009-06-16T00:36:32Z

‎How does it work

← Older revision		Revision as of 19:30, 12 July 2010
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	'''Go back to [[Collecting_Society_Projects\|collecting society projects overview page]]'''		'''Go back to [[Collecting_Society_Projects\|collecting society projects overview page]]'''
−	~~{{Jurisdiction~~
−	~~\|country code=au~~
−	}}

← Older revision		Revision as of 19:29, 12 July 2010
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	'''Go back to [[Collecting_Society_Projects\|collecting society projects overview page]]'''		'''Go back to [[Collecting_Society_Projects\|collecting society projects overview page]]'''
		+	{{Jurisdiction
		+	\|country code=au
		+	}}

← Older revision		Revision as of 03:48, 16 June 2009
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	APRA and Creative Commons Australia have a good working relationship, and are negotiating to address these issues. APRA have indicated informally that they are comfortable with their members using CC non-commercial licences, and have expressed good will towards providing a formal mechanism to allow them to legally do so.		APRA and Creative Commons Australia have a good working relationship, and are negotiating to address these issues. APRA have indicated informally that they are comfortable with their members using CC non-commercial licences, and have expressed good will towards providing a formal mechanism to allow them to legally do so.
		+
		+	Separately from these negotiations, there has been a concerted [http://www.optapra.net/ campaign] by a group of APRA users to increase the flexibility of the current APRA licensing scheme, headed by musician and former-APRA member Jamison Young. See links below.

	==Additional Information==		==Additional Information==

@@ Line 24: / Line 24: @@
 '''Licence Back and Opt Out Mechanisms'''
-APRA has historically had two mechanisms that allowed its members to regain control of their works — "Opt Out" and "Licence Back". However, limitations in the terms of these mechanisms meant that they were insufficient to enable musicians to (legally) use CC licences. The Opt Out mechanism allows an APRA member to permanently regain their rights over their work for a specific category of use (eg performing the work in public or radio broadcasting) - but does not apply to communications of the work, or allow licensing for purposes outside the specified category. Under the Licence Back, the member obtains permission from APRA to use their work for a specific work one-off purpose (such as playing it at a charity gig) - but can't license the material to others and needs a separate permission every time they intend to use the work.
+APRA has historically had two mechanisms that allowed its members to regain control of their works — "Opt Out" and "Licence Back". However, limitations in the terms of these mechanisms meant that they were insufficient to enable musicians to (legally) use CC licences. The Opt Out mechanism allows an APRA member to permanently regain their rights over their work for a specific category of use (eg performing the work in public or radio broadcasting) - but does not apply to communications of the work, or allow licensing for purposes outside the specified category. Under the Licence Back, the member obtains permission from APRA to use their song for a specific one-off purpose (such as playing it at a charity gig) - but can't license the material to others and needs a separate permission every time they intend to use the work. Therefore, neither mechanism permits licensing under the general, transferable terms of the CC licences.
 '''Non-commercial Licence Back'''
@@ Line 36: / Line 36: @@
 The scope of what is considered noncommercial under the APRA Noncommercial Licence Back is very limited, and is arguably out of step with the expectations both of APRA members who choose to apply the mechanism and of ordinary society. This definition was drafted independently by APRA, without consideration of feedback from Creative Commons.
-Article 17(i) of the APRA consitution, which defines noncommercial for the purpose of the new Licence Back, reads:
+Article 17(i) of the APRA constitution, which defines noncommercial for the purpose of the new Licence Back, reads:
 :In this Article, “Non-Commercial Purposes” means:
@@ Line 44: / Line 44: @@
 ::ii. any sub-licensee is a not for profit entity whose activities are not directed towards commercial advantage and that does not receive public or institutional funding.
-As one would expect, this definition bans direct sale or payment of fees for use of music, as well as indirect payments, such as accruing revenue from advertisements. The provision also limits the licensing of the material exclusively to not-for-profit entities, and so does not permit the uploading of music to popular content aggregation services such as MySpace, YouTube, Last.fm. Again, such limitations are not unexpected - however, it does limit the utility of the provision, as it is through such sites that most members will be seeking to distribute and promote their music. Presumably APRA either has or intends to enter into separate agreements with such sites to permit member use of the site subject to payment of royalties - but without formal notification of these agreements, APRA members are left in a legal grey area.
+As one would expect, this definition bans direct sale or payment of fees for use of music, as well as indirect payments, such as accruing revenue from advertisements. The provision also limits the licensing of the material exclusively to not-for-profit entities, and so does not permit the uploading of music to popular content aggregation services such as MySpace, YouTube, Last.fm and Jamendo. Again, such limitations are not unexpected - however, it does limit the utility of the provision, as it is through such sites that most members will be seeking to distribute and promote their music. Presumably APRA either has or intends to enter into separate agreements with such sites to permit member use of their serivces subject to payment of royalties - but without formal notification of these agreements, APRA members are left in a legal grey area.
-However, APRA's language goes far beyond these expected limits, resulting in a definition of non-commercial which is far more restrictive than ordinary useage. The two areas of particular concern with the definition are:
+However, APRA's restrictive language goes far beyond these expected limits, resulting in a definition of non-commercial which is far more narrow than ordinary useage. The two areas of particular concern with the definition are:
-* The unqualified use of the term "consideration" - this has the potential to import a significant amount of jurisprudence on the meaning of this term from Australian contract law. Under Australian law, consideration can be anything from the transfer of money to a mere peppercorn or even a promise - so any transaction in which the user promises to deal with the material only in a certain way (eg under a Creative Commons licence) would potentially be excluded. APRA's decision to include "financial" after the word "consideration", rather than before it (ie to read 'financial consideration or incentive') seems to indicate that they intended for such non-financial exchanges to be prohibited.
+* The unqualified use of the term "consideration" - this has the potential to import a significant amount of jurisprudence on the meaning of this term from Australian contract law. Under Australian law, consideration can be anything from the transfer of money to a mere peppercorn or even a promise - so any transaction in which the user promises to deal with the material only in a certain way (eg under a Creative Commons licence) would potentially be excluded. APRA's decision to include "financial" after the word "consideration", rather than before it (ie to read :financial consideration or incentive") seems to indicate that they intended for such non-financial exchanges to be prohibited.
 * the requirement that the not-for-profit entity also must not receive "public or institutional funding" - this is presumably intended to capture government funding and funding from universities and other quasi-governmental bodies, ensuring organisations such as public broadcasters and government departments are still required to pay royalties to APRA. However, it also excludes a number of organisations that would commonly be considered non-commercial, such as primary and secondary schools, and potentially groups that receive funding from larger "institutionalised" charitable bodies, such as the Gates Foundation. As the majority of, if not all, non-profit organisations in Australia rely solely or partly on funding from a State or Territory government and/or the Commonwealth government it is difficult to imagine a single body that would fit within this strict test.
@@ Line 54: / Line 54: @@
 ==Experiences (so far)==
 ==Additional Information==
 '''Go back to [[Collecting_Society_Projects|collecting society projects overview page]]'''

@@ Line 33: / Line 33: @@
 ==Definition of (Non)Commercial==
-Article 17(i), which defines noncommercial purposes in relation to Article 17(h), reads:
+The scope of what is considered noncommercial under the APRA Noncommercial Licence Back is very limited, and is arguably out of step with the expectations both of APRA members who choose to apply the mechanism and of ordinary society. This definition was drafted independently by APRA, without consideration of feedback from Creative Commons.
-"In this Article, “Non-Commercial Purposes” means:
+Article 17(i) of the APRA consitution, which defines noncommercial for the purpose of the new Licence Back, reads:
-As one would expect, this definition bans direct sale of or payment of fees for use of music, as well as indirect payments, such as accruing revenue from advertisements. The provision also limits the licensing of the material exclusively to not-for-profit entities, and so does not permit the uploading of music to popular content aggregation and exhibition websites such as MySpace, YouTube, Last.fm. Again, such limitations are not unexpected - however, it does limit the utility of the provision, as it is though such sites that most members will be seeking to distribute and promote their music. Presumably APRA either has or intends to enter into separate agreements with such sites to permit member use of the site subject to the adequate payment of royalties - but without formal notification of these agreements, members are still left in a legal grey area.
+:In this Article, “Non-Commercial Purposes” means:
 However, APRA's language goes far beyond these expected limits, resulting in a definition of non-commercial which is far more restrictive than ordinary useage. The two areas of particular concern with the definition are:
-* The unqualified use of the term "consideration" - this has the potential to import a significant amount of jurisprudence on the meaning of this term from Australian contract law. Under Australian law, consideration can be anything from the transfer of money to a mere peppercorn or even a promise - so any transaction in which the user promises to deal with the material only in a certain way (eg under a Creative Commons licence) would potentially be excluded. APRA's decision to include "financial" after the word "consideration", rather than before it (ie to read 'financial consideration or incentive') seems to indicate that they did intend for such non-financial exchanges to be prohibited.
+* The unqualified use of the term "consideration" - this has the potential to import a significant amount of jurisprudence on the meaning of this term from Australian contract law. Under Australian law, consideration can be anything from the transfer of money to a mere peppercorn or even a promise - so any transaction in which the user promises to deal with the material only in a certain way (eg under a Creative Commons licence) would potentially be excluded. APRA's decision to include "financial" after the word "consideration", rather than before it (ie to read 'financial consideration or incentive') seems to indicate that they intended for such non-financial exchanges to be prohibited.
-* the requirement that the not-for-profit entity also must not receive "public or institutional funding" - this is presumably intended to capture government funding and funding from universities and other quasi-governmental bodies, ensuring organisations such as public broadcasters and government departments are excluded. However, it also excludes a number of organisations that would commonly be considered non-commercial, including all educational institutions (including primary and secondary schools), and potentially groups receiving funding from the larger charitable organisations, such as the Gates Foundation. As the majority of, if not all, non-profit organisations in Australia rely solely or partly on funding from a State or Territory government or the Commonwealth government (or indeed a number of each) it is difficult to imagine a single body that would fit within this strict test.
+* the requirement that the not-for-profit entity also must not receive "public or institutional funding" - this is presumably intended to capture government funding and funding from universities and other quasi-governmental bodies, ensuring organisations such as public broadcasters and government departments are still required to pay royalties to APRA. However, it also excludes a number of organisations that would commonly be considered non-commercial, such as primary and secondary schools, and potentially groups that receive funding from larger "institutionalised" charitable bodies, such as the Gates Foundation. As the majority of, if not all, non-profit organisations in Australia rely solely or partly on funding from a State or Territory government and/or the Commonwealth government it is difficult to imagine a single body that would fit within this strict test.
 As a result, it seems likely that the APRA definition of non-commercial excludes all uses except those by private individuals (presuming they are considered "not for profit entities").

← Older revision	Revision as of 20:17, 16 June 2009
(No difference)

@@ Line 32: / Line 32: @@
 However, because it only applies to online communications (ie doesn't include other uses such as broadcasting or performance) and then only in certain circumstances, the new Noncommercial Licence Back option still has limited application. It doesn't allow Creative Commons licensing (which applies to communication, broadcast and performance) and won't allow musicians to upload their material to most popular Web 2.0 platforms.
-==Definition (Non)Commercial==
+==Definition of (Non)Commercial==
 ==Experiences (so far)==

@@ Line 9: / Line 9: @@
 ==Objectives==
+# To provide a legal means for APRA members to use Creative Commons licences
 ==How does it work==

@@ Line 14: / Line 14: @@
 Currently, Australian and New Zealand musicians do not have the ability to legally license their works under a Creative Commons licence.
-'''Problems with the current system'''
+'''Problems with the Current System'''
 APRA, like many collecting societies around the world, takes a full assignment of the member’s performance and communication rights (eg broadcasting or posting online) of all past, present and future works. Assigning the rights to the collecting society allows more efficient administration and enforcement of the royalty collection process. However, it also causes compatibility issues for collecting society members who wish to issue their music under direct licences, such as the Creative Commons licences.