CBC Stops Using Creative Commons Music Over Concerns About Commercial vs. Non-Commercial Use

from the clear-as-mud dept

A whole bunch of you have been sending in variations on the story, first highlighted by Michael Geist that the CBC (Canada's public broadcasting offering) has stopped using Creative Commons music in its podcasts. That was first revealed in the comments to a recent show, when someone asked why there were no links to Creative Commons music (something the show had apparently done before). In response, Dan Misener wrote:
There's simply no Creative Commons music used in this episode. By management decree, CBC podcasts are no longer permitted to use CC music. Instead, we're using the APM Music library (http://www.apmmusic.com/), which is copyright cleared and fully licensed by the CBC.
People quickly (and rightly) started complaining that this was ridiculous, and then Lily Mills from the CBC tried to provide more info, saying:
It turned out that our use of Creative Commons licensed music was going against some of the details in collective agreements we hold with certain talent agencies. As such, we had to discontinue our use of it.
Of course, that doesn't make much sense. What sort of agreement would forbid you from using Creative Commons music? Later on, Lily tried to clarify, and said that APM was just more cost effective:
I asked around and it sounds like APM was the most cost effective choice for production music. We're actually simply piggy-backing off the use license acquired from CBC Television (a license that can be used for the entire network).
Again, this makes no sense. The Creative Commons music is free to use, so, how could that not be cost effective?

Eventually, Chris Boyce, the Programming Director for CBC radio chimed in to explain, that it's really about problems with "commercial use" restrictions on some CC music:
The issue with our use of Creative Commons music is that a lot of our content is readily available on a multitude of platforms, some of which are deemed to be "commercial" in nature (e.g. streaming with pre-roll ads, or pay for download on iTunes) and currently the vast majority of the music available under a Creative Commons license prohibits commercial use.

In order to ensure that we continue to be in line with current Canadian copyright laws, and given the lack of a wide range of music that has a Creative Commons license allowing for commercial use, we made a decision to use music from our production library in our podcasts as this music has the proper usage rights attached.
Now, that makes a lot more sense. The early responses didn't make much sense. And this is perfect timing as we've just been having some discussions on this very topic, explaining why commercial use restrictions might not be such a good idea, and even noting that I'm often hesitant to use CC content that has a commercial use restriction because almost anything could be seen as commercial use at times. While it's unfortunate that the CBC won't be using CC content in certain areas any more, perhaps this will give more people reasons to rethink the value of commercial-use restrictions.
non-commercial
I would guess that most of the artists featured in CBC podcasts who used CC licenses were happy about that exposure. Now they'll be missing out because of their worries about commercial use.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Anonymous Coward, Oct 8th, 2010 @ 6:50pm

    The other issue demonstrated here is that when you presume your audience is stupid, you will get push-back.
    Here, the first person responded with an over simplified, yet wrong answer.
    It took how many messages and how much time for them to realize that the people asking the questions wanted REAL answers, with detail, not just some PR line.

     

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    Anonymous Coward, Oct 8th, 2010 @ 6:52pm

    The ND clause is what kills the whole concept of CC, there is no freedom where there is strings attached.

     

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    out_of_the_blue, Oct 8th, 2010 @ 6:52pm

    Well, if they've got their story straight,

    can they *not* get commercial permission for the CC music, *just* as they must be doing with the other, or is that somehow completely ruled out?

     

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      Allen (profile), Oct 8th, 2010 @ 7:07pm

      Re: Well, if they've got their story straight,

      Of course they could, but going out and negotiating with each individual rights holder for each individual work takes up a lot more resources than simply selecting a track from the pre approved library. It's a cheaper not to.

       

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        out_of_the_blue, Oct 8th, 2010 @ 7:17pm

        Re: Re: Well, if they've got their story straight,

        You're right that I didn't properly weight licensing costs, but "details in collective agreements we hold with certain talent agencies" strikes me as highly suspicious. Where would a PR person get that notion to put it out if wasn't substantive? That's why I think they eventually cooked up a more plausible story.

         

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      Anonymous Coward, Oct 10th, 2010 @ 3:20am

      Re: Well, if they've got their story straight,

      They COULD send a letter to the copyright owner asking them "Hey, can I use this in my commercial things?" and get an answer of "Yes, you can!" or "No, you cannot!"

      It's not really that damned hard to do.

      Commercial use restrictions are there to PREVENT companies from stealing an artists work and making money off it when the artist is not.

       

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        nasch (profile), Oct 11th, 2010 @ 9:07am

        Re: Re: Well, if they've got their story straight,

        It's not really that damned hard to do.

        It's a lot of time spent when you have to do it for every (or most) clip aired, because the copyright owner is a different person every time. Then if they say no, start over. Much more efficient to use something they've already paid for and requires no extra time, effort, or money. Why would they spend extra time and money to use CC music?

        Commercial use restrictions are there to PREVENT companies from stealing an artists work and making money off it when the artist is not.

        Burglary laws are to prevent stealing. Commercial use restrictions are to prevent commercial use.

         

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        Billy Wenge-Murphy, Feb 10th, 2011 @ 12:45pm

        Re: Re: Well, if they've got their story straight,

        Except that, while those statements may hold up in court as a contract, it doesn't have the certainty of a license. Negotiating rights individually defeats the purpose of Creative Commons. The point is to pass on rights to others with certainty. If it were so easy, useful, and certain to negotiate rights in the manner you describe, we wouldn't need CC in the first place

         

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        Billy Wenge-Murphy, Feb 10th, 2011 @ 12:46pm

        Re: Re: Well, if they've got their story straight,

        Except that, while those statements may hold up in court as a contract, it doesn't have the certainty of a license. Negotiating rights individually defeats the purpose of Creative Commons. The point is to pass on rights to others with certainty. If it were so easy, useful, and certain to negotiate rights in the manner you describe, we wouldn't need CC in the first place

         

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    Anonymous Coward, Oct 8th, 2010 @ 7:51pm

    I exclude -NC resources from my reference list of development and design resources for exactly this reason.

    Both in the short term and the long term, it's simply less hassle to go with the non-NC option whenever one of suitable quality is available.

     

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    Scote, Oct 8th, 2010 @ 9:09pm

    Well, this latest excuse only excuses why non-commercial CC music is prohibited. Not all CC is licensed only for non-commercial use.

     

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      Marcus Carab (profile), Oct 9th, 2010 @ 6:42am

      Re:

      No, but the vast majority of it is. The CBC wasn't on a pro-CC crusade, they were just using the library as a convenient source of music and supporting the artists as they did so. Once they realized that it wasn't as simple as they thought, and that their selection was actually extremely limited, it ceased to be convenient, so they switched back to a paid library that is.

       

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    Karl (profile), Oct 8th, 2010 @ 10:29pm

    Interesting conunundrum

    This actually occurred to me as well. While discussing PRO's with some dude at a bar, he asked me, "so, I guess you're not covered by ASCAP, then. Why do you think they pay those guys and not you?"

    Obviously his question was snarky, but he had a point: if I don't license my music with a PRO, then commercial entities wouldn't have rights to my music, and they'd have to enter into yet another licensing agreement, which most don't want to do.

    The problem is that most CC artists consider commercial CC licenses as replacing PRO's. It's not a bad goal, but it's unrealistic in even the medium term. Nearly every commercial entity that uses music already has to pay ASCAP, BMI, and SEASAC, so CC music is competing with music that is already paid for - and because PRO music is also pushed by major labels, it's more popular to boot.

    As far as I can see, there are four (and a half) options:

    1. Drop the -NC clause. Mike and Nina have both made this case. This may very well succeed, just as Android has largely succeeded against the iPhone OS. It would, however, mean a loss in revenue to already-successful musicians, at least in the short term.

    2. Develop another collective licensing agency, which deals with CC-NC music. This is kind of how BMI started. Jamendo seems to be trying to move into this role, but they're not the only one.

    2a. As a corollary to #2: Voluntarily enter into a collective license for the CBC to use -NC music without charge. I'm sure a lot of CC musicians will be up for this, but to be successful, it has to be done on a large scale.

    3. License your music under an -NC license, but also join a PRO. That's OK if quick money is what you're after, but not if you don't like what the PRO's are doing to society (and I personally don't).

    3. Accept the fact that if business entities use PROs' music, they won't use yours. That's fine if you're ideological in nature, but not so much if you actually want to earn income.

    In the immediate future, I think #2a is the way to go. Neither CC-NC nor PRO's are going away anytime soon, so the solution would have to accommodate both.

     

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      Lawrence D'Oliveiro, Oct 9th, 2010 @ 2:11am

      Re: Interesting conunundrum

      ... so CC music is competing with music that is already paid for ...

      The usual answer, when it becomes apparent that a monopoly is hindering legitimate competition, is to break the monopoly.

       

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        Karl (profile), Oct 9th, 2010 @ 10:13am

        Re: Re: Interesting conunundrum

        The usual answer, when it becomes apparent that a monopoly is hindering legitimate competition, is to break the monopoly.

        Technically, it's not a "monopoly," because the CBC can always choose not to license any particular PRO's music (ASCAP, BMI, or SEASAC). They simply wouldn't have blanket access to use that PRO's music. But since ASCAP and BMI cover 99% of the music out there, they'd be cutting themselves off from a lot of material. (SEASAC is mainly for European music.)

        Jamendo is trying to do break their "duopoly," with their Jamendo Pro program. They offer blanket licensing for CC-NC music, at much cheaper rates than any other PRO.

         

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          Lawrence D'Oliveiro, Oct 9th, 2010 @ 11:57pm

          Re: Interesting conunundrum

          Technically, it's not a "monopoly," ...

          It is if people have been forced to pay for something they weren’t intending to use.

           

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      R. Miles (profile), Oct 9th, 2010 @ 7:02pm

      Re: Interesting conunundrum

      See what's going on here, Karl? It's another attempt at balance, and it's never going to be resolved.

      Licenses are worse than copyright, in my opinion. At least copyright just says "No". Licenses say "Well, maybe, but only when it rains on a Tuesday and you're eating a peanut butter & jelly sandwich".

      I, too, will never use CC works which has a restrictive clause.

      Then again, I wouldn't use CC works at all, so it's not really a problem for me.

       

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        Karl (profile), Oct 9th, 2010 @ 9:31pm

        Re: Re: Interesting conunundrum

        See what's going on here, Karl? It's another attempt at balance, and it's never going to be resolved.

        This issue has nothing to do with "balance." It has everything to do with whether your music is represented by the particular agency that licenses music to the CBC. CC-BY music is also verboten in this situation.

        As an aside - I learn from the comments of the Spark thread, that the licensing agency is APM Music. They are an American agency, who apparently licenses music directly from multiple "work for hire" production houses. None of their music is available to the public, and they do not appear to be affiliated with ASCAP, BMI, or SEASAC (or SOCAN, for that matter).

        In other words, the license doesn't matter - if you weren't hired by APM or its affiliates, you're out of luck.

        Licenses are worse than copyright, in my opinion. At least copyright just says "No". Licenses say "Well, maybe, but only when it rains on a Tuesday and you're eating a peanut butter & jelly sandwich".

        Copyright is a license, that's the whole point. It doesn't say "no," it says "not without payment" - look at federally-mandated statutory rates (which PRO's would love to replace with higher rates), or Jamendo Pro's collective licensing fees for CC-NC works. If you pay those fees, the artists can't say "no."

        Now, the difference between copyright and -NC licenses may not be different to companies, nor to artists looking for commercial exposure, but it makes a lot of difference in terms of harm to the general public.

         

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    Josh Taylor, Oct 8th, 2010 @ 11:08pm

    Creativity has been shot

    Without Creative Commons, Creativity is dead. Say bye-bye to DeviantArt.

     

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    Jason, Oct 8th, 2010 @ 11:26pm

    CBC's Spark found some awesome CC music

    In April, CBC Spark producer Dan Misener compiled this mix of some of his favorite Creative Commons music as-heard on the program:
    http://freemusicarchive.org/curator/Creative_Commons/blog/Spark_CC_Playlist

    CBC programs like Spark were actively promoting some of the best CC music out there, and I fear that these podcasts are going to start sounding way more generic from here on out once they start using the same stock music company that feeds NFL Films etc.

     

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    Deeann D. Mathews, Oct 8th, 2010 @ 11:33pm

    Our classic human failures, on display

    "If I'm not making any money on my material, I don't want anybody else making money on it either OR, if there is money being made, I want it all or least total control over who gets it" -- that seems to be a lot of the reasoning behind the prevalence of non-commercial use requirements in a lot of areas. It is also why many musicians will die broke. Fifty percent of something is a whole lot better than 100 percent of nothing. Carefully crafted collaboration with other musicians and organizations -- yes, including commercial forces -- is what musicians need to do more of, not less. Put another way: the more people you work well and share rewards with, the more people there are with a reason to help you get your music out. Care is essential, and caution as well -- but a mindset of "How can I make my music an asset to as many decent people and organizations as possible?" would be a welcome change for many of us to adopt.

     

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      Karl (profile), Oct 8th, 2010 @ 11:51pm

      Re: Our classic human failures, on display

      "If I'm not making any money on my material, I don't want anybody else making money on it either OR, if there is money being made, I want it all or least total control over who gets it"

      That's utter nonsense. The two reasons artists release -NC music are:

      "I don't want my music to make money AT ALL, for ideological reasons;" or "If someone makes money from my labor, I deserve to get paid for it."

      Those are both very different from "if I don't make money" and "total control." The former is usually from people who are against commercial use of anything (but, perhaps ironically, would have no problem with the CBC). The latter is from people who don't want to give free money to major labels or consumer salesmen. Not that the two are mutually exclusive, of course.

      It's not about sour grapes, and it's not about "control." It's about not being exploited, and not allowing exploitation to happen in your name.

      Whether it's effective is an entirely different question. The choice is not between "fifty percent of something" vs. "100 percent of nothing." It's between "100 percent of nothing" vs. "100 percent of a different nothing." Some "nothings" are better than others.

       

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        TtfnJohn (profile), Oct 9th, 2010 @ 9:00am

        Re: Re: Our classic human failures, on display

        By way of an example of this is that the copyright license we have applied to our church publications and web site are -NC for what some would call "ideological" reasons. It's not that we're against making money from the content it's that we don't want the content used hither and yon by commercial entities who, in the past, have done so without attribution and by applying their own copyright to their very slightly remixed write up. In school this was called plagiarism.

        Newspapers are very, very good at this. Particularly the small town variety who are often desperate for content of any kind.

        So yes, it's about control.

        If I was to release music using a CC license I'd think long and hard about the -NC restriction as it stands. I'd think long and hard about it again of, say, our church choir were to release music using -NC because it could be interpreted, quite reasonably, that passing the collection plate during a service means it's being used in a commercial setting.

        This is the perfect example of the law of unintended consequences. At it's extreme it's also know as cutting off you nose to spite your face! ;-)

         

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          nasch (profile), Oct 11th, 2010 @ 9:17am

          Re: Re: Re: Our classic human failures, on display

          It's not that we're against making money from the content it's that we don't want the content used hither and yon by commercial entities who, in the past, have done so without attribution and by applying their own copyright to their very slightly remixed write up. In school this was called plagiarism.

          If they're willing to break the attribution requirement and potentially commit copyfraud, why wouldn't they just ignore the NC restriction too?

           

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        Alex Bowles, Oct 9th, 2010 @ 5:09pm

        Re: Re: Our classic human failures, on display

        The real issue is that 'making money' is completely undefined here. In the crippled view of the CC system, there's no difference between an individual using NC CC elements and charging audiences to cover all the other costs of a show (even if they're just offsetting a loss), and a GigantoCorp making said element a critical component in a bazillion dollar enterprise.

        I mean, I get the reluctance to have one's freely offered material profitably used by an entity that may also be a strong supporter of trade groups that go out of their way to shut down free culture. That makes sense. But the idea of having to deal with a complicated and possibly contentious royalty scheme - especially for something that will also be made freely available to an extent - well, that's just nuts. Most serious, independent artists won't even bother. So NC remains a ghetto.

        The far more sensible system is to look not at what's being done with the material, but who (or rather, what) is doing it. So focus no on ‘commercial’ vs. ‘non-commercial’ (obviously ambiguous). Rather, consider ‘incorporated’ vs. ‘unincorporated’ (a crystal clear distinction).

        A system that allowed individuals to make commercial use of material would allow them to develop more complex (i.e. relevant) works, doing so knowing they were free to cover their costs legally and efficiently. Realistically, if anyone is doing anything at a scale that's genuinely lucrative, they're going to need to incorporate. And *that's* the point where the new license should kick in.

        And let’s face it - if someone is charging, but still operating at a loss, and you're demanding “your piece” simply because “money is changing hands”, well, you're just being a dick. That’s twice as true if you’ve ever gone on about how “stupid and evil” the RIAA, ASCAP et. al. can be. I mean, that’s *their* whole attitude, right?

        If something small gets huge, and you set up a shell to profit from it, that's a fine place to either set up payment plans. If an element is critical, this obviously gives the original creator more leverage in the negotiations, but that's probably fair. If the contribution is incidental, the honest producer can avoid gouging by opting for a more reasonably proved alternative. It's really a case-by-case thing, and one that favors genuine contributors over marginal players behaving like patent trolls.

        The nice thing for everyone is that this approach lets producers identify and test out new commercial markets without a lot of encumbrances, then talk about appropriate compensation when all involved actually have a real sense of the value available to all, and the relative importance of any given element.

         

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          Anonymous Coward, Oct 10th, 2010 @ 9:31am

          Re: Re: Re: Our classic human failures, on display

          "they're going to need to incorporate."

          Perhaps the key here should be something like limited liability. "Incorporate" is kinda an ambiguous word, perhaps if you benefit from limited liability (and the term should be clearly defined in the license of course) or anything that somehow protects you from personal liability then you can't use this license without explicit permission.

           

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          Anonymous Coward, Oct 10th, 2010 @ 9:40am

          Re: Re: Re: Our classic human failures, on display

          "And let's face it - if someone is charging, but still operating at a loss"

          But this is problematic as well. Just because someone claims to be operating at a "loss" doesn't really mean anything. Why are they operating at a loss and who benefits from the money changing hands? A loss to whom and a loss to one person can be a gain to someone else. Operations aren't all that simple. Someone maybe operating at a loss with respect to their personal income but the money they spend benefits someone else. Are they renting a building? The owner benefits. Who is the owner and how are they related to the person spending the money. Will the owner later return the favor by doing business with the renter (at a loss maybe). Are they paying employees? They benefit. Someone is probably operating at a profit and just because the content isn't being used directly in their name and there maybe someone else operating at a loss (the person who claims to be using the content) doesn't mean that no one benefits or that the person who benefits has no influence.

           

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    Anonymous Coward, Oct 9th, 2010 @ 3:23pm

    boycotting the cbc is easy

    have you seen there technology science area its almost always full of iphone blackberry and some new game NOT science or technology

    and every friday teh economy goes for a dive and is going to collapse and on monday or tuesday its always rosey

    media is a joke now

     

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    Lachlan Hunt (profile), Oct 10th, 2010 @ 6:34am

    The CC -NC licences are an attractive nuisance. They're often used by clueless people who simply don't understand the restriction that imposes on reusing the work. While they seem appealing, they are absolutely annoying and must be strongly discouraged.

    Say you make a mashup from various CC licenced materials. If you use anything in there with an NC licence, then the work as a whole must also be licensed only for non-commercial use.

    I once got into a debate with an author of a JavaScript library I wanted to use. The author had used an NC licence, but still indicated that use by other web developers was allowed. I ended up writing to the author to clarify what the author had intended to allow, and ended up determining that the author had tried to draw some arbitrary line between commercial and non-commercial that made no sense. The author wanted to allow use by some professional web developers for some cases, but not other cases. That made it basically impossible to use, all because this author was clueless about licensing issues and had been deceived about the benefits of the NC licence.

    It gets worse if you use CC-SA, because you simply can't mixed by-sa and by-sa-nc together. For me, CC-by is the only creative commons licence I will accept.

    Having said that, I fully understand why the CBC would want to avoid CC-NC licences, and perhaps also CC-SA license. But CC-BY licences should be completely acceptable.

     

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    Anonymous Coward, Oct 10th, 2010 @ 11:39am

    "Now, that makes a lot more sense."

    Well, it's like with HP. The official reason they gave for firing and going after Mark Hurd doesn't make all that much sense. Of course there is a somewhat more reasonable explanation that explains their vendetta against him but I don't expect HP to give the real reason for going after him. While the reason from that link is still suspect (and I'm sure there is a lot more to the story that we are unfamiliar with) at least it makes a lot more sense than anything HP has given us so far.

    but of course HP's PR department just gave us some PR line because they are under the impression that the unthinking public will simply buy everything they tell us and they are answering to a public that isn't smart enough to expect things to make sense. But we are smart enough to expect things to make sense, and we do, and when you throw a bunch of cheap and poorly thought out PR nonsense at us we probably won't believe it. We want real answers, not made up PR nonsense.

     

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    Del boy, Oct 11th, 2010 @ 5:20am

    CC License

    Simplify the CC license.
    Allow for un-restrictive commercial use (Resale exempt).

    My idea on how an artist may make money is as follows:

    Release the track on iTunes or where-ever.
    Charge a modest fee for the track.
    If a TV station wants to use the track then they just buy it, then can use it to suit themselves - (Resale exempt).

    For example a TV station, Radio station or Club can legally buy the track & use it as they please, so long as they do not sell it. Simple.

    That way the artist gets more exposure & can actually get an income from their work.
    The TV, Radio or club get to buy tracks cheaply without worrying about contractual obligations on public performances. This model can extend to individual people. They buy the track then can copy it onto any medium that suits them - as often as they please.

    That way if people like the artists products they will be more willing to part with a few pennies to legally own a copy which they can do what they like with. (Apart from sell it of course).

    Simples!

     

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    Cory Doctorow, Oct 11th, 2010 @ 9:30pm

    The excuse doesn't hang together

    I just don't understand the CBC's position here -- if they have problems with potential commercial clauses then, yes, sure, not playing -NC music makes a certain amount of sense.

    But this business of not being able to tell whether CC music is or isn't NC -- to the point of having to hire extra staff! -- is just dumb. If the words "NonCommercial" or "NC" appear in a license, there is a non-commercial restriction in the license. If no such tag appears, the work is licensed for commercial use. If you have to *hire extra staff* to make this distinction, then I can't understand how the denizens of the Broadcast Centre manage to turn on the lights or wipe their bums.

    There are CBC programmes that have been using CC music that's licensed for commercial distribution (The Spark, Quirks and Quarks), so we already know that CBC's producers have the nous to manage this. The CBC's answer to this problem should be to send around a memo saying, "If you're using CC music in a show that goes to podcast, please make sure that the track's license doesn't say 'NC' in its title. If you must use a track with 'NC' in the license, please contact licensing to clear the track before you go to air."

     

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      Mike Masnick (profile), Oct 11th, 2010 @ 11:35pm

      Re: The excuse doesn't hang together

      But this business of not being able to tell whether CC music is or isn't NC -- to the point of having to hire extra staff! -- is just dumb. If the words "NonCommercial" or "NC" appear in a license, there is a non-commercial restriction in the license.

      Easy in principle, but a bit more difficult in practice. While I agree that the CBC *should* be able to use CC licenses, the way it's set up now, it involves extra work (i.e., checking to see what the license is). Perhaps the CBC should sign up with an outfit that guarantees all their music is CC commercially available (does Jamendo do that?) and then they wouldn't have to go through the trouble).

       

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    Rolfen, Jul 8th, 2012 @ 8:28am

    "Cost Effective"

    "Not cost effective" can actually make sense. It is time consuming to find CC material with the required quality, which might be reflected in additional costs. I doubt it would be the case, but I'm saying that it's a possibility.

     

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