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 Artists and Audiences Strike a New Deal with Open Licensing of Music

By Robin D. Gross, Staff Attorney for Intellectual Property, Electronic Frontier Foundation (EFF)*

Rapper & Dr Robin Goss at the Freemuse Censorship conference, Denmark 2002. Photo by David Marks
Rapper & Dr Robin Goss at the Freemuse Censorship conference, Denmark 2002. Photo by David Marks
* Robin D. Gross is an intellectual property attorney with a leading cyber-liberties organization in San Francisco, the Electronic Frontier Foundation, where she specializes in intellectual property policy and digital music legal issues and serves as Director of EFF's Campaign for Audiovisual Free Expression (CAFÉ). In addition to public interest litigation, Ms. Gross frequently speaks and publishes on cyberspace legal issues such as digital copyright, and the P2P, MP3 and DeCSS legal battles.

Artists' reputations are their number one assets. Whether they earn their living by live performance fees, CD or merchandising sales, subscription or sponsorship fees, advertising, or a variety of other revenue-generating models, the more artists are known and appreciated by the public, the better positioned they are is to seek and obtain fees for their creative services.

Now imagine a world full of musicians, all creating, exchanging ideas and building upon the works of others -- a true artist's collective. Digital technology makes this possible. The revolutionary ease of copying and distribution of music over the Internet allows musicians to reach millions of people around the globe at minimal cost; at the same time, the technology truly dissolves the boundaries between who can be considered a creator and who is merely a consumer of art. Musicians would have the opportunity to draw upon and truly build from the works of others like never before. DJs could wade into an increasing pool of music to broadcast or webcast without legal restrictions. Artists would finally have a way to establish a direct connection with their audiences. All this is possible through open licensing.

The Electronic Frontier Foundation (EFF) was founded in 1990 to protect civil liberties like freedom of expression and privacy rights in the electronic world. EFF recently released the Open Audio License with terms under which artists can choose to distribute their own songs if they wish. It is EFF's hope that the license will empower the artistic community and promote freedom of expression by taking advantage of law and technology.

Original songs that artists choose to release under the Open Audio License may be copied and shared with friends or publicly performed by anyone without restrictions or royalties, so long as credit is provided to the artist. The license terms strike a new deal between artists and the public, opening up greater opportunities for musicians worldwide who want to touch the most hearts and minds with their message.

Open licensing allows artists to continue to profit from their music released under the license in many of the same traditional ways they always have, such as CD sales, live performance revenues, merchandising, etc. Artists can also release one track of a CD under the open license as a promotional tool to come to the website and buy the entire CD.

In many respects, this idea is not revolutionary. Record labels and artists regularly release free songs for the publicity value. It should come as no surprise that the more an artist is heard, the better her record and concert sales are and the more invitations to provide other musical services she receives.

One real possibility for artist revenues in an electronic age that is compatible with the open licensing is upfront fees for musical services such as composition. Artists' livelihood may shift away from one of payment for music as product to one of music as a service. The rules of the game may be changing, but artists will adapt to a home in the digital environment where greater opportunities await them.

Just as lawyers are paid fees for their services of drafting contracts, artists can be commissioned to compose and record original songs to, for example, commemorate weddings or births, which can be further distributed to family, friends and heirs throughout time. The industrial era for music distribution revolved around a model of mass production of few songs that would be sold to all. Digital technology allows creators to cultivate the value of individual customization of music, something much more personal.

In the digital world, artists who wed their income solely to fees per copies of goods sold seem to be selling themselves short. Since we are moving toward an environment where any intellectual creation can and will be copied and distributed with the click of a mouse, to tie artist revenue to fees for copies distributed also seems to be the surest way for artists to starve.

Rather than shoe-horning an old revenue model into a new technological environment, as "digital rights management" (copy-prevention systems) or other digital audio security schemes attempt, open licensing takes advantage of the properties of digital technology, like ease of copying and distributing. Artists' fans become their top promoters, by passing on the music that they like to friends along with means to connect with the artists, such as Web or email addresses. This kind of "viral marketing" or super-distribution of artists' music provides an unprecedented opportunity to independent artists around the world to pursue their passions. The challenge is now to the electronic pioneers to use these new tools to build new business models or new twists on the old ones that sustain and enhance artists' livelihood in a digital world.

For more information about open licensing, including EFF's model Open Audio License (OAL), see: www.eff.org/IP/Open_licenses

For more information about EFF's Campaign for Audiovisual Free Expression (CAFE), see: www.eff.org/cafe

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