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CBC Bans Use of Creative Commons Music On Podcasts 148

An anonymous reader writes "The producers of the popular CBC radio show Spark have revealed (see the comments) that the public broadcaster has banned programs from using Creative Commons licenced music on podcasts. The decision is apparently the result of restrictions in collective agreements the CBC has with some talent agencies. In other words, groups are actively working to block the use of Creative Commons licenced alternatives in their contractual language. It is enormously problematic to learn that our public broadcaster is blocked from using music alternatives that the creators want to make readily available. The CBC obviously isn't required to use Creative Commons licenced music, but this highlights an instance where at least one of its programs wants to use it and groups that purport to support artists' right to choose the rights associated with their work is trying to stop them from doing so."
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CBC Bans Use of Creative Commons Music On Podcasts

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  • Is this legal? (Score:5, Interesting)

    by Pharmboy (216950) on Friday October 08, 2010 @07:58PM (#33842210) Journal

    One has to ask if this is legal. Can you collectively bargain to exclude another group? In the USA, I know that it would likely not be. For instance, Company ABC can require a distributor only sell products from Company ABC in order to be a distributor, but it is flatly ILLEGAL for them to say "You can sell any product you want, as long as it is not from Company XZY". We have seen these lawsuits in my industry. You can require EXCLUSIVITY, but you can't exclude a singular company. I would have to imagine that the same would hold true for music under a single license. The key is whether or not someone will try it in court. And no, it doesn't matter what the contract says, it is illegal here. Then again, Canada is like a whole other country.

    • Re:Is this legal? (Score:5, Informative)

      by Pharmboy (216950) on Friday October 08, 2010 @08:01PM (#33842246) Journal

      To add some clarity, I am pretty sure that the basis for the lawsuits in my above statements was due to the Sherman Act, which says in part:

      "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."

      "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony [. . . ]"

      • It's too bad everyone always brings up Sherman when Clayton is such a cooler anti-trust act.

        Anyways, Clayton specifically deals with tying and exclusive deals, whereas Sherman is more general in its nature.

    • Re: (Score:3, Insightful)

      by noidentity (188756)
      It's not someone saying you can't do this, it's saying if you do this, we won't sell you our product anymore. It's a way to use the control you have over your own product to your advantage. Of course this is about IP, so it's debatable whether it can really be owned. But let's just imagine it was someone who rented pickup trucks and stated that if you ever rented from anyone else, we wouldn't rent to you anymore.
      • Re: (Score:3, Informative)

        by Ironhandx (1762146)

        Thats not a loophole though, the contract would still be thrown out for doing that. Microsoft worded things that way but still got nailed with anti trust big time, amongst other things.

        • Re: (Score:3, Insightful)

          by multisync (218450)

          Microsoft worded things that way but still got nailed with anti trust big time, amongst other things.

          Microsoft got nailed for bundling a web browser with their operating system (which was stupid, in a lot of people's opinions).

          They should have been nailed for the reasons you suggest, but were not, or the likes of Dell wouldn't be able to put "Dell recommends Windows 7" on every page of their site.

          Microsoft continues to use their dominance in the "PC" market to influence downstream vendors and prevent real c

          • Re:Is this legal? (Score:5, Informative)

            by Pharmboy (216950) on Friday October 08, 2010 @10:14PM (#33842902) Journal

            Microsoft got nailed for bundling a web browser with their operating system (which was stupid, in a lot of people's opinions).

            MS also got nailed for forcing Dell to pay for a license even on computers that didn't ship with MS software (the original source of the phrase "Microsoft Tax"). This was a separate issue than bundling IE with the OS. And if Dell is putting "We recommend Windows 7" on their website, rest assured that it isn't because they are forced to (the former lawsuit already settled that), it is because they are being paid to. If you read the recent news about how most of Dell's profits weren't from selling computers, but from "rebates" from Intel which have now ended due to ethics issues raised about Intel, then you would see that Dell is looking for any way to make money. A check on their stock price over the last 10 years would also indicate this.

            • Wasn't intel recently fined in the EU for giving kickbacks to distributors for not using or delaying their competitors chips from getting to market?

              After reading TFA I was going to post something similar to what I saw in your first post.
              Unless canada has useless anti-trust laws I can't see how this could be legal.
              If you're the biggest seller of some product it's pretty straightforward abuse of your market position to require your customers not buy from a particular competitor.

            • by IBBoard (1128019)

              Not only are they paid to, but they get (or at least used to get) paid more for the more prominent positions. About five years ago I worked at a company that sold the full range of computer equipment (laptops through to servers) and I worked on the software behind their website. Towards the end of my year there then they moved the "X recommends MS Windows XP" from below their header to in their header. It looked damned fugly and unprofessional to me, but the marketing department just cared that they were ge

    • by Sycraft-fu (314770) on Friday October 08, 2010 @08:38PM (#33842498)

      Because this isn't a single company being targeted. This is similar to union laws in non-"right to work" states. In those places, if there is a union that represents you in a given job, membership to that union in mandatory. You must be a member and pay dues so long as you work in that position, no choice. Also the unions can and do negotiate union-only contracts with companies. The companies will hire only union shops for work, no non-union contractors may bid. This is all legal.

      Now that isn't everywhere, other states don't allow that, but a number of them do.

      • by dr2chase (653338)
        Strictly speaking, it is not necessarily true that union membership is mandatory if represented, it is merely the case that such labor contracts are legal. There's nothing, except self-interest, stopping a union from negotiating a labor agreement without the mandatory membership clause. And even more strictly speaking, it is not union membership, as much as payment of union dues (that detail, from Wikipedia).

        Interestingly, if you are a fan of government non-interference in contracts, "right-to-work" re
      • Re: (Score:2, Interesting)

        by Pharmboy (216950)

        I would respectfully disagree. Unions are formed for worker protection, and you can still hire the same worker, they just are forced to be a part of a collective bargaining group: the union. This is different than excluding an entire class of musicians for reasons not related to monetary considerations. This is more like a company saying they will hire workers from one union, but not willing to hire workers from another union, even at the same pay or less. The Sherman Act actually has some teeth and is

    • The nature of this should be covered under anti-trust legislation, however the government stopped protecting consumers from dangerous monopolies on not just corporate works but on ideas and concepts. one is reminded of xkcd 129: Content Protection.

    • by arth1 (260657)

      Not that I think it's right, but I can understand the broadcorping castration's reason for doing this too: They need to have the copyrights to their own programmes to be able to defend them, and the CC license prevents that.

      The question is what else they could do -- I'm sure there's something, and I hope to see some constructive suggestions here, and not just condemnations.
      I'm also pretty certain that this wasn't due to them being fascist-nazi-commie-godfearing-godhating faggot-adulterer-homophobes in the

      • Re:Is this legal? (Score:4, Insightful)

        by sqlrob (173498) on Friday October 08, 2010 @09:07PM (#33842652)

        Huh? Considering CC is based on copyright, they still have the copyright to their own shows. It's no different than if they licensed boy band of the day and put it on the show.

    • It deals with "abuse of dominance" to exclude competition in section 79. If I were creative commons lawyers filing a complaint under this law would be a start.

      http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01165.html [competitionbureau.gc.ca]

  • Workaround? (Score:5, Interesting)

    by funkatron (912521) on Friday October 08, 2010 @08:04PM (#33842270)
    If they cant use the CC music under a CC license, cant they just ask whoever made it for an old style license? Probably only needs to be an email asking for permission to use the music and an affirmative reply.
    • Re:Workaround? (Score:5, Informative)

      by Pharmboy (216950) on Friday October 08, 2010 @08:08PM (#33842298) Journal

      This would likely not be possible simply because you don't have ASCAP or BMI handling the royalties, and they can't collect royalties on stuff that is both copyrighted as exclusive content and as CC. ASCAP and BMI have to HATE the CC, because there are no royalties to collect, so no way to screw over artists..er, collect on behalf of artists.

      Own a bar? You pay ASCAP and BMI based on number of seats. Play only CC music? They will still claim you owe and try to shut you down, usually successfully. You see, a band *might* come in and play a song that they collect for. ASCAP and BMI are pretty much like the mafia, except the mafia has a code they live by.

      • Re: (Score:3, Interesting)

        by mark-t (151149)
        So are they barred from playing public domain music as well then? What about classical?
        • Re: (Score:3, Insightful)

          by Anonymous Coward

          It's a protection racket.

          The copyright dogs don't care what you actually play, if you play *anything* they will sue.

          • Re:Workaround? (Score:4, Informative)

            by RubberDogBone (851604) on Friday October 08, 2010 @10:26PM (#33842964)

            That isn't exactly true. What they will do first is send you a contract asking you to list whatever was played and then payup accordingly. If you ignore that, then they send a bill based on what they think you owe. And if you ignore that, then they sue.

            I worked for an organization which was hit up by ASCAP. "An annual fan event like SD Comicon" would be close enough. ASCAP didn't know exactly what we played and let us tell them. There is no "does not apply" option. You are assumed to owe for something.

            There are tick boxes for live performances, bands, etc.

            We ended up paying for an electronic reproduction license for not too much money. It fit us because everything we played was actually from some electronic source. We had little live music. Just some non-ASCAP, non-BMI musicians who played their own stuff.

            After we paid once, ASCAP came sniffing around for more money. They assume they are underbilling and you're guilty of underpaying.

            • Re:Workaround? (Score:5, Insightful)

              by russotto (537200) on Friday October 08, 2010 @10:40PM (#33843004) Journal

              After we paid once, ASCAP came sniffing around for more money. They assume they are underbilling and you're guilty of underpaying.

              "And that is called paying the Dane-geld; but we've proved it again and again, that if once you have paid him the Dane-geld you never get rid of the Dane. " -- Rudyard Kipling

        • Re: (Score:2, Informative)

          by illumnatLA (820383)

          So are they barred from playing public domain music as well then? What about classical?

          Recordings of classical music are copyrighted by the group performing the piece... e.g. the L.A. Philharmonic's recorded performance of a Beethoven composition is copyrighted by the LA Phil.

          Also, many classical scores have been 'arranged' by someone. The person who did that particular arrangement of Beethoven's composition holds the copyright to the arrangement.

          So yeah... Beethoven's score is public domain, but a bunch of other stuff happens that makes classical music technically not public domain

        • Re: (Score:3, Informative)

          by Pharmboy (216950)

          They aren't barred, they are charged a royalty based upon "number of chairs", which is not the same as "seating capacity". (at least that was the standard 20 years ago). Theoretically, they have "sampled" what you play to have an idea of which artists get a tiny, tiny cut of the royalties they charge you. The majority of the money they collect goes to "expenses". It is a racket, and I have no idea who you have to blow if you are a musician and you want a decent cut of "royalties".

          In reality, most clubs p

      • I started to post in order to question your claim, googled, and found lots of news making similar unfounded claims. Every article or blog said piles of people were affected, but then they give a single example. In many cases it's the same example. I'm not questioning that it happens, but it seems more likely to be

        1) legitimate claims where BMI-licensed music was played in a place without a license, and they legitimately need to pay (according to law, not me)
        2) a number of anecdotes of intimidation withou

        • Re: (Score:3, Insightful)

          by russotto (537200)

          I'm not questioning that it happens, but it seems more likely to be

          1) legitimate claims where BMI-licensed music was played in a place without a license, and they legitimately need to pay (according to law, not me)
          2) a number of anecdotes of intimidation without any actual legal action, where either nothing happens or the owner gives up

          Businesses shut themselves down out of ignorance. BMI and ASCAP are some shady bastards who need to be beaten with pillows until bruised at the very least, but business does

  • Canaduh (Score:5, Informative)

    by diodeus (96408) on Friday October 08, 2010 @08:07PM (#33842294) Journal

    The Harper government has recently muscled in on political control over what government scientists can say publicly. The tar sands (re-branded as oil sands) is an ecological disaster. The list goes on. Don't expect sanity from this band of leaders.

  • Hm..... (Score:1, Troll)

    by s0litaire (1205168)

    ... Think "anonymous" are looking for new targets.... ^_~

  • by mark-t (151149) <marktNO@SPAMlynx.bc.ca> on Friday October 08, 2010 @08:23PM (#33842404) Journal

    According to Chris Boyce, Programming Director for CBC radio, the reason for the ban against CC music is that evidently most creative commons music is explicitly *NOT* licensed for any sort of commercial use.

    I can understand the CBC's reluctance to want to use something that is explicitly barred from being used in any commercial context.

    While not all CC music has such prohibitions, I suppose that it's apparently enough that the CBC figures it's simpler to just block it entirely than try to figure out exactly which ones are okay.

    • by v1 (525388)

      that, and I was also wondering since I don't know how their podcast system works... when you submit a podcast, or sign up to be an author, do you sign something that gives them some (possibly commercial) rights to the material you submit? In that case it would be incompatible to submit a CC licensed work?

      Lots of (shady and even not so shady) online forums are that way, little do you know when you use their service to distribute something, that you're signing away a chunk of your rights and they can do what

    • Re: (Score:1, Informative)

      by Anonymous Coward

      Creative Commons stuff that is explicitly not licensed for commercial use is also explicitly marked as Non-Commercial (i.e. CC NC [creativecommons.org]). Furthermore, by default commercial usage is permitted so all they'd have to do is look for the NC clause. It really isn't that hard to figure out.

      • by mark-t (151149)
        I agree with what you're saying, but that's still what they said... that "because of the lack of a wide range of music that has a Creative Commons license allowing for commercial use, [they] made a decision to use music from [their] production library".
    • Re: (Score:3, Insightful)

      by element-o.p. (939033)
      Seriously? I've released some of my music with a CC license. While I did elect to use the CC-NC-SA license (non-commercial, share alike), that information was clearly displayed everywhere my music was posted. I haven't conducted a random sample to see how much CC-licensed commercial-allowed music is out there, but at least IME, it was easy to tell if it was NC or not.
    • ...it's simpler to just block it entirely than try to figure out exactly which ones are okay.

      Jamendo filters by types of CC licenses. Google filters by types of CC licenses. And probably a thousand other search engines can do the same. What is so hard to "figure out exactly"?

      I suppose that it's apparently enough that the CBC figures...

      Why are you giving the CBC the benefit of the doubt? Another CBC employee has already said that "collective agreements" were to blame. Why simply assume that the new guy correcting him is telling the truth?

      After all, the CBC is already a big supporter of the "iPod" tax (a tax levy which independent artists will not be a

    • by selven (1556643)

      CC licensed, even the NC-ND ones, only give additional rights - they do not impose restrictions that aren't found with conventionally copyrighted media. So can't they use whatever means they have to play normal media (get a license from the producers, use compulsory licensing?) to play CC licensed music?

  • by dyfet (154716) on Friday October 08, 2010 @08:28PM (#33842436) Homepage

    Some see it as anti-trust and related to things like the U.S. Sherman anti-trust act. If I were a musician I would see it as a very basic restraint of trade.

  • there's this great app called the internet, perhaps you've heard?
  • by Wacky_Wookie (683151) on Friday October 08, 2010 @08:41PM (#33842522) Homepage Journal
    It seem that the CBC was *protecting* the creative commons license, not attacking it. From the Sparks comments section:

    We've been listening to the conversations today regarding a "ban" on the use of Creative Commons music in our podcasts and want to take the opportunity to clarify some of the misconceptions that are floating out there.

    The CBC has always embraced new ways of creating and sharing the content we make (in fact, shows like Spark and previously Search Engine were some of the first in Canada to use this type of music license in their programming), however, just like you, we must do so in a way which respects the limits put on that use by the music's creators.

    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.

    Everyone can rest easy-- there are no "groups" setting out to stop the use of Creative Commons music at the CBC, and we will continue to use Creative Commons licensed music, pictures etc. across a number of our non-commercial platforms.

    We hope this helps clarify things.

    Chris Boyce Programming Director. CBC Radio.

    SinceSpark is available on areas of the net that are being monetized, which can violate Creative Commons rules (non commercial) on the vast majority of music (and most forms of CC-licensed work) available for use.

    • by chebucto (992517)

      I don't know much about CC, but from what I understand there are a dozen or so licenses, some of which allow commercial use. If they're so concerned about commercial use down the line, why on earth couldn't they just pick and choose the licenses they want to support? It really can't be that difficult.

      Likewise, they could allow music with commerce-restricted CC licenses for those shows which they know will not be used for commercial purposes. This would require flagging those shows in their own library, but

    • It's still stupid - finding CC licensed music that allows commercial uses takes 2 seconds in Jamendo: just click "Music I can use for commercial purposes". And it might not be the minority, but 9300 albums isn't that small.

    • by Arker (91948) on Friday October 08, 2010 @11:35PM (#33843224) Homepage

      Unfortunately this doesnt seem very credible. There is no explanation for why several employees previously, unanimously, and clearly attributed the ban to a union contract in the first place. The rationale given is contrafactual as well, as much CC-licensed content *is* available for commercial use, and it is trivial to filter the works which do or do not allow commercial use. In light of that, the suspicion arises that this statement is merely a spur of the moment fabrication in response to the justified outrage the original explanation sparked.

      • by Zalbik (308903) on Saturday October 09, 2010 @01:19AM (#33843552)

        Where do you see "several employees previously, unanimously and clearly attributed the ban to a union contract in the first place?"

        The most damning evidence I see from the link is the single post from lilyjmills, which she later clarifies with the following:

        "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). "

        Sorry, nothing to see here....move along...

  • ...should be able to see this for what it is; disallowing a particular licensing on music can't be a good thing for consumers no matter how the criminals paint it or how stupid consumers can be.
  • Its a shame ... (Score:3, Informative)

    by PPH (736903) on Friday October 08, 2010 @09:13PM (#33842686)

    ... Canada doesn't have a Sherman Antitrust Act [wikipedia.org].

    We could loan them ours. We're not using it.

  • that it is just in it for the money and greedy.

    Copyright is theft.

  • by geekd (14774) on Friday October 08, 2010 @11:05PM (#33843132) Homepage

    You can start by supporting my band, all our stuff is CC licensed. Take a listen, rock / punk : http://theexperiments.com/ [theexperiments.com]

    Thanks, and enjoy!

  • what were you expecting when everyone is let to profit without limit and bounds ? some groups would eventually gain power and protect their own interests over the interests and freedoms of others. if you let any kind of power accumulation, it is inevitable. and, money, is power.

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