Creative Commons and Related Rights in Sound Recordings: Are the Two Systems Compatible?

Can the will of the author cancel her copyright? The Creative Commons licensing system depends on a positive answer to this question, and indeed, in the area of copyright proper, for the most part this is the case. But the related rights of performers and phonogram producers are a different matter: in addition to their exclusive rights, performers and phonogram producers are also granted a right to equitable remuneration for the use of their phonograms in communications to the public or broadcasting by wireless means. Given that, in many EU Member States the right to equitable remuneration has been implemented in the form of a (waivable or non-waivable) compulsory licensing scheme, while, even where a voluntary license scheme is in place, the functional reality of collecting societies will limit the flexibility that this will allow right-owners, the following question arises: is the legal framework of related rights and the collective management systems in place for the exploitation of these rights compatible with the use of Creative Commons licenses? This book chapter attempts to answer this complicated question with regard to the law of the two EU Member States of the UK and the Netherlands. The issue is examined against the backdrop of the innovative flexible collective management pilot project was initiated for musical works between Buma/Stemra, the Dutch collecting society for music authors and publishers, and Creative Commons Netherlands, the Dutch branch of Creative Commons. The chapter concludes that, when contemplating the application of Creative Commons licenses to musical works in the context of the user’s obligation to pay equitable remuneration to the performer and phonogram producer for use of a phonogram in a communication to the public or broadcast, three main circumstances must be kept in mind: (a) Whether the work has been published for commercial purposes; (b) Whether the work is offered by the user on an interactive, on-demand basis; (c) What type of licensing scheme is established in the country in question for the management of the right.