Page:The digital public domain.pdf/114

Rh CC licences have been shaped initially on the grounds of a copyright system—the US Copyright Act—which has provided performers with a separate copyright on sound recordings as of 1972. This separate kind of copyright on sound recordings establishes for the benefit of performers the same rights granted to the performer under European copyright laws, except for the rights of public performance and broadcasting.

This gap between US and European copyright laws in the scope of protection of sound recordings was partially filled by the adoption of the Digital Performance Rights in Sound Recording Act of 1995, which granted rights-holders on sound recordings a right to remuneration for the (sole) digital  non-interactive communication  (i.e. webcasting) of their recordings to be administered under a complex compulsory licence scheme. The necessary inclusion of the management of rights related to copyright such as performer rights in the text of the CC licences was recently upheld by the express extension of the notion of “work” under the “unported” 3.0 version of these licenses to “performances”, “broadcasts” and “phonograms”. Whereas these items are eligible for copyright protection under US law, European copyright laws protect them through “rights related to copyright”. This suggests that, in transposing open access licences which have developed from US law into European jurisdictions (as happened within the CC initiative), the wording of these licences should be preferably adapted by extending explicitly the notion of manageable rights to the realm of what European laws define as copyright-related (or neighbouring) rights.

Two examples show how well the enforcement of open access licences works on the Internet. The first involves Magnatune’s digital platform, which stores, transmits for free and sells digital recordings belonging to a great variety of music genres. It includes music downloads embodying works in the public domain (for example, medieval, baroque and symphonic music) performed by artists and recorded by producers who are associated with the platform deviser. All legally protected content made available for free through the Magnatune platform is released under a CC licence which aims to make it clear to the website users that the