News

Another Spanish Decision Involving CC licenses

Mia Garlick, December 13th, 2006

As Andres from our CC Scotland team has already blogged, there has been another court case in Spain involving the use of CC licensed music. For those keeping track, there has already been a similar case decided earlier this year.

In the earlier case, the main Spanish collecting society — Sociedad General de Autores y Editores (“SGAE”) — sued Ricardo Andrés Utrera Fernández, the owner of Metropol, a disco bar located in Badajoz alleging that he had failed to pay SGAE’s license fee for the public performance of music managed by the collecting society. On February 17th, 2006, the Lower Court number six of Badajoz, a city in Extremadura, Spain, rejected the collecting society’s claims because the owner of the bar questioned the validity of the assertion by the SGAE that it represented the music played in his bar. The decision (in Spanish) is available here. An English translation of this earlier decision is available here.
In this latest case, a similar argument by a different bar owner was not successful. The case was brought in Poentevedra, Galicia. The judge ruled that the SGAE proved that music from its repertoire was performed in the bar. A copy of the decision (in Spanish) is available here. For those whose Spanish is not up to the task, we will post an English translation shortly.
One comment by the judge in this latest case is intriguing and warrants further investigation; the judge said (loosely translated) of the defendant’s attempt to prove he was playing CC-licensed music:

“…it is worth noting that the document alleged by the defendant-appellant in concept of free-music end user license represent only an informative piece of paper without any kind of signature, thus not representing any legally valuable act.”

We are working to determine what kind of documentation the defendant introduced, whether it was just a Commons Deed or the actual Legal Code, in order to properly assess the implications of this decision.

2 Responses to “Another Spanish Decision Involving CC licenses”

  1. CAG says:

    If this Cafe were playing CC-NC music while conducting commercial transactions, won’t this be a violation of the Creative Commons licenses? According to the guidelines that the lawyers at the Creative Commons sent out on commercial exploitation activities it would be. The Cafe is using the CC music to create an atmosphere for their commercial enterprise. Artists who license their music under CC-NC are clearly stating that you can use their music for non-commercial use. If one uses this music in a commercial venture, then the artist should be compensated for this use. Performing rights organizations such as SGAE is the way these artists can get paid for public performances of their music. I see this court decision as win for SGAE and the Creative Commons.

  2. Mia Garlick says:

    Thanks for your comments and glad you are taking a positive view of the decision!! I guess there are possibly two wrinkles that add a layer of complexity to the issues you raise…firstly, I think it might be possible under the current draft of the NC guidelines for a bar owner to use NC-licensed music correctly. For example, if they are an individual and not using a predominantly large amount of NC licensed music. Secondly, unfortunately at present SGAE cannot (and even if it could, probably would not) represent musicians who use CC licenses. To be a member of SGAE, an artist has to give them exclusive rights to publicly perform their music which means that no artist who is a member of SGAE can put their music online, whether under a CC license or not (although some European collecting societies have very limited schemes which allow musicians to post music to their own websites on very restricted terms and conditions). This mean that SGAE does not represent CC licensors. Indeed, collecting societies have made it clear that they view CC has a bad thing for artists generally because they view it as encouraging artists to give up their music for free with no reward and, more specifically, they consider that CC has added administrative costs to collecting societies (which apparently comes out of artists’ pockets (the example we were quoted was that it was decreasing revenues for Australian dance musicians)) by requiring the collecting societies to argue cases such as these in Spain. Hopefully, one day we can exist in a world where there can be actions that are a win for both SGAE and CC but that day is not likely to be the present.