Following on from the recent decision in a Dutch Court, Creative Commons licenses have also been implicated in a decision in Spain. The issue in this case was not whether the CC license was enforceable, but instead whether the major collecting society in Spain could collect royalties from a bar that played CC-licensed music.

Unfortunately, as we explain on our site, because most collecting societies, especially in Europe (but not in the US), take an assignment of rights from the artist, artists who are members of these collecting societies are not free to CC-license their works. And so far, collecting societies have been reluctant to explore how they could enable those of their members, who are interested in CC-licensing, to do so.

Consequently, it seemed a little odd when in the Fall of 2005, 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 in Badajoz alleging that he had failed to pay SGAE’s license fee of 4.816,74 € for the period from November 2002 to August 2005 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 proved that the music he was using was not managed by the society. The music performed in the bar was licensed under CC licenses that allows that public display since the authors have already granted those rights. Specifically, the judge said:

“The author possesses some moral and economic rights on his creation. And the owner of these rights, he can manage them as he considers appropriate, being able to yield the free use, or hand it over partially. “Creative Commons” licenses are different classes of authorizations that the holder of his work gives for a more or less free or no cost use of it. They exist as … different classes of licenses of this type … they allow third parties to be able to use music freely and without cost with greater or minor extension; and in some of these licenses, specific uses require the payment of royalties. The defendant proves that he makes use of music that is handled by their authors through these Creative Commons licenses.“

The full text of the decision (in Spanish) is available here.

This case sets a new precedent because previously, every time that the SGAE claimed a license fee from a bar, a restaurant or a shop for public performance of music, the courts have ruled in their favor on the basis that the collecting society represents practically all the authors. This case shows that there is more music that can be enjoyed and played publicly than that which is managed by the collecting societies.

As CC Spain project lead Ignasi Labastida said: “This decision demonstrates that authors can choose how to manage their rights for their own benefit and anyone can benefit from that choice, too. I expect that collecting societies will understand that something has to change to face this new reality,”

Let’s hope that Creative Commons-licensing and collecting societies will be able to work together in future. If you are an artist who is a member of a collecting society and interested in CC-licensing some of your work, let your society know how you feel so we can get to the future faster!