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SACEM and free licences

Salut,

I have a podcast that introduces musicians who make free music (e.g. music that is in the public domain or under a free licence). I look for such musicians in portals as dogmazic or jamendo and usually I ask the artists for their agreement to use their songs. Besides I do some kind of interview with them that often gives insights into their musical, philosphical or economic universe.
Lately I receive more often just short answers like "Yes, please use my "Licence Art Libre" or "CC" -licensed music. P.S. I am in SACEM."

I thought that SACEM-membership and having published music under a free licence is not campatible with each other, as SACEM demands to have all rights of all songs of an artist. E.g. on the SACEM page is stated:
Becoming a member of SACEM implies:
- your commitment to registering all your works,


and Article 29, Point 3 of the SACEM statutes says:
All authors, author-directors, composers and publishers must sign a Membership Agreement Form whereby they adhere to the Articles of Association of the Society. By signing such Membership Agreement Form, each author, author-director, composer or publisher undertakes, in particular:
...
3. To notify, under his responsibility, for registration in the Society’s repertoire all works of which he is the creator, publisher or rights-holder as provided for in Article 4 of the Articles of Association and to warrant that such works are not vitiated by infringement, plagiarism or illicit borrowing.


So from my point of view it is impossible to be SACEM member and to have songs that other people can use without paying royalty fees to SACEM.

SACEM gave me no answer to that question and there seems to be confusion on that question in other platforms as well. So I thought I try my luck to get some enlightment here. Does anybody know if there are statements by SACEM that answer the following questions.

1. Is it possible for an author who is a member of the SACEM to publish single works under a "creative commons" licence or under the "licence art libre"?

2. Can authors who have licensed under a "creative commons" licence or under the "licence art libre" become members of the SACEM?

3. I wanna play in my podcast some songs of a SACEM member. Now those songs I wanna play from that musician are from 2004/2005 and have been published by it's author under a free license (the "Licence art libre") and are to be found on Jamendo. This author became SACEM member later (in 2006/2007).
Can I play and make the songs of that author which are under the "Licence art libre" available in my podcast without paying royalty fees?


I'd love to get your ideas, hints or comments on these questions. Merci,
Torsten

Réponses

  • Quick answers for I'm in a hurry.

    1) No it is not possible for a sacem member to release under any free licence, because he has to declare all his creation to the sacem, and beside he has no more the diffusion and reproduction rights over his work.

    2) Seems to me that you can become a member of SAcem even if you released some free licenced music, the copyright status of the tracks declared to the SACEM will change and become all right reserved, but the previous free licence status remains for anyone who got it with the original (free) licence.

    3) Much more complicated ! In theory (correct me people if I'm wrong). You can't broadcast Sacem songs without paying sacem, but has seen above, if you found the titles under free licence earlier you're only engaged by the terms of the licence so you just have to respect this, but if you found the track on a copyrighted CD (sacem) you can't.

    I don't know how clear I am, these sacem and licence stuff are quite a pain to get straight.

    anyway, good luck !

    dF
  • hi torsten.

    you get it quite correct.
    Sacem itself declares radical incompatibility between sacem collective rights management membership and free licenses.
    you'll find here (french only) http://fr.creativecommons.org/menu3/main_faqgen.htm#7 the Sacem answer to CC-fr team, stating quite clearly anything with CC license is forbidden to their members (of course, this is to protect them as sacem doesn't believe authors rights could profit from it)

    adding to the Sacem statuses articles you quote, article 2: it is the members themselves, entering the society, who bring to Sacem all their works all on rights attached to manage them on their behalf: so by signing to Sacem, the musicians themselves do allow the Sacem to manage their rights the exclusive way it does.

    a sacem member cannot publish, release, broadcast nor do anything with free licenses.
    it's pretty much the same with all collective rights management societies requiring exclusive management (like sabam in belgium or sgae in spain)

    the only thing allowed to sacem members is stream only (no download) on their personal website only, provided it be declared at sacem as such, and without any commercial revenue (so no ads, no shop page and so on)

    so all tdBt answers to your 1) 2) 3) items are correct.
    i'll add to the 3).. in theory it is so. tracks releases under a free license by a band *before* they adhere to the sacem, *in theory* remain under the free license regime they received it for all who received them before. so they can benefits the rights they were granted by the authors.
    i say *in theory* as i don't know what will happen *in real life* in this case, if a rights society appeals on it. juridically it should be clear. but these kind of societies are uncomfortable with this, to say the less....
  • Salut tdBt and bituur,


    So question one is clear now. Thanks for your answers.
    tdBt écrit:
    You can't broadcast Sacem songs without paying sacem, but has seen above, if you found the titles under free licence earlier you're only engaged by the terms of the licence so you just have to respect this, but if you found the track on a copyrighted CD (sacem) you can't.
    dF
    bituur écrit:
    in theory it is so. tracks releases under a free license by a band *before* they adhere to the sacem, *in theory* remain under the free license regime they received it for all who received them before. so they can benefits the rights they were granted by the authors.
    i say *in theory* as i don't know what will happen *in real life* in this case, if a rights society appeals on it. juridically it should be clear. but these kind of societies are uncomfortable with this, to say the less....
    .

    I think the same but this would mean that **in theory** I can even continue to distribute and copy such "now-SACEM-but-former-only free-licensed-titles" under a free licence allthough there might be copyrighted versions of it.

    SACEM cannot want that I distribute better versions (free licensed) of their songs so they wrote in their statutes Article 29

    " By signing such Membership Agreement Form, each author, author-director, composer or publisher undertakes, in particular: 2. To notify, under his responsibility, for registration in the Society’s repertoire all works of which he is the creator, publisher or rights-holder as provided for in Article 4 of the Articles of Association and to warrant that such works are not vitiated by infringement, plagiarism or illicit borrowing "

    - Nice vocabulary which to me means that SACEM thinks that nobody is allowed to do anything with free-licensed songs of now-SACEM members.

    And further the Statute says:

    " ... 4. To make known, at the time of his admission, those of his works for which he may have previously assigned to a third party the exercise of the rights contributed by him to the Society. He agrees to cause said works to enter the Society’s repertoire as soon as possible. "

    Which in my opinion means that SACEM thinks that all former CC or LAL licensed songs enter the SACEM repertoire and will loose the free licences.

    So certain points of the SACEM statute seems either to be invalid or they are right and freelicensed songs can loose their status as free licensed. I think that even the membership of an artist who released songs under a free license is invalid as he has no way to fulfill the above condition:
    " He agrees to cause said works to enter the Society’s repertoire as soon as possible. "
    which in my opinion would mean that he had to delete all of his released songs that are under a free licence. And only if he agrees to do so he can become SACEM member. But he cannot delete all files from all people who got his song from dogmazic or jamendo or whatever.

    I asked SACEM about this and also about the question if I can play songs by SACEM members that are under a free licence three times - unfortunatelly I received no answer from them yet, so I decided to publish SACEM songs that are under free licenses and tell SACEM about it everytime I do so.
    I don't know if this is very clever, but unfortunatelly I got no better idea yet to get an answer from SACEM.
  • bituur écrit:
    hi torsten.

    tracks releases under a free license by a band *before* they adhere to the sacem, *in theory* remain under the free license regime they received it for all who received them before. so they can benefits the rights they were granted by the authors.
    i say *in theory* as i don't know what will happen *in real life* in this case, if a rights society appeals on it. juridically it should be clear. but these kind of societies are uncomfortable with this, to say the less....

    From another point of view: If *in real life* songs will loose the status given to them via the free licence when the author becomes SACEM member this would mean that a common good (hence the name creative commons) can just be privatized without compensation for the public.

    In the opposite case: if a court would confirm the validity of the licences even if the author becomes member of a collecting society this would mean a strengthening of the commons. Of course the problem of prooving the license remains with the user of the content.

    Does anybody know about any sentences by courts about that topic?

    cheers,
    Torsten

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