release for free of certain pieces of content does not necessarily entail a waiver of all exclusive rights covering those pieces of content.[1] The CC licence indicates to users that “some rights” are kept “reserved” by the respective licensors. Magnatune combines this informational purpose with the insertion of a technological protection measure which consists of a (not easily removable) vocal tag providing a reference to the CC licence applicable to the use of each specific item. From a business-related point of view, the main objective of the Magnatune platform is that of making certain uses of its content freely available under CC in order to increase the reputation and appeal of its material. This then encourage Magnatune’s users to buy tangible and intangible goods embodying those performances (for example CDs and music downloads); it also enables subsequent uses such as the synchronisation of performances in timed-relation with a moving image (so-called “synching”). A second example is given by Musikethos, which is a digital platform devised and managed by a non-profit association of classical and jazz performers who use mainly recordings of their live performances of public domain works (for example, ancient music and chamber music pieces) in order to foster not only the management of commercial uses not comprised in the CC licence but also the booking of live performances by agents, concert societies and other cultural institutions.[2]
These examples show that the application of flexible open access licences to digital recordings enables the pursuit of objectives which go beyond mere solidarity in order to encompass the creation of new and promising business opportunities for performers and producers. These examples also show that the creation of such business opportunities by performers and producers adopting open access licenses for the release of their digital performances generates what economists call a “positive externality”, namely, a self-interested decision by these actors which spills over to parties other than those who explicitly engage in the decision. In these examples, performers and recording producers are not the only ones who capture the benefits of their business decisions to opt for an open access management of their respective rights. The public at large is given the opportunity to freely enjoy performances of creative works that, notwithstanding their legally unprotected status, would not constitute digital commons. In the
absence of a “commons-based” release of their performances, musical
