“Creative Commons” musicians sidelined by Sena


This is an english translation of our previous post ‘Creative Commons muzikanten buitenspel gezet door SENA‘.

Legislation always lags behind reality. Will a dubious Dutch law from 1993 and an exclusive mandate – a legal monopoly – from the Ministry of Justice & Security soon lead to a limitation of open licenses in the Netherlands?

Due to a lack of oversight, Sena (Dutch Collective Management Organisation, Foundation for the Exploitation of Neighboring Rights) is on the verge of flagrantly denying the largest group of musicians in the world access to independent exploitation of their works in the Netherlands.

Just before the internet became ubiquitous, Sena obtained an exclusive mandate to collect and distribute royalties for commercially released music recordings (phonograms). This idea originated in the 1960s and was introduced in the Netherlands in 1993 with the Neighboring Rights Act. However, this law did not anticipate the internet, nor independent musicians releasing their own music, open licensing models, and user-generated content. Creative Commons did not exist in 1993, nobody knew what the internet was, and independently releasing music was an underground phenomenon.

Much has changed since then. Compared to 15 years ago, Independent musicians now write 8-10 times more music compared to signed acts. This group of independents is growing year after year and increasingly leveraging technology to produce more, faster, and more efficiently. The European Union has been working on new legislation that recognizes the rights of this new generation of musicians and enables them to decide whether they want to engage with rights organizations.

And this new reality has coexisted successfully alongside the traditional revenue model. Sena had agreements that included guarantees accepted by musicians and their partners. In return, it was agreed that Sena would not collect any fees, and this responsibility was delegated to these intermediaries. This arrangement worked to the satisfaction of all involved for over 10 years. Presently, Sena has all the leeway within the law to continue this practice, as extensive research into the parliamentary history of the Dutch Neighboring Rights Act has revealed.

What has changed?

A few years ago, the Dutch Supreme Court confirmed that Sena is the exclusive party for collecting fees for the use of commercially released phonograms. Sena seized this opportunity to apply the brakes.

Sena now aims to prohibit all musicians and their chosen business partners from offering music in the Netherlands without Sena collecting fees for its public performance from January 1, 2024. This includes playing music in waiting rooms, stores, lunchrooms, restaurants, gyms, etc. This prohibition would apply even if the creator and performer of the music, who holds all the rights, distributes it under a Creative Commons license and explicitly waives the right to royalties. Sena intends to use its exclusive mandate and the Neighboring Rights Act to disregard this request.

To the extent possible, the Licensor waives any right to collect royalties from You for the exercise of the Licensed Rights, whether directly or through a collecting society under any voluntary or waivable statutory or compulsory licensing scheme. In all other cases the Licensor expressly reserves any right to collect such royalties.

Article 2(b)(3) of the CC 4.0 licenses.

Both the government and Open Nederland believe that rights holders should be able to choose how and by whom their rights are represented. The Dutch government has added an entire chapter, Chapter Ia: the exploitation agreement, to the Copyright Act for this purpose.

The Supreme Court only looks at what the law states, not whether the law is still suitable for the present time. If Sena proceeds with its planned exclusive mandate from 2024, we would be disregarding over 30 years of developments and undermining a fundamental right for creators to make choices.

The consequences

Musicians will lose the ability to choose their own revenue model when Sena starts collecting fees from venues in the Netherlands where currently 100% rights-inclusive music is played. They will lose control, insights, and income. Parties such as Tribe of Noise, which have successfully helped and paid these musicians for over ten years, will no longer be able to do so. Sena will collect fees and determine who gets paid based on procedures and processes that are at least opaque and partly outdated. The Netherlands would take a step back in time, away from innovation, transparency, and equality. The happy few, the artists and record labels we know from Dutch radio and television, probably won’t be affected. Their slice of the pie would unjustly expand if Sena regains its sole control.

Call to action

The Ministry of Justice and Security, the Copyright Oversight Board, Sena, and Sena’s law firm all point fingers at each other for a solution. According to us, a solution does not lie there.

(Investigative) journalists, industry organizations (music users in retail, leisure, healthcare, and hospitality), members of the House of Representatives, musicians, music representatives, and other stakeholders, please contact us to share your ideas, assistance, or contacts. You can reach us at bestuur@opennederland.nl.

Transparency: Open Nederland advocates for transparency, good governance, and open models such as Creative Commons. Hessel van Oorschot, a board member of Open Nederland, is not only an international representative for Creative Commons but also a co-founder of the music platform Tribe of Noise, one of the background music providers in the Netherlands for “rights-inclusive” music for retail, leisure, and hospitality.