The music rights situation is a very fluid one, with a broad divergence between what the rules say and what is common practice. In the current rights regime, we see some folks argue that any form of taking is defensible, which is a position with which I do not have a lot of sympathy.
We have a different position that intellectual property law inherently violates a natural right, which is also not my position. Finally, we have
a dissent against permissive licensing as if permissive licensing is a positive evil. I’ll address this last idea.
Permissive licensing takes a different tack to the problem of intellectual property than the old “all rights reserved” regime or the “pirate bay” approach. Rather than engage in civil disobedience, the permissive rights licensor demonstrates that one can simply license to others to use works in ways that are fully compatible with copyright. This is the opposite of an anti-musician’s-rights, anti-intellectual-property rights approach–it’s instead a recognition that the creator can choose to license her or his property to encourage and permit its dissemination.
In this context, the last thing anyone could/should suggest is that liberal licensing of
works somehow will “replace” great music or even set up a form of competition for great music. The flickr example is constructive–just because there are hundreds of thousands of great BY images on flickr for anyone to place (with attribution) on her or his website, this does not mean that flickr CC is the death knell for the gifted professionals whose work prompts people to pay for their work. Similarly, the fact that people like to post digital music with CC or other open art licenses does not mean at all that
this is “where all the music action is nowadays”.
Liberal licensing facilitates music creation, but nobody confuses the license itself with the act of creation.
As to whether digital music has a future, it’s hard to say–it’s far too young and new. But I imagine that the new genres of music–and the old genres captured digitally for preservation–will endure.
I do think that music and software open source are non-identical–but that doesn’t mean that they are completely inanalogous.
In music, the ongoing paradox remains–the monetization of recorded music is assisted by a rights regime providing a limited monopoly to
creators (or their assignees). Yet music “borrowing” is an historic fact so embedded in classical and popular music that its development depends on just this kind of borrowing.
Time and democracy will permit a further discussion of how long any copyright term should be–as, in my view, the current extensions are too long.
I don’t find the choice of an artist to use unlicensed music in violation of copyright to be a particularly compelling argument against liberal licensing of music. I don’t see the debate as one between computer software designers and musicians–but a more fundamental debate about what use(s) will be permitted of material.