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Creators’ Rights In The Digital Landscape

10th November 2015 @ 6:30 pm - 9:00 pm

Venue: Fyvie Hall, University of Westminster

EVENT DETAILS

WHO SHOULD COME: artists; performers; managers; lawyers; record labels; digital platforms; copyright & IP specialists and regulators.

In its 2015 Digital Report the IFPI has confirmed that revenues from digital formats are on a par with those from physical, with “streaming at the heart of the music portfolio business”.

Indeed, in the first half of 2015, over 1 trillion songs, movies and TV series have been streamed online – more than double the amount in 2014 – yet performers still do not receive a fair share of the income generated by their recorded performances.

With international pressure mounting in the shape of the #Fairinternet campaign, and the MMF’s recent launch of its Dissecting The Digital Dollar report, this think tank considers the pressing issue of creators’ rights and remuneration in the digital landscape.

Central to this debate is the presentation of a paper by Fiona McGugan – Making Available, Communication To The Public & User Interactivity – which considers the evolution of communication rights that overshadow conventional distribution and reproduction rights as music consumption increasingly shifts away from the ownership model of ‘sales’, towards access models of streaming services.  

Aside from making four key recommendations, this paper presents a detailed study of a little understood right which is pivotal in determining creators’ royalty payments from digital platforms, and raises a central question as to whether technically speaking, rightsholders have actually obtained this right necessary in granting licenses to digital platforms.

As such it perfectly builds on Just A Click Away: How Copyright Law Is Failing Musicians – a short free paper intended to demonstrate the legal mechanisms that occur behind each consumer ‘click’ on streaming platforms and how the payment structure to labels, publishers and artists can change with each one.  Both of these papers have been published concurrently.

Understanding how this right is applied, territorial variations in the application of rights, and how licensing structures are determined according to the levels of user-interactivity of digital services lie-at the heart of possibly the single biggest issue facing the music industry in recent times – how much artists get paid.

This change has been accompanied by an increasingly vocal outpouring of discontent from the artist and performer community, rightly concerned about the low royalty rates they receive from streaming services in comparison to conventional sales of their music (both physical and digital), or from broadcast royalties.

But there’s more to this debate than how streaming royalties are calculated in the first place, a complex and far from transparent process involving, ARPU (average revenue per user), ‘breakage’, artists’ share of the average number streams, the divvying-up of the spoils of ad revenue and share (if any) of advances paid by services to labels.

Out of very real concern that in the face of declining sales of music, fewer artists and performers will be able to make a sustainable living from their work, it is increasingly being argued that there’s an urgent need to re-calibrate artist and performer rights in a digital world that sees the speed of development of new ‘access’ consumption models highlighting huge gaps in legislative solutions in the application of intellectual property rights, in particular reproduction rights.

Significantly, there is no shortage of amendments to IP legislation – the difficulties appear complex due a number of reasons, including:

  • Pre-digital, ‘legacy’ contracts that pre-date digital distribution
  • Lack of clarity in asserting newly created digital rights in order that artists derive a value from them – in particular, the Making Available right.

In her paper, Fiona McGugan articulates the difficulties in managing this exclusive right such that it wields negotiating clout, and more importantly, derives real value to artists and performers.  Indeed, the Making Available Right – a (theoretically key) right necessary in the process of licensing to digital services has been ‘hoovered-up’ as part of a basket of rights that ultimately determine how much creators get paid, bringing into focus the legitimacy or otherwise of the licenses agreed between label rightsholders and streaming services.

Bringing together a leading digital rights lawyer and representatives from both artist and performer communities, this debate will examine the gulf between industry practice and the intentions of law, and consider what needs to be done to secure a viable future for artists as we fully embrace the streaming age.  

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