Creators Rights Infographic Event Summary
19 Nov 2015
This is a complex topic with many perspectives… Despite operating under international Treaties in a global market (Wipo Performances and Phonogram Treaty (WPPT) and Wipo Copyright Treaty (WCT)), and moving towards a single digital market in Europe, the reproduction and performing rights at the heart of this discussion vary from country to country. As a result, the lack of harmonisation of performers’ rights across the EU remains one of the biggest issues.
Reproduction rights generated the industry a lot of money in the 1980s/ 90s. But with streaming increasingly set to dominate over sales, reproduction rights have become less important than performing rights…
The law doesn’t spell out what performance rights look like, except to say that it should “…be a fair, direct payment to performers…” – both featured artists and session musicians – whenever a public performance or communication to the public occurs.
Performer Equitable Remunertion (ER) was introduced “to correct perceived market failure for equity rather than efficiency reasons”; to ensure performers always received for uses of their work regardless (for example) as to whether or not they have recouped on their contract. ER sits outside of label contracts and is unassignable.
Whereas webcasing (live streaming) is covered under the Communication to The Public and derives performers a 50% share of royalties, digital downloads became subject to a new right – Making Available – as these didn’t constitute a broadcast, but there was an element of transmission to the act of downloading a digital copy of music.
Streaming has on numerous occasions been compared to both sales and broadcasts. Because of the interactivity in on-demand streaming it was given the exclusive Making Available right rather than qualifying for the Communication right of a broadcast, meaning labels treated royalties in the same way as a sale of music, despite many elements of streaming being very similar to traditional broadcast. Indeed, the view from the performer community is that the Making Available right was introduced in order to deal with sales of downloads.
It could be said that it’s inevitable that the direct income generated from communication and public performance is probably on its way down… that all music played in shops and to some extent, traditional radio is likely to be replaced at some point by a form of interactive streaming?
Given that Performer ER does not apply to these forms of consumption at all, it is therefore likely that stable income for session musicians and featured artists who haven’t recouped on their contracts is at risk of all but disappearing.
Horace Trubridge: “ER is the jewel in the crown of performers rights. We have to make sure streaming and whatever follows it provides ER or it will only be those with independent incomes who continue [to record]. This is essential – if we don’t solve this now, we have a very bleak future.”
“Pre-digital, hertitage artist contracts were signed at a time when there was no such thing as the Making Available right – would any court consider it reasonable labels to have assumed ownership of a right not in existence at the time the contract was signed?”
Alexander Ross: “The principles of these rights may be simple, but the position is one of an embedded outlook on rights on the Continent, which is different to the UK… we now suffer from a copyright Act related by its regime on the Continent that is directly opposite to how the UK itself thinks about copyright.”
“Most labels do a 50/ 50 net profit deal with their artists. Labels couldn’t survive on sharing 50/ 50 of gross. It’s not possible, to survive on that basis, whether as majors or independents. So the idea of an ER right within MA across the board is a non-starter from the commercial perspective.”
The whole concept of downloads and streaming was far way in the formulation of the WIPO Treaties; there was then no concept of it. They were underpinned by DRM (digital rights management), particularly TPM (technical protection measures) to protect digital content. Labels embraced this, but without consulting consumers who absolutely hated them, due to the restrictions on use.
TPM was an anti-piracy measure in the Treaty, the other was MA. At the time, MA was conceived as an anti-piracy measure, with no concept of streaming or downloads at the time. It was an additional tool to stem piracy. The public tired of it (inability to share, copy, play on multiple devices etc.), opting for pirate sites, then moved onto YouTube, dramatically reducing label income over the last 15 years.
Labels were needing to make more money out of a declining sales – the soft target was the artist, by paying the same royalty rate on digital as they did on physical.
Alexander Ross: Nobody else offers investment in the way a label does, but it needs to be fair on results. In terms of winning the new types of deals, you either get a synch or brand deal or you don’t. That’s different from a record deal whereby you may sell a few or a lot… If you do want to look for that you need a manager to sell personality to get those deals.
Artists are becomming increasingly aware of the need to be savvy and educated about the business of music. There are other options to a traditoinal label deal; label service deals are more equitable and artsist managers are key, leaving creators to focus on their work rather than be expected to understand the minutiae of detail in unfathomable royalty statements from streaming services. International pressure is mounting from artist and performers who are calling for a recalibration of artist and performer digital rights in a world increasingly dominated by big tech.
Horace Trubridge: There has to be a truth and reconciliation process between labels and performers, in order to make us all feel we can take ownership of something we need to protect from tech companies.