Songwriters have already had a say. BASCA chairman Simon Darlow has used his speech at the 2015 Ivor Novello Awards to criticise current 'safe harbour' provisions in EU and US law, pointing out that the likes of YouTube undermine streaming services, and were exploiting safe harbour legislation saying this was "undermining the value of our music". But even those who do pay songwriters and their publishers don't pay much. Internet radio service Pandora is currently appealing the US Rate Court's decision to order it to pay 2.5% of revenues to compensate BMI songwriters and publisher members. The rate of rival PRO ASCAP of 1.85% was upheld by the US Second Circuit Court of Appeals. And some don't pay at all! In late August PRS for Music wrote to it's members saying it is beginning legal action against online music streaming platform SoundCloud after "five years of unsuccessful negotiations".
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But the underpayment of artistes is not new. Back in 2004, Californian state senator Kevin Murray wrote this in a report in US recording industry practices:
“Much like the public generally dislikes politicians, but love their individual representatives, Artists have respect for their record company handlers, but distrust the companies themselves and the system they operate under. They see themselves as victims of an indentured servitude system designed to keep them perpetually indebted to the companies who also own the product of their labor. Some artists expressed gratitude for the initial investments made by the record companies in their talent, but feel cheated by their meagre share of the proceeds when the gamble pays off. One artist’s representative went so far as to accuse the record companies of running a continuing criminal enterprise.
The record companies are genuinely appalled at the accusations and feel that they are the true victims. They are insulted that after making multi-million dollar investments in artists, few of which actually pay off, that they are then held hostage by the successful few. They claim they are forced to pay large advances and otherwise accede to whims of spoiled, pampered artists who make millions, yet whine that they are oppressed. They further complain that artists should be helping fight the real enemy of digital piracy, instead of accusing record companies of thievery.”
More recently in the context of the class actions brought by artistes in an attempt to increase their digital download royalties, the Dixie Chicks called the royalty and accounting process “systematic thievery”.
With Universal announcing on the same day that its last quarterly figures showed that streaming income had now overtaken download revenues (with digital already having taken over physical sales and licensing combined), it's important to stress that the definition of what a stream is makes a huge difference to artiste's payments, as the major labels are seemingly applying old style royalty rates to streaming income - in many cases (and in particular with heritage acts), taking 90%+ of all streaming income they receive This has been successfully challenged in the courts in Sweden and Finland and panellist Horace Trubridge (Assistant General Secretary, Musicians Union) said that the MU would fund a challenge in the UK - and said that the MU now think they had found a suitable litigant (although the CopyKat notes that in the US, the majors simply ignored a ruling won by FBT Productions against Universal which gave FBT a 50% share of digital revenues) and Warners, Sony and UMG all managed to persuade thee artistes in class actions to settle on terms that were little better than old style physical product contracts with marginally better royalties and the carrot of the share of a lump sum pay off (that had already been raided for huge legal fees). Trubridge, who had once been in a successful 70s pop band, said his band got just 3% of the 'recorded music' share of any stream - with his label (who were originally Magnet, now owned by Warners) taking the rest - 97%. As Horace said, hardly fair and there are many heritage artistes and non-featured artistes in the same boat (or worse!), although Horace reserved his real venom for YouTube - the world's leading streaming company, which has somehow avoided directly paying for using sound recordings.
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- all featured artists combined and listened to in a month share €0.46 euros
- authors (SONGWRITERS) €1.0 euro
- the state/ taxation €2.0 euros (more than the authors/ performers’ share combined)
- producers (labels) and streaming services combined received €6.54.
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- Policy 1: Specify remuneration for individual modes of exploitation in the contracts
of authors and performers.
- Policy 2: Improve the cross-border transparency of the national systems.
- Policy 3: Limit the scope for transferring rights for future works and performances
and future modes of exploitation.
- Policy 4: Create a more conducive environment to support the role of trade unions,
freelance associations and CRMOs when they fulfil similar functions.
- Policy 5: Facilitate the exercise of the right of making available. This policy option
effectively represents a fall-back in the event that the other policies fail to protect
authors and performers sufficiently and is broken down into three possibilities:
- Voluntary collective management of the right of making available.
- Unwaivable right to obtain equitable remuneration from the producer/publisher.
- Unwaivable right to equitable remuneration administered by a CRMO.
This writer is sure the major record labels will NOT be happy with this report - although some points - particularly (1) and (2) above, seem both aspirational and couched in Eurobabble. (5) is particularly interesting and gets to the heart of the problem, not least as it is becoming increasingly obvious that allowing labels to directly collect revenues will not help artistes, either in the short term or the long term.
As the debate drew to a close, it was clear that whilst both recording artistes and record labels - as well as non featured artistes and the the UK's recorded music collection society PPL - have shared goals in fighting piracy, getting US terrestrial radio stations to pay for the use of sound recordings and maximising revenues from new digital formats, not least through improved models with the streaming platforms and other digital players, the real ire was reserved for the major record labels, who seemingly have no intention of changing their business models and offering a fair share of digital revenues to artistes - and yet want artistes to support their move in, for example, extending the copyright term for sound recordings and striking better deals with the digital platforms.
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Berklee’s Fair Music report and the French Government’s Agreement For A Fair Development Of Online Music - a voluntary code of conduct between artists, labels and digital platforms - have also added heat to the debate, not least in the wake of a well-documented leaked streaming contract, that shed light on a model renowned for its fondness for NDAs, which highlighted the inequality of bargaining power between creators and rightsholders. The French code provides that: "Labels agree to share with artists ‘all revenues and remuneration they receive from digital music broadcasting and distribution services when monetising their recordings’. (‘Revenues and remuneration’ means monetary and non-monetary benefits directly linked to recordings, including where those benefits cannot be specifically attributed to a rights-holder. This must include all the unrecouped advances/minimum revenue guarantees obtained from online music service providers – aka “breakage")"; a limit on royalty reducers used by labels to artificially reduce the already often pitiful percentages paid to performers; provides that labels will ensure transparency in accounting - showing an overall summary of reductions, explicitly showing their cumulative effect on the artist’s revenue as a value and/or percentage, and that the position of the major label's equity stakes in streaming and other platforms will be discussed.
France may have taken a lead here. McGugan's report calls for:
- Precision and clarification in the EU Directive And WIPO Performances and Phonograms Treaty (WPPT)
- A new deal for legacy contracts
- Collective licensing for the "making available" right
- Compulsory licensing for first reproductions
As Featured Artists Coalition board member and Pink Floyd drummer Nick Mason said: "Artists are not looking to fight technology, or the fantastic access digital services and technology gives music fans. We want to foster innovation and push the uptake of these new and exciting opportunities for communication and creativity. However, we must make sure that the system pays back the artists of the future whose hard work and talent will make the services successful for the long term".
http://musiclawupdates.blogspot.co.uk/2015/10/music-streaming-timely-update-in-ever.html
http://musiclawupdates.blogspot.co.uk/2015/10/performers-speak-up-for-their-rights-in.html
Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB, CJEU, Case C. 466/12 2014 and also see Rosati, E. (2014) Early Thoughts on Svensson”
communication/making available, ‘new’ public, altering the scope of exclusive rights
Remuneration of authors and performers for the use of their works and the fixations of their performances (2015) Dr. L. Guibault , Mr. O.M. Salamanca & Dr. S.J. van Gompel. This study was carried out for the European Commission by Europe Economics by the University of Amsterdam (IViR). ISBN 9789279471629 and the report is downloadable here: http://www.ivir.nl/publicaties/download/1593
http://musiclawupdates.blogspot.co.uk/2015/10/should-we-take-lead-from-france-on-fair.html
US Recording Industry Practices was written by California state senator Kevin Murray, Chair, Senate Select Committee on the Entertainment Industry in 2004. This proposed both a fiduciary duty on record labels and statutory penalties on labels failings to account for royalties. Senator Murray, formerly a talent agent, reportedly later joined the recorded music industry. I can no longer locate the paper online, but some of the detail can be found here: California 's Recording Industry Accounting Practices Act, SB 1034: New Auditing Rights for Artists http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1571&context=btlj
Footnote: Best revelation of the night? having been asked why established and successful bands re-sign with record labels - the agreed answer was 'so the band's manager has someone to blame when something goes wrong' !
2 comments:
But these also help the artist to get exactly payment for the work they have done. Even its not a good idea to pay less to artist Because this will limit the artist skills.
If you pay the under wages no one will really ready for work and in music industry all you need is to money for promotion of your business. So its not fair.
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