© is good for artists, ask them

Today I was copied into a Twitter conversation about copyright. It began with an interesting article about The Limousines and a rather badly informed interviewer taking issue with crowd-funding. From there it developed into a downer on copyright in general.

Let’s consider the Torrent Freak article quoted here:

tweet

140 characters won’t do it justice, so here’s my reaction.

Rick Falkvinge says gatekeepers take 99% of the money. That’s true. I’m well aware of the Tamla Motown story and how artists are gouged by the record industry but that’s a feature of the record industry not copyright.

I’m not interested in labels, especially big labels, and I see publishers as largely incompetent. The future—for creative music at least—is happening outside of all that. Independent artists (the ones I’m interested in) don’t give up 99% of their earnings to gatekeepers. They rely on their copyrights.

Rick Falkvinge says “Eliminate those gatekeepers and those 93% of the money go to artists instead – or at least, a significantly larger portion of it.” But if the artists have no legal claim to their work how can they earn from it?

We don’t have to guess how big business would behave in the absence of legal ownership. Sam Tarrantino (Grooveshark) makes money out of other people’s work. So does Kim Dotcom (MegaUpload). And so, of course, does Google and many others. They pay the artists nothing.

Tunecore screens uploads for tracks that are simply copies but they still get through and often appear on iTunes and other retail sites. Without ownership of their work how can the money “go to artists“?

Rick Falkvinge says:

The myth that the copyright monopoly is needed for any kind of artistry to make money, or even to happen in the first place, is an obscene myth perpetuated by those who have something to gain from skimming off 90% of the artists’ money by denying them an audience in an old-style racketeering.

But I can point him to hundreds of artists without any record label who say otherwise. Perhaps he can tell us how composers who write for TV and cinema would get paid (composers are getting a PRS distribution right now). Without copyright that money wouldn’t find its way to artists, it would simply stay in the pockets of TV and film studios. How would artists get paid by radio?

The old mainstream system was and still is corrupt but because of greed not copyright. The new technology companies want everything for nothing and would rather see the back of copyright. The old and new mainstream are both playing the same game.

Another music biz links post

The mid-to-end August pick of my Twitter lists and general browsing is this. I read everything I retweet or post in these round-ups so if your music biz interests vaguely coincide with mine you should find them interesting and sometimes infuriating.

Interesting looking trailer from Musformation.com about a forthcoming video.

Wired UK French culture minister thinks Hadopi is a waste of money—France’s three-strikes ISP infringement policing under threat.

CMU Most stakeholders satisfied with Universal’s EMI concessions, but some push for more the UMG/EMI negotiations drag on.

Search Engine Land How YouTube Will Escape Google’s New Pirate Penalty Google said they would degrade search rankings for infringers… apart from YouTube of course.

CMU YouTube top music source for young Americans, though CDs still selling a big noise a week or two ago was a report revealing that young people use YouTube for music a lot.

Billboard.biz Updated: Jeff Price, Peter Wells Out of Tunecore astonishing news the public face of Tunecore has left the building. Users will be feeling unsettled, Jeff is a great champion of DIY and indie artists.

Buzzsonic A useful collection of music infographics, cartoons, etc. Adrian Fusiarski’s Pinterest page.

CMU Streaming revenues growing fastest, though overall music spending still declining—there was a report by Strategy Analytics about streaming and physical sales. Interesting but limited to the usual not-comprehensive sources.

Digital Music News A Breakdown of Every Single Dollar a Major Label Makes… in this case WMG, including publishing by the look of things (I thought Warner publishing was separate).

All Things D TuneIn Creeps Up on Pandora, With 40M Active Listeners a web radio aggregation app grows large.

Prescription PR Is social media really that helpful to bands? refers to a Guardian article asking the same about authors of books.

Paste Infographic: The Best Record Labels (2004-2011) good infographic showing record sales by year by label, not for the colour blind though.

NPD Group Teens Credit Word-Of-Mouth Most Reliable Shopping Source the No Shit Sherlock award this month goes to NPD for discovering word-of-mouth is how most teens pick up on the music they buy.

Daily Herald Spotify, Pandora spur U.S. digital music sales past CD purchases—another press release, about digital overtaking CDs, again. Nobody knows when or if this has happened. So many tracks and albums are not monitored.

Music Technology Policy Interview with Andrew Shaw of PRS for Music on Negotiating with Google a guest post by Jonathan David Neal revealing what happened behind the scenes with Google and PRS.

TorrentFreak The Copyright Industry – A Century Of Deceit Rick Flakvinge’s summary is useful and accurate but I don’t agree with his conclusion.

New York Times The New Rise of a Summer Hit: Tweet It Maybe how social media is pre-empting the old record label and radio hit-making process.

DGM News A Letter To Lucien Grainge by Sid Smith at DGM (Robert Fripp’s music company). UMG/EMI still confused about their non-ownership of the King Crimson catalogue after 19 years.

Soundboy Where free streaming music lives 2012 Ian Hogarth of Songkick analyses his online listening. I’m interested in this because a lot of music biz people claim to be Spotify-only (“I don’t have any CDs, just Spotify” what?). At least 25% of my record collection is not on any streaming catalogue, Spotty included.

Hollywood reporter Newt Gingrich Settling Lawsuit Over Use of ‘Eye of the Tiger’ good discussion of the legal grounds and case histories of liberal musicians suing Republican candidates.

Barry Sookman Fair use for Australia? informative look at Fair Use in Australia and elsewhere.

New York Times Pandora and Spotify Rake in the Money and Then Send It Off in Royalties

August links, articles and news

I’ll be distracted by Logic and music for a while longer, so no time for ‘proper’ blogs at the moment. In the mean time here’s a bunch of links from the first part of August. I have posted some of these—among many other things—on Twitter already. The big news of the month so far is the second part of Hooper’s copyright report with proposals for the Digital Copyright Exchange, now called the Copyright Hub (see below).

GigaOM Freemium has run its course another theme of the month has been the decline of Facebook and the growing flaws in the ad-supported web site economy.

Bandcamp Merch! Bandcamp adds merchandise functionality to its already excellent and rightly popular indie music store.

Ars Technica Apple’s case that Samsung copied the iPhone—in pictures

Wired UK French culture minister thinks HADOPI is a waste of money (that’s 3-strikes in English).

Wired UK How Apple and Amazon security flaws led to an epic hacking is a must read which reveals Apple IDs and Amazon credit card details are very easy to break into. The promised follow-up article did not appear yesterday but I will look out for it.

Hypebot Billy Van went from 2,000 to 100,000 fans (Case Study)—but the metrics exclude anything I would consider meaningful growth. It may be there but I can’t see it. Some of the comments also ask revealing questions.

All Things D TuneIn Creeps Up on Pandora, With 40M Active Listeners

The Atlantic How you turn music into money is another article about the truly spiffing DIY goddess Zoe Keating.

Dangerous Minds A statement by Nadya Tololokonnikova (Pussy Riot)—making our punks look rather tame, Pussy Riot will probably be jailed for calling out Putin as a faux democrat and the Russian Orthodox Church as political poodles.

The Telegraph Musicians getting ‘more than half of royalty income from online streaming’ was probably the hyperbolic story of the week—some musicians may be but the whole thing seems to have been cooked up for PR, there are few hard facts and no overall stats.

Music:)Ally Interview: DIY musician Alex Day talks fans, the irrelevance of radio and why YouTube changes everything

And finally the second part of the Hooper Report analysed by Out-Law.com New UK ‘Copyright Hub’ would help address problems with copyright licensing framework, report says with a link to the pdf of the IPO report itself.

All your © are belong to us, part 4

How ECL would affect composers, songwriters and recording artists

We don’t yet know if music will be included in extended collective licensing under the new law. PPL and PRS appear to be interested but I’d argue there’s no significant body of music without a collective license that’s not already available to the public.

If ECL does apply to music then any music user would be able to ask PPL and PRS (MCPS) for a license to any piece of music. Unless owners had opted out a license would be granted. Of course, this is pretty much how PPL and PRS think today. If you ask them about using music they generally say you need one of their licenses and most of the time they’d be right but there are works which are controlled by other owners.

Which raises the question of how such material, and its owners, would be identified, whether they were members or not. I looked at some of those questions in part 2. And you might ask where this material would be found—I mentioned some of the sources of music  not yet licensed to third parties in part 3.

The supposed principle of ECL is that “not yet licensed” material can’t easily be licensed, so we must assume these ECL works are unidentified in some way. It’s easy to see where there’s a mass of such material—it’s all over the Internet. Without any positive ID it’s hard to see how opted-out works could possibly be excluded.

So a music user will license this unidentified work from an ECL society, that seems inevitable, and the ECL society will record the money paid under that license against the sparse information it has about the work.

In part 2 I mentioned some ways the world of ECL might track this more complex system of owners and works but it seems hardly likely anyone will bother with that. The simplest and cheapest solution for the industry would be to operate an extended black box of unclaimed license fees. At the moment most black box fees come from unidentified work used by a blanket licensee but in future specific licenses for unidentified work would be included. (A new EU proposal says black box income should become the societies’ money after 5 years.) That would not be very different from the way things are now. PPL and PRS black boxes would be full of unidentified funds but the unknown owners would now be deemed to be members.

MCPS licenses would also be granted without proof of ownership, so the black box would be extended further (I might be wrong but I can’t see how MCPS has much black box at the moment apart from mass duplication like JOL or library sync returns, but maybe it does).

I don’t see any of this as much of an issue for existing members. Their works, whether identified or not, would accrue license fees although the ease of licensing might mean the black box and the job of sorting it out becomes somewhat bigger. They would also be at risk of losing the “first use” of material they created. As things stand the creator normally gets the first option on their own material and that would be tricky if unidentified leaks became licensed under ECL.

The problem would be worse for non-members, it seems to me. It’s their work ECL is being created to hoover up—they are the target of the new law. By their nature non-members are a diverse group of savvy opt-outs, somewhat less savvy newcomers and perhaps the odd would-be-member. Does it really make sense to grant licenses for their material?

Deliberate opt-outs—who I pointed out would include thousands of Creative Commons owners—have decided they don’t want their stuff used under an existing society collective license, but that’s exactly what would happen, and it would be legal. Maybe unidentified CC works already languish in society black boxes but at least they’re not there because the law says they should be.

Newcomers are another group that deserves more care. They probably don’t know the ramifications of royalty collection by one society or another, in one territory or another. They may not even understand that an ECL blanket might make their work available for a Macdonalds advert, a water cannon manufacturer’s corporate video or a drug-themed dance music compilation. It seems rather monstrous that the state—which previously respected their inherent right to decide what happens to their work—now intends to turn it over to whoever wants it, for any purpose.

Especially when it’s most likely already available online for any who wants it other than commercial users.

Previous posts in this series:

All your © are belong to us, part 3

Who asked for collective licensing to be extended?

IPO

Since the announcements last week I’ve been reading various government papers and legal articles about the IPO Consultation on Modernising Copyright. Among other things I’ve been looking for the logic behind ECL. While there is still confusion about orphan works and ECL, as far I can see there’s no explanation of who outside government asked for ECL and who will benefit.

The government says it intends:

…to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.

Responses to the IPO Consultation haven’t been published in full so we can’t know what comments consumers or businesses made. If I had responded, my immediate concerns about access to copyright material would be these:

  1. The owners of copyright material are often slow to release products for which there is a clear demand. One example would be a proper remaster of Steely Dan’s back catalogue (2 sets of remasters have been issued but both are simply tweaks to the CD dupe masters rather than the original final master tapes).
  2. Regional encryption and localisation of DVDs locks up copyright material the owners choose not to distribute globally. In many cases Region 1 dubbing or subtitles exist and a UK (Region 2) release would appear straightforward. One anime title I would buy is only issued for Region 2 in an Italian version although there is a Region 1 localisation in English.
  3. Many copyright works are deleted. They remain in the repertoire of record companies, publishers and film studios but are no longer available for the public to buy and unavailable for other companies to sell.
  4. Over the years I have often wanted new material from recording artists who are simply frozen in record company contracts, unable to release new work and unable to escape their contracts to record elsewhere.
  5. Record labels manage catalogues badly. I have personally dealt with 2 cases where current record labels wrongly claimed ownership of masters from the late 1970s and early 1980s. These claims were simply based on a series of transfers of label rosters from one label to another with no reference to the underlying contracts. There must be many other acts in the same position and their work is generally unavailable.

So I can think of cases where copyright content would benefit from more enlightened exploitation but all these are covered by existing collective licensing. The weaknesses here are not the scope of collective licensing but the behaviour of rights owners, yet government proposals to liberate unavailable copyrights make no mention of them.

On the other hand I can’t think of a single real world case where copyright content outside existing collective licensing is unavailable—far from it. There are at least 3 mainstream channels that already facilitate the very thing the government is setting out to do:

  1. Every music act I know with copyrights outside collective licensing makes their material available through YouTube, Bandcamp or some other channel.
  2. Millions of tracks are available through music blogs. These are a mix of copyrights under collective license but also many others. I challenge anyone to find material for which there is any demand, that is not available on a music blog.
  3. As I mentioned before there are many Creative Commons copyrights available outside the collective licensing system.

As far as I can tell government is setting out to unlock material which is freely available while turning a blind eye to real problems with entirely different copyright owners.

So perhaps it is businesses that are after music copyrights outside the existing licensing system? If so you’d expect to find it at the top of this shopping list (pdf) drawn up by young web entrepreneurs: An Open Letter to EU Decision Makers from Neelie Kroes Young Advisors but they don’t mention it at all.

So, at the heart of government policy for modernising copyright—beside real world problems apparently unaddressed—we find a proposal for which there seems to be no known need. Perhaps the demand for ECL is completely outside the music industry, that’s possible. If anyone knows what it is I’d be very interested—ask around, let’s see if we can find out.

All your © are belong to us, part 2

How might ECL change the copyright licensing system?

The principle of copyright in WIPO countries is that creators own the rights to their creations. This inherent right is immediate and requires no further action by the creator.

For 10 years I have advised musicians and composers about the complexities of the music industry on that basis. Don’t panic, you own your stuff and until you decide nothing can legally happen to your work unless you say so.

Now it can.

The government calls this extending collective licensing. Collective licensing is the traditional system whereby PPL, MCPS and PRS operate blanket licenses on behalf of their members. The extension proposed by the government allows collection societies to license non-members’ material without them joining.

That’s the opposite of what we have right now. The current situation is simple, there are 3 categories of content: public domain, rights administered by societies and rights held by individuals.

Collection societies have membership conditions new rights holders sometimes find hard to satisfy. Membership of a collection society is not a given. That is the opposite of what is proposed—the whole system will be turned upside down. Details of government safeguards and other measures intended to make the system work even better than it used to are being published in stages. PPL and PRS are apparently interested in ECL.

My experience of big government projects suggests this may not turn out as hoped. We are told these changes are in the interest of consumers but the only group I see calling for them is Internet commerce—Google and their friends in the free content lobby. That fuels my scepticism. The whole basis of this change is that a substantial body of works whose rights owners are not members should be made available to consumers. Another way to look at it is that Internet commerce wants to enforce a license on otherwise unavailable content.

Changes 1: public domain, opt-ins and opt-outs

Instead of 3 simple categories the system must accommodate more.

Firstly, existing categories probably need some attention.

Public domain

As things stand there are various catalogues of public domain works but no central record. Some of these have been reintroduced to publishing as traditional arrangements (see Alan Price and House Of The Rising Sun). A world where all works have a defined status—previously only society members’ works did—means public domain works must be identifiable otherwise they are liable to be hoovered up by an ECL.

Society members

Society members are covered but even they need to keep an eye out. Many of them have work on public media sites, sometimes attached to non-members videos for example. There is nothing, other than vigilance, to stop these being appropriated by a new ECL society seeking legal repertoire for their clients—the web content lobby.

Secondly, creators who previously controlled their rights by default need to be codified.

Deliberate non-members

Non-members who make their work available to unlicensed Internet sites, rights owners who simply don’t want to join PPL or PRS and others will now need to opt out. Maybe even members of foreign societies who are not members of PPL or PRS (but have royalties collected through them) may need to opt out. All these rights owners must now be identified and in future—how can it work otherwise?—everything they create must be registered by them as out-of-bounds to ECL.

If not they are liable to be badgered repeatedly by an ECL society that wants their work, or even worse keep having to retrieve it from default licensing.

Creative Commons etc.

Creative Commons is often seen as “anti-copyright” but it isn’t, it’s just another set of copyright licenses. To my knowledge none of the CC licenses fit with collection society licensing, so it’s fair to say thousands of CC owners will want to opt out. If not, their rights as non-members are liable to be expropriated by a new ECL society.

Social media and new creators

Many commercially viable works today are created by non-members and people who never considered themselves artists. A viral video for example can earn millions for a non-member on YouTube. They may not be a musician, lyricist or recording rights savvy but their work can be managed and monetised by Google adverts without any PPL or PRS interest. Such work—and the work of thousands of non-viral non-members—might be a prime target for a new ECL. Again, people who never even heard of membership may need to opt out in order to choose the best licensing vehicle for their works, or none. Otherwise they risk being corralled into a default ECL regime which may be equivalent to membership yet worse than non-membership.

Orphan works

Originally orphan works and ECL seemed to overlap, and they still do. The latest but not yet final position is there will be a register of non-exclusive orphan work rights and these will be distinct from non-members works. I look forward to seeing how that is done.

Changes 2: identifying rights owners and their works

Under the existing system only members—opt-ins—need to be identified and it is up to collection societies to track their works. The music industry was slowly moving towards a comprehensive global system of CAE, ISWC and ISRC identifiers. The transcription of paper records has inevitably introduced errors into rights databases and although the system is faulty it works after a fashion.

The new system must identify these new classes of rights holders and their works. I don’t see how this system can function unless their status is formally recorded. That isn’t necessary at the moment.

Consider an example: an extended collective licensing body picks up a YouTube video. There are many possible rights holders (video, composers, phono masters, performers, designers, etc.) but they have no known identifiers. The YouTube poster has a username but that isn’t permanent or controlled and may have no connection to the rights owners. Likewise the work(s) title(s) may be ambiguous, unknown or just wrong. Google’s Content-ID system may identify the work but that system has identified non-music videos as music copyrights so it’s not reliable. The extended collective licensing body must track all these variables and, should the rights owners come forward, assign them and any income to the proper identifiers with their societies or private owners. And that is a very simple example.

There are proposals underway for a Digital Copyright Exchange but we don’t know what it will look like. It could be a new database of hashed or fingerprinted works meta-data tied to standard identifiers. That would be useful but the last I heard it would not be a stand-alone system, rather a network of existing society databases which makes it unlikely to deliver the new requirements.

Will regulators ensure creators are safeguarded or will they nod through a system that implements the will of the government just to get the job done? I think we can reflect on past performance of government as a yardstick.

All your © are belong to us

The new law and the music cottage industry

The UK government (IPO) has announced it will legalise opt-out collective licensing. MCPS, PRS and PPL currently operate opt-in collective licensing.  Andrew Orlowski of The Register explains more here.

(Thanks also to @Copyrightgirl and @SaskiaWalzel on Twitter for detailed background information.)

Under this new law collection societies may license categories of content without the permission of creators. So if you fall into any category as a songwriter or record label they will license (i.e. own the rights to) your stuff unless you say no. I would guess existing societies will take advantage of these changes but that remains to be seen.

The IPO web site says:

Whether you’re an inventor, an artist, or an entrepreneur, our site can help you find the right protection for your intellectual property.

As they propose to abolish ownership and impose blanket licenses by default I have no idea what they mean by that.

Consumer Focus congratulates the IPO on their proposals although they offer no examples of consumers calling for easier access to privately managed material which is not currently part of a collective public license. (Speaking as a consumer I would say it’s a heck of a lot easier to get at non-members’ material on Bandcamp than some members’ back catalogue.)

This legislation presents new complications for the many songwriters and performers working in the ubiquitous music cottage industry.

Here is your license

Any collection society that takes up extended licensing will operate blanket licenses. Unless they opt out non-members will become members and be bound by the terms of these licenses. Their copyrights may then be used in a way they don’t like and didn’t agree to. Everyone who previously didn’t opt in because they don’t like PPL or PRS blanket license terms must now scramble to opt out.

There goes your money

There will undoubtedly be a de minimis payout for each distribution (as there is for traditional collective licensing) so small acts may never see any royalties while societies accumulate unpaid amounts and give them to Robbie Williams.

Who are you?

Societies lay down rules for identification and they may ask for proof of copyright ownership which is fair enough, if somewhat arduous. It’s not unknown for them to delay or refuse membership. That was one thing when it was an opt-in system, now it’s an opt-out system the identification bureaucracy will extend to everyone if only to allow them to leave and keep a record of it. Will every writer—in or out, or potentially in or out—now have a CAE? And who will pay the PRS fees of default opt-ins?

Your call is important to us

Collection society errors and hurdles have always been simply far worse for small acts than big ones. The little guy is often at the wrong end of PPL or PRS mistakes and finds it impossible to get them fixed. (I was recently talking to yet another artist who cannot get her PPL and MCPS repertoire registered correctly after numerous phone calls.) On top of this every composer I know—regardless of income—has persistent errors in their PRS. Everyone will now be opted into an error prone system which is to known to deal poorly with the very copyrights it will hoover up.

Goodbye international © cooperation

To opt-out, small artists must identify all their content (including text and images) and notify it to the collective licensing body or bodies. This runs counter to WIPO (the international copyright treaty) although the UK and USA have tried to sideline conventional IP rights before. I’m not an international copyright lawyer but it looks like the moderately complex, sort-of-working system we had is about to become really chaotic and the small artist will be trampled underfoot.

Territory-by-territory opt outs?

International copyright management will become more complex. Many artists tailor their international society memberships to optimise collection for their own needs. This sometimes means they are purposefully not members of one or more domestic societies. The new body may assume they are unlicensed and subsequently opt them in—this will interfere with exclusivity or planned non-memberships.

Thoughts are still occurring to me now I’ve finished so it’s likely I’ll update this blog in coming days.