Pick of the week’s links

Taking a break from getting to grips with Logic Pro 9 (I am learning it from a book—and a computer) to post up the stuff I found worth reading from the last week. I don’t agree with all of it but it’s worth a look.

Some good links last week

Some good reading and news articles from last week.

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.

What’s so great about viral?

The only thing more misleading than “likes” is viral view-counts

Sleepless In SeattleThe most popular web sites live on gossip and fleeting excitement, often cut-and-pasted from elsewhere. The Daily Mail gets more visits a day than any other “news” web site and The Huffington Post goes after a similar audience, but long before web news plunged headlong into the world of aggregation, link-bait and keyword spamming, tabloids were doing the same thing in print. Viral media is as old as the sensational headlines of early newspapers and the titillating print titles of the Victorian era.

When Nora Ephron died it was sadly inevitable “news” media would fight each other for the most prominent reprise of That Fake Orgasm Scene. As an example of Ephron’s work it isn’t the best, and the punchline these reports declared “perfect” was suggested by Billy Crystal. But it was a cinema hit the tabloids were happy to wheel out again.

Although Nora Ephron was a great writer and director that story isn’t good enough for mainstream media. Chasing popularity and page views rather than telling the story (even the BBC and The Economist featured the Fake Orgasm) distorts the facts. The Daily Mail is a massive advertising platform not a great source of news.

Viral content and pop media parasites offer empty calories. The public swarms all over them for a few seconds and moves on to the next micro-thrill. There’s no point spinning something deep to get a viral response, people don’t want their pop deep. That’s not what it’s for, they want to be distracted and feel included without doing any work. Music spreads between people who value art rather than artifice and if it’s good enough it builds careers. It doesn’t survive in the fast lane where the audience only has a few seconds to spare.

If the social media exchange rate—which I mentioned the other day—is low, the viral exchange rate is even worse. It might earn some money on YouTube but it won’t attract a lasting audience to match view-counts. Big label acts frequently mistake tabloid popularity for artistic reach. When their obituaries are written they’ll be remembered for that meat dress, their cleavage on Sesame Street or a pierced nipple at Superbowl halftime. Maybe that’s the best they can hope for.

Social media pundits get over-excited about viral content and view counts, as though large numbers validate their theories. Only advertisers really care.

I enjoyed the OK Go videos although they haven’t made me a fan yet. I don’t envy them having to come up with a new Rube Goldberg installation every time but at least they’re in control of the story. It may be best to see inbox sensations as outliers on the promotion curve and leave viral blockbusters to the tabloids.

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.

Links from the last week

Here’s a mega bunch of interesting stories and articles from last week (which was unusually busy for some reason). If you want a more manageable trickle I re-tweet a few links like these most days on Twitter.

  1. Music:)Ally YouTube revenues tipped to top $3.6bn this year
  2. Blurt Trust Yourself… and get a good lawyer (or not) – Pt. 2
  3. Fast Company How Amanda Palmer broke records—and other music industry stuff—on Kickstarter
  4. Any And All Records All you have to do is click here to get a record deal.
  5. Billboard Opinion: Universal-EMI Senate Hearings Filled With Misinformation, Missed Opportunities
  6. Dangerous Minds Why Photographers Are Boycotting The Stone Roses
  7. CD Baby DIY Musician How to Use Stageit to Broadcast a Live Concert from Your Laptop
  8. Deadmau5 We All Hit Play
  9. CMU OfCOM’s three-strikes code: Reactions
  10. The Quietus Olympic Music Sync Fees “Beyond Insulting” AND The Leading Events Olympics ‘policy’ not to pay musicians
  11. The Music Void Are Performing Rights Societies Relevant Anymore?
  12. Kim Biep 5 Music Industry Networking Tips For Introverts
  13. Billboard Is Spotify Labels’ #2 Source of Revenue? Probably Not
  14. NYT Media Decoder Fight Over a Potential Rolling Stones Tour Reveals Promoters’ Backbiting Ways
  15. The Guardian How music acts as medicine for the soul
  16. Hollywood Reporter Judge Blasts Universal in Key Eminem Royalties Case Ruling
  17. CMU Universal spin allegedly delays IFPI report
  18. Plagiarism Today Why Bother With a Copyright Notice?
  19. GigaOM Why Louis CK and Amanda Palmer are the future of content
  20. The Atlantic Why Spotify Doesn’t Make Sense for Musicians: 70,000 Listens Earns Less Than $300
  21. pdf David Touve Licensing Interactive Music Services (2 pages)
  22. Business Week Kim Dotcom, Pirate King (summary of the original bust)
  23. CMU Sony consortium acquires EMI Publishing after getting FTC approval
  24. Hypebot Alex Day & The Future Of The Music Industry
  25. Hypebot Fan-Funded Album Outperforms Rihanna And Coldplay On UK Charts