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The Featured Artists’ Coalition (FAC), the new campaign group dedicated to making “the most of the opportunities presented by digital technology” for its already impressive and growing membership of featured music artists, had its first meeting on 10 October 2008 with the Rt Hon Andy Burnham MP, Secretary of State for Culture Media and Sport. The meeting’s agenda featured many of the demands set out in the Coalition’s Charter, including a debate on “fair dealing” and, importantly, an extension to the term of copyright in sound recordings and the performances on them.
Background
The landscape of the music industry has changed dramatically in recent years. Digital technology has caused a sea change in the way consumers use and listen to music prompting a shift in the traditional relationship between artists and record labels. Gone are the days, for established artists at least, when the record labels unequivocally called the shots. A new generation of artist is developing, pushing back the frontiers of established practices in the industry. Radiohead’s decision last year to release their latest album online ahead of its release in stores threw down the gauntlet, exposing the potential of alternative business models. Of course new artists will still need the support of the labels but more established acts can now hope to exert more control over their careers, and most importantly, their music.
FAC, which launched on 5 October 2008, seeks innovation by the music industry in the digital age and a unified voice for featured recording artists (i.e. those artists who are credited on recordings and who are the primary named performers). An already impressive band of supporters, including David Gilmour, Robbie Williams and Radiohead, have put their names behind the campaign.
Key demands
Ultimately, the Coalition seeks to protect featured artists and allow them to retain ownership of their music, rather than assigning their proprietary rights to record companies early in their career in order to secure a deal. The Coalition will also be looking to form a dialogue with key players in the industry to promote fair practice and business that, it is hoped, will benefit all participants in the recorded music value chain. The Coalition’s campaign has six key demands, which, it argues, should be implemented into future contractual arrangements in the industry:
- an acceptance in the recorded music industry that featured artists should receive fair compensation whenever their business partners receive an economic return from the exploitation of the artists’ work – the Coalition’s stance is that as the record and technology companies devise new ways to deliver music featured artists should be involved in these negotiations and be fairly compensated;
- copyright in applicable recordings should be transferred by licence rather than assignment, and the transfer period limited to 35 years – traditionally featured artists’ copyright has been assigned at the outset to the record companies, whereas the Coalition’s view is that these artists should be able to remain the copyright owner of these rights, and the 35 year period is, it says, in line with recording agreements in the US;
- the “making available” right should be monetised on behalf of featured artists and all other performers – the Coalition argues that this right (the right of authors and performers to authorise or prohibit the dissemination of their works through interactive media) has also been an non-negotiated, assigned right, historically, and that often it has not been exploited to full effect, whereas in the digital age these rights represent a significant value for rights-owners which should be monetised accordingly;
- record companies should be obliged to follow a “use it or lose it” approach to the recording copyrights they control – the Coalition highlights that when recorded music is not exploited and released to the public the featured artists lose out. It also means that the music is only accessible illegally;
- performers’ rights should be the same as those belonging to the authors of copyright works (songwriters, lyricists, and composers) – the Coalition refers to certain rights that the authors of recorded music possess, including the right to receive income when a recording is broadcast in the UK, when it is played on a free-to-air radio station in the US or when a film containing the recording is shown in a cinema, and argues that performers should also be entitled to income in the same way; and
- a change to copyright law in the UK to end the commercial exploitation of unlicensed music purporting to be used in conjunction with “critical reviews” and abusing the UK provisions around “fair dealing” – the Coalition refers to the use of audiovisual footage being used in, for example, DVD extras, together with a “review” without the permission of, or payment to, the copyright-owner of such footage.
Term extension
Copyright extension was considered previously in the 2006 Gowers Report (commissioned by the Chancellor of the Exchequer) but ultimately the Report concluded against it. Now, however, it would seem that the issue back on the agenda. In July this year, the European Commission proposed a Directive to amend the existing Copyright Directive 2006/116/EC, backing an extension of protection for rights in sound recordings, from the current 50 years to 95 years, in line with the US model.
Like the Coalition, the Commission seeks to bring performers' protection more in line with the protection already afforded to authors of copyright works (70 years after their death). The Commission estimates that over the next decade the expiry of copyright in recordings released between 1957 and 1967 will mean at least 7,000 performers in any of the larger Member States and a proportionate number in the smaller Member States will lose all of their income that derives from contractual royalties and statutory remuneration claims from broadcasting and public communication of their performances. Of course this represents a real concern for long-established artists such as Sir Cliff Richard, but will also affect unknown session musicians, who remain entitled to equitable remuneration.
The Commission states that an extension would offer a dual benefit to both performers and record labels: performers would be entitled to continue to receive royalties throughout their lifetime, and labels could expect to receive additional revenue from the sale of records that would otherwise have fallen out of copyright.
The Commission’s proposal is also echoed in the Coalition’s demand for “use it or lose it” provisions to be built into record contracts, which will see rights reverting to performers should the relevant sound recording not be marketed appropriately during the extended period. If there is no commercial interest in the recording (i.e. neither the record producer nor the performer wish to market it), the recording would no longer be subject to copyright protection. The Commission also proposes that record companies should set up a fund, into which they pay 20% of their revenues earned during the extended period, to help session musicians.
At ground level, however, the Commission’s proposals have divided opinion. The Open Rights Group (ORG) has analysed the figures used by the Commission and concluded that the proposed extension is designed to benefit the music industry and not, as Commissioner Charlie McCreevy asserts, performers. The ORG figures show that all but the top 20% of earning performers in the music industry can expect to earn between an extra 59 cents and €26.79 a year under the extension, whereas record labels stand to earn an extra €200,000 to €4.1 million a year each under the new scheme. 1 Obviously these figures reflect that a record company controls more repertoire than an individual artist. In its campaign for cheaper content, the ORG claims that it is likely that “significant costs” will be passed on to the end customer, although the Commission claims that the cost of music should not rise.
Comment
It may be that there is no perfect solution. Nevertheless, musicians should be fairly remunerated for their efforts, and this should include the performers, not just the authors, of copyright works. FAC has established itself at a time when there is renewed impetus in the pre-existing campaign for broader protection and returns from digital technology for featured artists thanks to European Commission’s recommendation to extend the term of copyright for sound recordings. In the light of the degree of scepticism expressed not just by Gowers but by an independent study paid for by the Commission itself 2 , the proposal is a significant victory in a long campaign run the music industry. The Coalition’s impact, however, will be judged not by its influence in that campaign but by the take-up of other key recommendations by the legislature or, at industry level, by other parts of the industry including record labels and technology companies.
Article to be published in the Entertainment Law Review Issue 3 2009. Reproduced here with permission of Sweet & Maxwell.
1 Copyright changes would only earn fifty cents a year for artists, say activists”, OUT-LAW News, 08/09/2008
2 The Recasting of Copyright & Related Rights for the Knowledge Economy (The IViR Centre of the University of Amsterdam www.ivir.nl).
"article to be published in the Entertainent Law Review issue 3 2009 . Reproduced here with permission of Sweet & Maxwell."
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