New Media vs The Music Industry
So this evening’s blog post seeks to answer one very important question, a question which to date no one has actually asked me but which I feel I should answer: why doesn’t Re:place Radio play Britney Spears? I know, now that I pose the question you are intrigued.
Well there are the overarching reasons such as I wouldn’t play Britney Spears on my podcast if you paid me and I think Re:place Radio’s tame A&R Man Mark McNeill would have something to say about it as well.
To really get to the bottom of why we as a podcast network can’t go and play any music we want I am first going to go through a brief explanation of the copyright surrounding recorded music, referencing Wikipedia where necessary so that you can go and draw your own conclusions about how the giants in the music industry at large have chosen to interact with the new media landscape.
According to Wikipedia, so it must be true, copyright as a concept dates back as far as 1710 when it was realised that the unrestricted copying of writings with no payment to the original author meant that there was no incentive for the original authors to write anything. The concept of there only being a fixed term during which you can exploit this copyright was enshrined right back then with the Statue of Anne, the very first piece of copyright legislation, granting creators a generous 14 years to exploit their material in.
Believe it or not there was a copyright clause in the US Constitution of 1787 which seeks “To promote the Progress of Science and useful Arts” and this is where things become interesting. The basic premise of copyright as a concept is that if other people can expoit your work as soon as you have created it then there is no reason you would create it in the first place. So copyright becomes the tool of numerous industries and ensures that there is need for payment of original author whenever copyrighted material is used or exploited.
What do I mean by exploited? If you are a drug company and you spend millions of dollars developing a new drug your competitors cannot come along and make a copy of the drug with the same recipe, the company that created it owns the copyright surrounding the drug.
If you as a musician write a song your mate cannot come along and perform the song without your permission or your consent, you own the copyright on it. If you record one of your songs people can’t distribute it without your permission or consent, your own the copyright on the recording too.
And here is raised an interesting point, if you are a musician and your record one of your songs there are two types of copyright which come into play. (I should point out that I am going with the simple assumption that you are a lonely singer songwriter who writes all of your own material in your back bedroom and you don’t get any help from your mates/band members/cat/budgie who might want cut in on the creation of this copyrightable material and any of the money that you make out of it.)
The Copyright of a piece of Recorded Music
1. Well done in writing a song you have become the proud owner of that musical work. Simply by creating it you and only you have control over it. You might want to do something like write it down so that you can prove you came up with it. The good news is that you can now go and exploit the hell out of it. In the music industry this is of course referred to as publishing. The important thing to remember is that if you have written a song you can then make money from it: perform the song yourself, get someone else to perform it, record it, get someone else to record it, you can make money from it all.
2. If you went to all the bother of recording one of your own songs then congratulations are also in order, you also own the copyright to that sound recording. Even better, you own the copyright on that sound recording for the next 50 years. This might sound like ages unless you are Cliff Richard and your copyright terms are about to run out. The copyright on the tune itself is protected for even longer, at 70 years past your death meaning that if you have written a master piece then your heirs can be benefiting from it for quite a while.
So where does this leave us at Re:place Radio wanting to play Britney Spears on our podcasts? Well as you are probably realising there would be a few people that we would have to ask if we wanted to play “Toxic” on next week’s episode of Watch out for the Wilsons (the only place I can think that they might want to play it.)
The waters are muddied somewhat when we look at the way that the music industry operates. Taking Toxic as an example, the first thing to notice is that it wasn’t actually Britney who wrote it. Shock horror I hear you gasp, it was actually Cathy Dennis who wrote it, and she seems quite good at penning pop hits too with everyone from S Club 7, Will Young and Kylie reaching number one in the UK charts with songs that she has written.
So we have located the publishing on the song. The important thing to remember is that there is money floating around the system simply because of the copyright which Cathy Dennis, through her publishing company, is having exploited by Britney Spears. For instance, every time that the song gets played on BBC Radio One Cathy is looking at about £18 per minute and there is a sliding scale paid by every broadcaster in the UK based on potential reach and listenership figures. A quick squinty at iTunes tells me that Britney was warbles Toxic for over 3 minutes so when the song was released and played nation wide on the uninspiring loop that is a commercial radio playlist Cathy was probably sitting comfy on quite the wad of cash.
So Britney isn’t getting any cash from the publishing side of Toxic, we assume that she hasn’t been contractually cut into the deal which is always a possibility and something which is widespread in the big money commercial sector. But then who is making money from the sound recording which Britney made of the track?
That ladies and gentleman would be Sony BMG, one of the biggest players in the murky but slowly dying and consolidating world of the large commercial record label. When Britney signed to Sony subsidiary Jive Records they paid her an advance and effectively bought the masters, and her future masters off her. If you buy a Britney CD or iTunes download you are simply putting money back in the pocket of Sony BMG, money which they paid out to her when she signed her deal or committed to an album, money which they hoped they would be able to make back.
This advance and recoup model is how an awful lot of the traditional music industry is set up to operate, its how traditional publishing deals work as well. If you want to see the other way of doing it and if you are a regularly gigging artist who now realises that they have copyrighted material which you are exploiting off your own back then get yourself over to Sentric Music who will show you the other way it can be done – reinventing the music publishing industry. Look hard enough in this now epic blog post and you will find a link to Sentric’s Blog.
So why can’t Re:place Radio play Britney Spears I hear you cry, returning to this blog having read this far down, gone away, made your fortune in the music industry and come back penniless due to the expense of drugs and hookers.
Mainly its the money. Everyone in the traditional music industry is looking to recoup the investment that they made investing in their commercial artist. If we wanted to play commercial music on our podcasts then we would have to seek the permission from the publishing company and record label of every band and every track which we wanted to play.
So how does BBC Radio One get to play whatever takes their fancy then? Where does that £18 a minute you were talking about earlier on come from? This is where we encounter the music industry’s paymasters – the collection societies PRS for Music and PPL.
It is important to remember at this point that involved in any sound recording we are dealing with the two types of copyright outlined above. Money relating to both the composition and the sound recordings are chased through the system by different collection society. Both of the collection societies issue licences to music users, broacasters and distributors whether radio stations, bars, concert halls or hair dressers of behalf of their members for the use of music.
PRS for Music – the new, shinier, almost Web 2.0 name for the MCPS-PRS Alliance – is the organisation which makes sure that the money is collected for the exploitation of publishing copyright. As a podcast network we could purchase a blanket licence from PRS for Music and would be contributing towards the publishing royalties due to the composers of the music we were paying. The society cooked up a podcasting licence in 2008 to cover the use of music in podcasts which has some strange conditions in it like “No more than 50% of the tracks used in the podcast can be performed by one particular artist or written by one particular composer without approval from the Alliance.” What does this mean? Well it pretty much means that my own Re:place Radio Presents shows would fall fowl as I spend 30 minutes focusing on a single artist. But they have at least been so good as to cook up a licence so we will let them off. So there’s us got a blanket licence to cover half of our copyright obligations. All sounds good in theory doesn’t it, until…
The PPL are the organisation who track down the cash owed to the performers and the record labels because of the copyright tied up in the sound recordings. Not only do you need to get yourself a licence to pay for the publishing side of a track’s copyright but you also have to get a licence to pay whoever is lucky enough to own the master or sound recording of the track you are after. So why don’t we just invest in a blanket licence from the PPL and then be able to play whatever we want?
At the moment it would appear that the PPL don’t believe in Podcasting. On their website they do have a section for the use of music in Radio Programme Downloads (Podcasts) and they very helpfully say that they are looking into creating a licence which would cover the use of 30 second clips of music in podcasts. For the use of any other music, especially the use of full length tracks, we are encouraged to start discussions with the “copyright owning record label.”
And that is where it all falls down. When LIPA Radio was run as a streaming radio station there were licences available which meant the station could play whatever it wanted so long as the tracks were reported back and the licence fees were paid. Streaming radio stations are seen as far less dangerous things to the traditional music industry because there is no easy way of recording or keeping the tracks which are streamed. Now this form of content delivery has always been open to exploitation, from the first time that someone realised that they could tape music played on the radio and then listen to it whenever they wanted there have been issues with broadcast platforms.
The particular problem with podcasts is that when you download a podcast you can keep it for as long as you want. We send out our podcasts as bog standard mp3 files. They are open to all the exploitation that a normal mp3 file is: illegal sharing and copying, the whole shebangs. If we put a Britney track in our podcast next week you could cut up that mp3 and you would have a fairly decent copy of Britney’s track. There would be absolutely no reason for you to pay the record label any money for another copy of that track and that scares them witless. Remember they have already paid Britney a huge advance up front for the track and are now looking for every possible way to claw that money back.
So how are podcasts able to exist?
For a start we as a station are doing our best to seek out for you the best unsigned music that we can get our hands on. This means that we are scouring the internet looking for unsigned bands who’s music we are excited about and that we want to promote. Coincidentally, one of the great things about working with independent musicians is they tend to own all of their own publishing and haven’t signed their masters over to anyone else (like a record label).
What does this mean for Re:place Radio? Well it means we can talk directly to the artists and ask them to licence their work to us for free. We can play these artists music without owing any money to PPL or PRS for Music. Music which can be played on podcasts and has been licensed as such is generally known as “podsafe“. Networks of podsafe music have been created by podcasters like Re:place Radio who want to get access to great music without having to jump through all of the hoops of licensing or negotiating with big labels who are afraid of podcasts. So if Re:place Radio is playing music on a podcast then we have either found it through a database of podsafe music or we have negotiated its use directly with the artists.
What kind of things do you negotiate?
In reality we don’t negotiate an awful lot. Normally when we approach indie artists they realise that we are really just out to promote their music to a wider audience. We have a copy of our podsafe licence at the bottom of every page of the website and you can click here to get a copy for yourself. Our general terms and conditions set out to our artists that we aren’t making any money from playing their music and that they are waiving their rights to have any collection societies come and kick out door down in their name.
Doesn’t that mean that Re:place Radio is stealing from artists? By playing their music, by exploiting work over which those artists have copyright without paying aren’t the artists loosing out?
Well now that I have explained to you how music copyright and the traditional music industry is interfacing with the new media world you will have to wait for my next blog entry to find out how the independent musician is fighting back, turning traditional copyright conventions on their head and for some of them, making far more of an impact because of it!
Photo credit: MaxW on Flickr
