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By Chris Cooke | Published on Monday 7 June 2021
A bunch more legendary artists have joined the call for a change to UK copyright law that would result in so called performer equitable remuneration being paid on streams. The Rolling Stones, Van Morrison, Tom Jones and Barry Gibb are among those who have now joined the 156 artists who previously made that call via a letter to UK Prime Minister ‘Boris’ Johnson back in April.
The proposal that ER be paid on streams was discussed repeatedly during the UK Parliament’s recent inquiry into the economics of streaming. Supporters of the proposal argue that – on average – labels currently take too big a cut of the monies paid into the music industry by the streaming services, and that introducing an ER system would be a simple way to address that problem.
The ER principle currently applies when recorded music is broadcast or performed in public. It means that – in those scenarios – any performers who appear on a recording have a statutory right to payment even if they do not own the copyright in a track, and oblivious of any contract they might have with the copyright owner. Performers receive royalties from airplay and public performance at industry standard rates via the collective licensing system.
Technically speaking, ER is due when the performance and communication elements of the copyright are exploited. However, the record industry has defined a stream as exploiting the reproduction and making available elements of the copyright. And although making available is similar to communication, UK law explicitly states that ER is not due on that element of the copyright.
During the oral hearings of the Parliamentary inquiry, there was much debate over whether the record industry had, in fact, incorrectly defined a stream in copyright terms. Maybe an alternative definition should be adopted, which would mean that a stream was exploiting an element of the copyright on which ER was already due.
Although, as the big old inquiry reached its conclusion, organisers of the #brokenrecord and #fixstreaming campaigns said that, if copyright law was just rewritten so that ER was due on making available, then the current definition could stay in place and performers would be guaranteed minimum payments whenever their music is streamed.
The letter sent to Johnson in April – and re-sent this weekend – states: “Today’s musicians receive very little income from their performances – most featured artists receive tiny fractions of a US cent per stream and session musicians receive nothing at all. To remedy this, only two words need to change in the 1988 Copyright, Designs And Patents Act. This will modernise the law so that today’s performers receive a share of revenues, just like they enjoy in radio. It won’t cost the taxpayer a penny but will put more money in the pockets of UK taxpayers and raise revenues for public services like the NHS”.
The original letter in April was signed by plenty of big name artists – including Paul McCartney, Chris Martin, Paloma Faith, Brian Eno, Kate Bush, Gary Barlow and Damon Albarn – which ensured it got lots of press, in the UK and beyond. However, in terms of the government’s response, organisers got what has been described as an “interested but non-committal reply” from a junior minister.
This is possibly why the letter has now been re-sent with a bunch more artists added as signatories. Organisers of the two campaigns also reference a new report published by the World Intellectual Property Organisation all about the economics of streaming.
A postscript to the new letter explains: “This is the second time we have sent this letter. This week the World Intellectual Property Organisation produced a report concluding, in agreement with us, that a remuneration right for streaming is the correct approach to our problem. Since we last wrote, many more artists, performers, composers, songwriters, producers, their estates and professional bodies have contacted us to add their names or to offer support”.
Many have pointed out that – with the new signatories added to the letter, which also include the children of John Lennon and George Harrison, Sean Ono Lennon and Dhani Harrison respectively – all four of the British performers selected by Prime Minister Johnson when he appeared on the ‘Desert Island Discs’ programme are, in one way or another, now backing this campaign.
Johnson’s other choices on ‘Desert Island Discs’, by the way, were American band Booker T & the MGs, and the very dead and very German composers Beethoven, Brahms and Bach.
It remains to be seen if the new letter gets any bolder commitments from Johnson and his ministers. Although a spokesperson told The Times that the government would prefer it if artists, labels and the streaming services could “work together to find a solution”. They added “we will keep the law under review and we are not ruling out changes in future if the evidence supports it”, though as commitments go, that’s pretty non-committal.
Of course, while adding ER to the making available element of the copyright would require only a simple edit of copyright law, getting a system in place to process ER royalties on streams would be much more complex.
Inevitably at least some streaming money would be lost to new administration costs, and there would be winners and losers even within the artist community, with newer artists on more favourable label or distribution deals likely among the losers, especially if they’ve recouped any advances and such like.
Though those newer artists still paying off big advances would definitely be better off in the short term; session musicians who currently get nothing from streams would also be winners; and legacy artists stuck on terrible old record contracts – who are arguably the artists who have been most screwed over by the current system – would probably be the biggest winners overall.
Some on the labels side might be hoping that, as the live industry gets going again – and those artists for whom the loss of live income was catastrophic get their businesses back together – maybe the whole ER on streams debate can be pushed onto the back burner forever.
Although, the clock is tick tock ticking on the super valuable 1960s recordings catalogue, which is currently due to come out of copyright in Europe in the 2030s. The last time the record industry got the copyright term on sound recordings extended from 50 to 70 years after release, the fact old timer artists also benefited via ER was the most powerful argument in favour of extension.
With the inevitable future campaign to get the copyright term up to 95 years – bringing Europe in line with the US – there will be another opportunity for artists to push for ER to be extended to streams.
Unless, of course, getting the Stones, Van Morrison and some Beatle children on board for the current campaign swings it for Johnson and an amendment to UK copyright law comes much sooner than that. We shall see.