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Music Rights Guide by Alexander Ross

A quick trip through how music rights work and how they are licensed
by

Wiggin LLP

on 18 October 2016

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Transcript of Music Rights Guide by Alexander Ross

THE LAW...
The owner of a copyright work has the exclusive right to exploit the work in a number of ways:
To
copy
the work (s.17)
To
issue copies
of the work to the public (s.18)
To
rent
or
lend
the work to the public (s.18A)
To
perform
,
show
or
play
the work in public (s.19)
To
communicate
the work to the public (s.20)
To make an
adaptation
of the work (s.21)
The law is set out in the
Copyright, Designs and Patents Act 1988
…and has rights regarding secondary infringement (dealing etc)
...and a word on terminology
The
mechanical
right
= the right to copy musical compositions
The public performance right


In the UK
legally
= live performance on stage or by speaker/screen at a venue


In the UK
colloquially
= the above
and
communication to the public


In the USA
legally
= as per UK colloquial

Presentation by
Alexander Ross, Partner, WIGGIN LLP

MUSIC RIGHTS -
GETTING THE JAM
WITHOUT TAKING THE RAP

The latest legal news on Communication to the Public

Broad definition generally, but different for different works/circumstances
Any means or process
Must involve a fairly large and indeterminate number of potential recipients
(SCF)
The motive of profit is "not irrelevant"
Must be to a public not at the place where the CTTP originates (
Murphy
)
If a retransmission, it must be to a new public
...but retransmission by a different technical means is CTTP even if to the same public (
TVCatchup
)
Overlap with public performance when in public venue (
Murphy
)
Making available online can include merely facilitating transmission by others (
Newzbin
)
Making available need not involve any actual access by the user (
SGAE
)
May not be CTTP if the recipients are not targeted (
Football Dataco
)
Linking is not CTTP if the link is to a page or site that is publicly available (
Svensson
) - and the same is true of framing (
Bestwater
)
Linking to a live broadcast is not making available the broadcast copyright (
C More Entertainment
)
Direct injection is not CTTP unless through an affiliate platform (
SBS Belgium
)
Communication by electronic transmission
...and in the United States

Broadcasting by wire or wireless means, excluding internet transmissions (except those in the nature of a broadcast)

Making available to the public so they can access from a place and at a time individually chosen by them

LINEAR

ON DEMAND
Public Performance
Public Performance
Broadcasting
On Demand:
Streaming only
On demand downloads are not a public performance (US Court of Appeals for 2nd Circuit, 2010)
THE MUSIC BUSINESS:
IT'S HORRIBLY COMPLICATED
How many statutory rights are there in a piece of recorded music?
Copyright in the musical work and lyrics –
PUBLISHER/PRS

Copyright in the sound recording –
ARTIST/RECORD LABEL/PPL

Performer's rights –
ARTIST
or (for source music)
RECORD LABEL

Composer's moral rights –
COMPOSER

Performer’s moral rights -
ARTIST


The writer member assigns to PRS:

the right to perform his works in public;
the right to communicate his works to the public;
all rights in the nature of (a) and (b);
all corresponding rights in other territories; and
the film synchronisation right in every work composed or written by the member for a film

PRS Member Rules
A record label member assigns or licenses to PPL:

a) the right to broadcast its recordings; and
b) the right to dub for the purposes of broadcast

The label grants to PPL representation rights on an agency basis for on demand services on a case by case basis

(Performers are not members of PPL - they simply register to collect their royalties)

PPL Member Rules
FILM...
Communication to the Public

“The Composer agrees that the Producer shall have the right without further payment to exhibit the film in theatres in the USA……”
US Motion Picture Licence
The Synchronisation Right
A peculiarity of the music business
The right to incorporate music into the soundtrack of a production
(and other rights as included)
Not a “legal” right – there is no reference to synchronisation in the CDPA
There is only one moment of synchronisation

BUT

The licence is not granted in general, it’s granted for specific purposes

SO

If the initial licence is restricted in terms of usage, it may need to be “topped up”

Sync Licences - a brief history
All media now or hereafter known
Online Downloading
Online Streaming
Computer Games
DVD
Mobile Rights
Theatrical Exhibition
Non-theatrical exhibition
Broadcast on TV
Video
Music Publisher

The “synchronisation” licence traditionally grants all rights for all licensed uses
except
PRS, i.e.

SYNCHRONISATION
MECHANICAL


Record Label

The “master use” licence traditionally grants all rights for all licensed uses, i.e.

SYNCHRONISATION
DUBBING
PUBLIC PERFORMANCE COMMUNICATION TO THE PUBLIC

Synchronisation Licences
Issued to producer by the record label and the publisher
Synchronisation Licences
Q: What is actually being licensed?
A: More than just the sync
Synchronisation

Copying into the film soundtrack

(to include the right to use for the purposes required)


Copying

Distribution copies
Broadcast copies
Trailer copies
DVDs
Server copies
Intermediate copies
RAM copies?
Download copies


Public performance

Theatrical exhibition

Non-theatrial exhibition


Communication to the public

Broadcasting

Making available on demand

Other?

VOD services have difficulties with a “mixed bag” of audiovisual content in terms of rights
Current Synch Problems
Industry agreement is the Musicians Union/PACT Agreement effective 1 January 2016
Sets out rates for specific uses (e.g. incidental music, signature tunes, promo uses) or all media uses under the Combined Use Fee
The Combined Use Fee is not a complete buy-out (excludes, for example, use of footage as a music video) but does include soundtrack album use
Use of commercial music in TV programmes = re-use payment of £21 - £24 per 30 seconds - payable to the MU
Use of commercial music in films = re-use payment of Combined Use Fee to each musician - payable to the musician
Reduced rates for low budget films

Musicians' Union - Rules for A/V Producers
PRS Broadcast Blanket Licensing
(music publishing rights)
BBC

PRS & MCPS


ITV

PRS & MCPS
All other channels
PRS only
Production companies

MCPS (IPCL)
MUSICIANS' UNION
TV
ONLINE LICENSING
Online Licensing Overview
Online Licensing - VOD services
Linear internet radio (under IFPI webcasting or simulcasting agreement)
Catch up internet radio
Personalised internet radio
Interactive internet radio (pause and skip)
On demand TV programmes (limitations)
On demand video streaming (limitations)

The licences include the right to dub (i.e. copy) for the use in question and the right to communicate to the public by means of that use

PPL and VPL online licences
Online Music Licence (OML)
for on demand music services - rate ranges from 8.5% - 12% of revenue (subject to minima) depending on nature of service

General Entertainment Online Licence (GEOL) for VOD services
- 2.5% of revenue (subject to 3p per TV programme and 10p per film minima)

PRS for Music Online Licences

The 2005 EU Commission Recommendation on collective licensing broke up the blanket licence market
Universal has placed its Anglo-American repertoire with
DEAL at SACEM
, Sony/ATV and EMI are now with
SOLAR at GEMA
, BMG is with
ARESA at GEMA
and recently Kobalt acquired US Society
AMRA
Licensees now face split territory
and
split repertoire
and
split rights licensing
Possible aggregation for some single territory licences

Other Publishing Society
Online Licences
Cloud Services
Alexander has over 20 years' experience advising artists, record labels and publishers in the music business on the production and distribution of their rights. He also advises media and tech businesses, online platforms, film producers, broadcasters, computer games companies, video producers and others on the licensing of music rights, both in the UK and Europe. He is an expert on international collecting society matters.

He is rated in Chambers as having "
rare experience in the evolving digital media business
".

Alexander sits on the Executive Committee of the
International Association of Entertainment Lawyers
and is a member of the
British Literary and Artistic Copyright Association
and the
Society for Computers and Law
.

alexander.ross@wiggin.co.uk
+44 (0)1242 631 291

Dumb Lockers
Smart Lockers
Probably fall under the private copying exceptions in Europe, but obviously not in the UK
Almost certainly fall outside the private copy exceptions because sharing is permitted, and often a single master copy is used

Copyright in the musical work and lyrics

Owned initially by the author, or by joint authors as tenants in common
Usually licensed or assigned to a music publisher
The lyricist gets 50% of the copyright as a default share
A musical work is more than just the notes (
Sawkins v Hyperion
)
Lasts 70 years from the composer's death – and from the last of the composers to die if jointly written

What are these rights? (1)

Copyright in the recording

The owner is the producer, defined as
"the person by whom the arrangements necessary for the making of the sound recording . . .
are undertaken"
(CPDA s. 178)
It is a “signal” copyright: a sound recording is not copied unless the sounds themselves are re-recorded
Duration recently extended to 70 years
Considered to be a “neighbouring right” on the continent

What are these rights? (2)

Performers' rights (akin to copyright)

Exclusive rights of reproduction, distribution, rental and lending and making available
Same duration as the sound recording copyright
The right to equitable remuneration when a commercially published sound recording is played in public or communicated to the public, except on demand
Also a ‘neighbouring right’

What are these rights? (3)

Moral rights

Paternity right
Integrity right
False attribution right (not for performers)

Non-assignable, but can be (and usually are) waived
For performers group ID is sufficient
Very few decided cases on moral rights in musical works: George Michael 1993 injunction re Bad Boys Megamix – capable of being derogatory treatment

What are these rights? (4)

(Synchronisation, copying and broadcast)
(Synchronisation, copying and broadcast)
(copying and broadcast only)
(Synchronisation)

MCPS (PSLA)
(secondary sales)
PPL Broadcast Blanket Licensing
(sound recording rights)
All channels
Production companies
(synchronisation, copying and broadcast)
(secondary sales only)
PRS licenses copying and communication to the public - all content

PPL licenses copying and communication to the public - TV programmes only
means (under the CDPA)
ALEXANDER ROSS, Partner
N.B. No public performance right in sound recordings except by way of digital transmission
US Theatrical Exhibition
...no public performance royalties are payable
Assigns synch right in film music
Assigns score
Distribution
PRS US Motion Picture Licence
£
US Motion Picture Licence
It used to be like this:
Now, it's often like this:
Sound recordings
Musical compositions
All rights buyout
Subject to any applicable licences issued by PPL or equivalent
Subject only to the payment of PRS royalties
Subject to the rights (?) of the collecting societies (i.e. PRS and MCPS)
'Red Records'
the Record Label
'Magic Music'
the Music Publisher
'Channel Chill'
the Broadcaster
'Loveflix'
the Video on Demand Service
'Frantic Films'
the Film Producer
'Pete'
the Performer
PRS
Composer
Producer
US Cinema
UK Cinema
“The Composer agrees that the Producer shall have the right without further payment to exhibit the film in theatres in the USA……”

(inc MCPS)
Distribution
Full transcript