A performance review: is copyright doing its job in the music industry?

Yesterday, this Kat posted an overview of artist's arguments being heard at the economics of music streaming Inquiry by the UK Digital, Culture, Media and Sport Committee. There was a lot to say about equitable remuneration, transparency, copyright assignment returns, and playlisters. Turns out I'm not done... In this post, I want to reflect on the issues by giving copyright a performance review, is copyright doing its job? Is it fit for purpose in the context of music streaming?

Copyright's job description

In my forthcoming [lockdown] book, Copyright in the Music Industry, I spend the entire first chapter on why artists and songwriters should even care about copyright, and why it matters to music. The first answer [there is a long list of reasons] is in the point of copyright. 

Broadly speaking, the Anglo-American justification for copyright emphasises the economic role of copyright as a system that compensates creators for their work, which would otherwise be a freely accessible commodity with no market value, because it is easy to duplicate. So, copyright steps in to ensure that creators get paid for their work, which enables them to continue to create, and rightsholders can disseminate that creativity, knowledge and culture – thus benefiting society as a whole. 

So copyright is how the music industry makes money. But it is not just about the money and motivation, copyright also moonlights with what we call the related rights - performer's rights and moral rights - to give creators control over their work, including the right to be named as the creator.

Is copyright working in the music industry? 

So copyright's job description in the music industry is to encourage - by way of remuneration, control and recognition - the creation AND dissemination of music. 

As mentioned yesterday, music streaming accounts for more than half of the global music industry’s revenue in the UK, bringing in more than £1 billion in revenue with 114 billion music streams in the last year. The 3 major labels are reporting record highs in profits. So clearly, in its goal to encourage and reward the disseminating of music, copyright is doing a great job. 

However, the Ivors Academy reports that 8 out of 10 songwriters earn less than £200 a year from streaming. Nadine Shah's evidence at the Inquiry was that artists and songwriters cannot make their rent. Fiona Bevan, a songwriter for the likes of One Direction and Lewis Capaldi, received only £100 for co-writing a track on Kylie Minogue's number one album, Disco. So, in its duty to encourage and remunerate creators of music copyright is failing miserably. 

Copyright's Performance Evaluation

This is a fitting quote
from my podcast that will be
published Jan 2021
In conclusion, copyright is doing one part of its job - encouraging dissemination - very well, but failing in its role to remunerate creators. Luckily, copyright is not a natural phenomenon; it is human made – which means that in places where it is not working, it can be changed! As it should, copyright was not made to be static, it is constantly evolving to adapt to new technologies.

As mentioned in yesterday's post, the artists are arguing for equitable remuneration for when their work is performed via a stream. Equitable remuneration already applies to radio, but because of an exception under section 82CA(1) CDPA 1988, this does not apply to online streaming. The government could remove this exception, which would mean that equitable remuneration applies to streaming, this would capture streaming services as well as platforms such as YouTube... as such staffing up copyright with more hours for its co-workers, performer's rights. 

The call for evidence is still open, but closes today - Friday 11 December 2020.

A performance review: is copyright doing its job in the music industry? A performance review: is copyright doing its job in the music industry? Reviewed by Hayleigh Bosher on Friday, December 11, 2020 Rating: 5


  1. The fact that Fiona Bevan received only £ 100 for co-writing a track on Kylie Minogue's number one album, Disco comes from the fact that although the song she composed was certainly used in many shops, bars, cafes, malls, petrol stations, etc., the distributions made by the collective management organizations are based on archaic systems that take into account only the playlists of the big radio and television stations.
    This is although, in 2020, it is very easy to use reporting software or, even more simply, large networks of stores, supermarkets, malls and so on for many years using centralized music programming systems so that the playlist report would be very simple.

  2. Thank you as always for your thought provoking posts
    You point out a truth…“The 3 major labels are reporting record highs in profits. So clearly, in its goal to encourage and reward the disseminating of music, copyright is doing a great job”…………….how copyright is instrumental in working for a few grains of sand on the beach (by number) so to speak of all practitioners………… and working terribly for the bulk of practitioners
    There is a view with copyright that looks can be deceiving when reviewing the effectiveness of copyright doing its job in the music industry for the following reasons:
    1. By remaining stuck in the “reproduction/performing right” paradigm including derivatives thereof, copyright has not moved/amended/evolved/kept step with the times – When You Tube on the table and openly does not make money from rights under copyright or the exercise thereof….but does make money from advertising, data and text miners……..and declares so, the question must be asked of copyright…………where are the new rights (under different copyrights) such as “data” rights, “advertising” rights, “text and data mining” rights……………….in other words expanding the rights under copyright footprint to address rights embedded in the consumer experience as opposed to being separate from it, rights that should be included in the rights under different copyrights.. By not doing evolving, copyright it can be argued has been constraining the utility, application and income generation opportunity of copyright for the past 15 years at least.
    2. By copyright authorship and ownership metadata being under exclusively private control, copyright has become…over decades………..copy”wrong”, with the current iniquitous equity landscape being a planned and maintained status quo. Copyright might well take a glance at the progression (and value proposition) of trademarks and patents under proper regulatory oversight of State scrutiny. Placing copyright authorship and ownership metadata under exclusively private control without State oversight rather than appealing to the entrepreneur appeals to the robber baron...the brigand, causing great loss to both the State and all participants. Copyright does itself no favours operating in the penumbra.
    3. Expanding the previous point, copyright is in very serious danger of being (rightly………sadly and unfortunately) named as a prime vehicle for large scale and diversified money laundering and engaging in institutionalised fraud – there is real evidence of this (e.g. 1) the overcharging licensees by making them pay for the public domain and 2) The wide scale usage of interested parties who are neither natural or juristic parties to claims shares in works and receive royalties). It is apparent that unless this malaise is confronted very soon it has the potential to indelibly impact the value and operability of copyright in the future – this cuts across the copyright spectrum.
    In conclusion notwithstanding the above points there is real reason to be highly concerned about not just the manner that copyright is doing its job….but that it is doing its job at all where it actually matters. Of course there are contrarian views….likely a non-coherent commentary landscape

  3. Regarding the equitable remuneration for streaming, as I said in the previous article, if it is about making available, it cannot be about limiting the exclusive right of the performer to authorize or prohibit the use of his registered (fixed) interpretation.
    If we talk about streaming as a program similar to radio (or television) and the user does not have the opportunity to choose what he listens to, when he listens and where, then it is public communication. Even in this situation, if the right holders who are communicated have taken into account exactly the listeners of that platform when they authorized the initial communication, according to the jurisprudence of the CJEU, there is no communication to the public.(
    But if I can choose what I listen to (or see), in the place and especially at the time I choose, it is not public communication.


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