The UK Copyright (Rights and Remuneration of Musicians, Etc.) Bill

http://ipkitten.blogspot.com/2021/11/the-uk-copyright-rights-and.html

The Copyright (Rights and Remuneration of Musicians, Etc.) Bill has now been published, proposing new laws for equitable remuneration for streaming, contract adjustment, right of revocation and transparency.

Background

Readers may have followed the IPKat reports on the UK DCMS Select Committee Streaming Inquiry [here], which took place in October 2020. After reviewing more than 300 pieces of evidence, the Select Committee published its recommendations in July 2021. The Government response, published in September 2021, acknowledged a concern that the UK regulatory framework has not kept pace with the changes brought about by streaming. 

At the same time, one of the DCMS Select Committee members, Kevin Brennan MP, sponsored a Private Members’ Bill, which proposes to introduce legislation giving effect to some of the recommendations made by the Committee, namely equitable remuneration for streaming, contract adjustment, right of revocation and transparency.

Equitable remuneration for streaming: Who is entitled and who pays?

Using similar wording as the equitable remuneration (ER) already provided for under section 93B of the Copyright, Designs and Patents Act 1988, the Bill proposes to amend the CDPA and introduce an equitable remuneration for performers, where they have transferred their the making available right, concerning a sound recording, to the producer of the sound recording. The right to ER cannot be assigned, except to be administered by a collecting society, or via testamentary disposition.

The producer, for the purposes of the CDPA, is the person who makes the arrangements necessary for the making of the sound recording (section 178); usually the record label if the performer has a recording contract. This means that where a performer has transferred their making available rights, for instance in the recording contract, they are entitled to equitable remuneration. 

An important distinction is made by the requirement that the making available right be transferred to the producer. The impact of this is that ER does not apply to performers who have not transferred their making available right, thereby excluding self-releasing artists. ER would not be beneficial to self-releasing artists because, where they already receive 100% of their royalties, paying an administrative fee and rerouting some of that income through a collecting society would mean reduced income at a slower rate of payment for them. 

ER is payable by the person to whom the right was transferred, or any successor in title of that person. Therefore, where performers have transferred their making available to their record company, the record company pays the ER. Where a self-releasing performer hires a session musician, and the session musician transfers their making available right to the self-releasing performer, the session musician is then entitled to claim ER from the self-releasing performer. How much is paid can be negotiated by the performer and producer, or the Copyright Tribunal where agreement is not met. In practice, the split and percentage of ER will no doubt be a matter of negotiation.

Contract adjustment and right of revocation

The Bill sets out a right for performers and composers of musical works to receive additional, fair and reasonable remuneration for their works, where their arrangement provides them with a disproportionately low level of remuneration, compared to the overall revenue generated from their work. The remuneration is paid by the person exploiting the work.
The Bill also provides a right for performers and composers who have transferred their rights to revoke the transfer of their rights after 20 years. The right is not automatic, notice must be provided within two years. The explanatory notes to the Bill explain that the rationale for this clause is to allow creators to renegotiate unfavourable contracts entered into, due to inequality in bargaining power, and to allow creators to be released from agreements where their work is not being exploited. 

Transparency 

This clause sets out a right for performers and authors of musical works (or literary works accompanying a musical work) to receive “up to date, comprehensible, relevant and complete information on the exploitation of such work or works.” This will enable music creators to allow composers to determine whether the remuneration they are receiving is accurate or fair, or whether they might seek to renegotiate under the Bill’s contract adjustment rights.

What happens next?

The Bill will receive its second reading in Parliament on 3rd December 2021. The Bill is supported by cross-party MPs and creator representative organisations such as the Musician’s Union and the Ivor’s Academy. Graham Davies, CEO of the Ivors Academy, said: “On behalf of songwriters and composers our thanks go to Kevin Brennan and MPs from all parties who understand that Britain’s place as a cultural powerhouse rests on investing in people that actually make music. The growth of the streaming market has diverted too much wealth to multinational record labels at the expense of music makers. However, the trade body for recording companies (BPI) and the trade body for independent record companies (AIM), both oppose the Bill. BPI have argued that the Bill “completely misunderstands today’s music business, and the value that labels provide in finding and nurturing talent.”

In the meantime, the UK Intellectual Property Office is commissioning further research into equitable remuneration, contract adjustment and right of revocation. 

On the 9th December, Kevin Brennan, Tom Gray founder of the #BrokenRecord campaign and this Kat will be speaking about the streaming inquiry and the Bill at the British Literary and Artistic Copyright Association (BLACA) the winter event. 

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