Memorandum submitted by the British Academy
of Composers and Songwriters
Composers are also citizens and as such their
rights and interests must be both respected and protected.
In the case of music for the communications
and broadcast industries, the creator is almost always an individual
freelance professional. Commissioners, on the other hand, are
often giant media corporations. Even when SMEs are involved in
the form of independent production companies, they will ultimately
be providing content for larger companies. Therefore, any new
legislation in these areas must acknowledge that the marketplace
is inherently unequal in terms of power and influence and should
contain adequate safeguards to ensure fair business practices
and respect for the rights of the individual creator.
Excellence will flourish when the creator is
placed in an environment where he or she can do the job. This
may mean adequate funding for the work required, or simply a sense
of fair treatment by the commissioner. A composer whose contribution
is valued will produce better work. This is true of all contributors,
be they writers, directors or technicians. For the consumer, the
proper respect for these roles will be reflected in higher quality
The BBC occupies a special place in UK broadcasting.
It has a public service remit, while at the same time being the
leading player in the market. We feel that the BBC has struggled
to establish a clear view of itself during the transition from
a protected Reithian world to the competitive and commercial broadcasting
environment that exists today. As such, the BBC requires a strong
lead from Government.
The BBC has and should continue to set the standards
in broadcasting, not just in terms of programme making, but also
as a model for fair business practice; indeed, its funding via
the licence fee places an obligation upon the Corporation to do
Due to what it would regard as "commercial
realism", the independent sector has for many years taken
advantage of the vulnerability of freelance composers to abuse
rights granted to creators in the Copyright, Designs and Patents
Act 1988. The Government should not put a level of commercial
pressure on the BBC that risks it behaving in a similar way. Part
of its public service responsibility should be to act like a beacon
of good practice in a notoriously unethical industry.
We believe the presence of a well-funded and
healthy public service broadcaster is highly desirable in pluralistic
and competitive communications environment and we wholly support
the role and public funding of the BBC.
We have already referred to the temptation for
the abuse of individual creators due to the inherent inequality
of the marketplace. This fact will not change, but creators can
be protected if any new legislation recognises the dangers and
endeavours to strengthen safeguards, rather than throwing open
the doors by advancing further down the road of deregulation.
Cross-media ownership creates further risks
for the fair treatment of creators. For example, if a single corporation
owns the commissioning body (the broadcasting company) as well
as the rights to the content it transmits (the publishing company),
the composer is placed in a weak negotiating position. In the
past, publishers who had no link to the commissioner, acted on
behalf of their "client" (the composer) to both protect
and exploit the work. Owning rights to television and film music
has become little more than a risk-free income stream, with little
"publishing", in the accepted sense, taking place at
all. The existence of giant corporations with an interest in all
aspects of the process leads inevitably to music publishing becoming
less of a professional service and more simply a method of generating
revenue. This is not in the interests of the composer, the value
of those rights is explicitly acknowledged in the UK copyright
It can easily become anti-competitive, where
only certain composers (ie, those willing to enter into a publishing
agreement with the broadcaster/publisher) are "rewarded"
with commissions. This is against the interests of not only the
wider creative community, but also the consumer/viewer, who may,
unbeknown to him, have been denied hearing the work of the best
composer for the programme or film.
Current "fair use" definitions are
comparatively thorough and we do not advocate change. Intellectual
property issues involve ownership, respect, control of one's creative
output and the opportunity for fair remuneration. We refute any
suggestion that the defence of IP rights amounts to a restriction
on the freedom of the consumer, in the same way that no-one would
argue a price ticket limits the right of the consumer to own a
pair of shoes.
We reject the idea that because IP is not a
physical manifestation, it is "free". Increased ease
of access, particularly with the expansion of the internet, has
let to this view being frequently expressed. It is our belief
that the rights inherent in the creative material have not been
changed in any way by the development of new forms of distribution.
Just as creators are also consumers, consumers
are also creators. The law should protect the interests of all
creators and encourage an attitude of public respect, regardless
of whether the creator is a professional.
It is entirely proper that the law serves J
K Rowling in exactly the same way it does a four-year-old child
who paints a picture in school.
5 December 2001