Select Committee on Culture, Media and Sport Written Evidence

Memorandum submitted by the Musician's Union


  1.  The Musicians' Union is the only UK trade union representing professional musicians working in all genres of music. Its 30,000 plus members include performers, composers and arrangers.

  2.  The development of digital technologies and new ways of delivering and receiving music has provided some exciting opportunites for our members. Performers need no longer be reliant on producers in order to market and sell their music to the public; they can make it available themselves with the minimum of cost. However, the new technologies also provide threats which could undermine the effective operation of the new business models that are currently being developed.


  3.  The impact upon creative industries of recent and future developments in digital conveyance and media technologies.

  In the area of sound recordings, we see a noticeable move away from material product (ie CDs) in the direction of downloads to iPods, MP3 players and other digital carriers. However, this move is slower than some commentators imagined that it would be a few years ago. The ability to combine visual images with recorded music has proved extremely popular with a significant proportion of the purchasing public. This area will inevitably grow and will, we feel, highlight significant problems associated with performer's intellectual property rights. The current rights regime in respect of audio-visual fixations is set at a lower level than the regime governing audio fixations. In order to achieve the highest level of protection, it may need the definition of a phonogram to be re-examined by the World Intellectual Property Organisation (WIPO). Any new definition must encompass carriers of music coupled with visual images. In addition the rights afforded to performers by the WIPO Performances and Phonograms Treaty must all be extended to audio-visual fixations.

  4.  The extension of consumer choice that is now available through music down-load sites has speeded up the demise of the "single" and could spell the end of the "album" as we know it. Consumers can readily pick and choose the music that they want and no longer have to buy an album containing anything up to 20 tracks. The industry must adapt to this extension of consumer choice.

  5.  The payment per track per download (79p on iTunes) does not result in significant income finding its way to the performer or composers. This is not so much due to the price of the download, rather it is the division of the fee between the contributors. After Apple, the credit card company, the record company and the publisher have covered their costs and taken their profit, as little as 4p per track can find its way to the original creators. A more equitable business model must be devised that recognises the contribution of the creators.

  6.  Music has proved to be an ideal product for commercial exploitation by digital means. Coupled with visual images a three minute track is an ideal product to be streamed to the next generation of mobile phones.

  7.  The effects upon the various creative industries of unauthorised reproduction and dissemination of creative content, particularly using new technology; and what steps can or should be taken—using new technology, statutory protection or other means—to protect creators.

  8.  The most serious threat to the music industry is on-line piracy. Performers and composers support the efforts of the record industry in its attempts to overcome this problem as it impacts on the livelihood of all. However, performers believe that an overtly "heavy handed" approach by the record industry may alienate the public and could exacerbate the problem.

  9.  The recent US Supreme Court decision in the Grokster case has ensured that ISPs will cooperate in the application of effective Digital Rights Management (DRM) in order to protect the product. Whether the application of DRM and Technical Protection Measures (TPM) will ultimately succeed is debatable. So far all methods have been "hacked" into and many performers are sceptical about the industry's ability to stem this tide.

  10.  The regulatory framework provided by UK Copyright and Related Rights legislation provides broad protection. However, Performer's rights must be enhanced and the requirement for them to assert their moral rights removed. There must also be more emphasis placed on consistency of enforcement. The Government "respect" agenda should include an encouragement of the respect for the intellectual property rights of all creators. A clear message stating that Copyright is good for the public must be disseminated by government. This should explain that society must ensure that creators are paid and continue to provide entertainment and intellectual stimulation for an appreciative public.

  11.  Here we must emphasise once more that performers' rights must be set at an equal level with authors' rights. Until we have full audio-visual protection the regulatory framework will never fully protect performers.

  12.  The extent to which a regulatory environment should be applied to creative content accessed using non-traditional media.

  13.  As with the previous issue, existing copyright legislation is in place to protect original creations and performances whatever the delivery platform. However, it remains inadequate in its protection of performers.

  14.  An aspect that should not be neglected regarding digital and analogue platforms is the effectiveness of moral rights. In addition to the totally unnecessary statutory assertion of moral rights, all too often producers insist, in contracts, that they are waived. We suspect that the recent introduction of moral rights for performers will be as effectively negated as authors moral rights have proved to be. The extension of moral rights to authors and performers confirm that composition and performance are creative acts. They are important, symbolic, non-economic rights which recognise that creation and interpretation embodies "the soul and spirit" of the author and performer. It is the nearest thing that we have to the French concept of "Droit d'Auteur".

  15.  Where the balance should lie between the rights of creators and the expectations of consumers in the context of the BBC's Creative Archive and other developments.

  16. Whilst we understand that a publicly funded BBC has obligations to the licence fee payer and is equipped to utilise the opportunities presented by the new technologies, we are concerned that initiatives such as the Creative Archive (and the recent Radio 3 Beethoven downloads) send mixed messages to the consumer. An invitation to "find it—rip it—burn it—share it and use it" is an invitation to piracy. To be fair the BBC has qualified its "soundbite" Creative Archive slogan with positive messages about the importance of respect for Copyright. However, other commentators and organisations who promote similar concepts such as Creative Commons and the Adelphi Charter only undermine the value of Copyright and the status of creators.

  17.  In conclusion we would like to refer to the debate which is taking place regarding a global licence as a method of generating income from peer-to-peer file transfers—both legal and illegal. Many performers feel that the only way that they can benefit from this type of use is through such licensing or the extension of existing (mainly European) private copy levies. As the CMS Committee will know the French Parliament has voted to legalise downloading through the application of a global licence, but not uploading. How such a licence would operate, on a worldwide basis, is problematic and there is a great danger that income realised by such a licence will be very low indeed, far less than the commercial value of the music. However, the support shown by performers for this type of levy which, in effect, legalises peer-to-peer transfers, demonstrates a frustration on their part with the interpretation of the "making available" right. Record companies have, by and large, absorbed this new exclusive right into already existing contracts and agreements. Consequently the performer community sees little or no benefit from this particular use of the new technologies. This encourages the feeling, amongst many performers, that on-line music should be used for promotional purposes only and "given" to the fans. There is no doubt that it certainly helps to sell tickets for live performances, still the most important source of income for the vast majority of performers.

  18.  The UNESCO "Status of the Artist" 1997 recommendations state that the application of new technologies should not come between the artists and their audiences. An example of how this might occur is the use of virtual orchestra devices to replace musicians, for purely economic reasons. This short changes the public and diminishes the artistic and creative input of composers and musicians. This aspect of new technology demonstrates that on-line delivery is not the only one way that new technologies can be utilised within the creative industries. New technologies must and should be used to enhance the audiences experience but not to undermine the position of creative people within our society.

  19.  The Musicians' Union thanks the CMS Select Committee for extending the deadline by which submissions should be received. This has given us an opportunity to fully respond. The MU would be pleased to attend a meeting of the Committee in order to expand on this submission.

22 February 2006

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