Memorandum submitted by the Musician's
Union
INTRODUCTION
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.
CMS COMMITTEE ISSUES
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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