Songwriters are not going to win the battle of the Internet

23 January 2012

by Mark Holden

In 2011, The Age published an article I wrote that stated: "It is time to create a new intellectual property right and instead of the 20th century legal construct of 'copyright', call it 'creationright'." Let's face it, the concept of property as it relates to the online universe is passé.

Now the actions of Anonymous to disable whole US Government and other sites in reaction to the Megupload arrests in NZ and the combined firepower of Wikipedia and Google et al have stalled the passage in the US Congress of the SOPA and PIPA bills that the music and film businesses supported to control online piracy. It's become a free Internet issue to the point where, at the time of writing, it seems the Bills may be withdrawn before any vote. Like the best PR conjurers, Google and Anonymous have succeeded in redirecting the focus from music and other creators' legitimate rights to protect our intellectual property - our songs, our music, our art, our minds work to one, all encompassing 'freedom of the Internet' issue.

Songwriters are not going to win the battle of the Internet. Music is free in the digital domain, even though all the IP providers and mobile phone providers and broadband providers all around the world are raking in billions of dollars, Euros and yuan every week from every one of us by using, in part, our copyrighted material.

The concept of a download in the era of cloud lockers and streaming is already obsolete - the download will be the eight track cartridge player of this generation.

Again from The Age piece: "In 1969, a fee representing as much as one per cent of a radio station's gross annual revenue was imposed to cover the use of artists' music. But while any other supplier has been free to adjust prices, artists' radio copyright rates have been capped for more than four decades. In the 1970s and '80s, as copying on to blank tapes and blank CDs threatened to kill the music business, the idea of a blank-tape levy was introduced. Now we see the Internet as the ultimate blank tape."

Further complicating the issue are the streaming services, such as Spotify, which bypass the need to even download a copy. Whole libraries of music are now accessible for anyone to stream on demand via multiple platforms; they can flow from your computer to your mobile without you ever in fact copying anything. Labels such as Century Media in the US, where Spotify has just become available, are discovering the income from the streams is both minimal (one-third of one cent per stream is divided between record company, artist, publisher and songwriter) and it directly reduces the pull factor for either physical or downloaded sales.

Streaming may well be the answer for the consumer and the providers but it will never deliver enough to the creators at the end of the financial chain.

Creationright would enable creators to profit from the various uses of their ideas online by establishing a registration and licensing system. Under this system, creators would be entitled to a fair reward for the use of their ideas online. Creators would license their material to an organisation similar to say, Creative Commons, which would then provide a blanket licence of that film, television, art, music and software material online for non-commercial purposes such as personal or educational use. Providers would pay a percentage levy, and the distributions to the creators would be managed by a non-profit organisation in much the same way as the Australian Performing Rights Association currently manages royalty payments to songwriters. The Copyright Act, however, would continue to operate for the use of those ideas that are fixed into things like films and books.

We need to build a creators' fee into the financial chain - into your mobile bill and your broadband bill. That's the only way creators are going to get paid from the Internet - do you think radio would pay for airplay if they could avoid it? Hell no. They continue to resist any change to the share they pay, which was statutorily established in 1969.

And while I have your brain - its time to re-examine the amount of digital income songwriters receive. In the old world of delivering music via a fixed thing - the vinyl disc or compact disc - there was some logic to the mechanical rates favouring the record manufacturer; usually the record company. Their investment in the means of production (a factory) and the distribution, via trucks to shops spread out all over the country, generally outweighed that made by the publisher and songwriter. That model is dead and so should the inequitable split between songwriter/publisher and recording artist/recording company as it relates to digital income.

The statutory rate for mechanicals on our songs is only 6.25% of the retail selling price. Apple/the digital distributor and the artist/label get the rest. It's totally out of whack in the digital age. In addition, there is multiple handling of the income before it gets to the songwriter - Apple takes a huge whack, then the collecting society, then the publisher before it's divided by the number of writers. It ends up only a few cents per Itunes download gets to the songwriter, out of $1.69. Apra/Amcos should be leading the charge, along with writers and publishers to the Commonwealth Attorney-General to have the rate changed, as it is clearly inequitable. Songwriters/publishers should be splitting the digital income 50/50 with the artist/record company. Ampal, Apra and all the publishers should be agitating for this, and the creation right, to support the best interests of next generation's songwriters and publishers.

This way, even Anonymous would be contributing to songwriters and creators each time its crew paid their broadband and mobile bills. Wouldn't that be sweet?

The Age article