A ten year long legal battle between Irish collecting societies PPI and RAAP finally reached Ireland’s High Court last week, with the two sides each setting out their core arguments, and accusing the other of having shoddy data, which is always a problem when it comes to collective licensing.
One data system failed to identify famous Irish artists like The Chieftains, The Boomtown Rats and The Saw Doctors, it was claimed, while another listed ABBA’s Agnetha Fältskog as a backing vocalist on Daniel O’Donnell’s 2011 recording of ‘The Boys From Killybegs’. Which is an entertaining data error, but would have been an even more entertaining studio collaboration had it occurred.
The record industry’s collecting societies issue licences and collect money whenever recorded music is broadcast and played in public. Under copyright law, in those scenarios, both rightsholders and performers are due payment, with performers usually getting 50% of the money via their collecting societies. The performer payments are commonly referred to as ‘performer equitable remuneration’, or performer ER.
In the UK, a single collecting society - PPL - represents both rightsholders and performers. But in some countries, like Ireland, there are two societies: one for rightsholders, traditionally labels but also self-releasing artists, and one for all performers, including session musicians. In Ireland rightsholders are represented by PPI and performers by RAAP.
The two Irish societies have been in a long-running dispute about how much of the money should be allocated to performers, and how those payments should be managed - a dispute that has now been going on for more than a decade.
In the Dublin courts last week, legal reps for both rights organisations accused the other of creating data issues that stop performers getting paid. According to the Irish Independent, RAAP’s lawyer Andrew Fitzpatrick explained how - in 2016 - PPI tried to circumvent his client by appointing PPL in the UK to distribute Irish performer payments.
As a result, he claimed, “remuneration was withheld from some Irish acts”, including The Chieftains, The Boomtown Rats, The Saw Doctors, “and even Joe Dolan and Daniel O’Donnell”, because the PPL database failed to match those artists to recordings on which they perform.
But in response, PPI’s lawyer Paul Gallagher claimed it was “plainly wrong” to suggest PPL’s database hadn’t recognised those famous Irish artists, before adding that - in fact - it was RAAP’s database that contained “extraordinary and obvious errors”. Indeed, those database issues, he went on, were one of the reasons why PPI decided to start working with PPL on performer payments.
Honing in on those alleged “extraordinary and obvious errors”, Gallagher came to court with two ABBA-themed errors to share, claiming that on one ABBA track RAAP’s database missed off Björn Ulvaeus as a performer entirely, but then elsewhere in the database there was that 2011 Daniel O’Donnell record which listed ABBA’s Agnetha Fältskog as a backing vocalist.
In countries where there are different collecting societies for recording rightsholders and performers, there is usually joined-up licensing, so each licensee only needs to get a single licence to cover all recordings.
Either the rightsholder society issues the licences to broadcasters and businesses playing music in public, and then shares the money with the performer society, or a separate entity actually issues the licences and then splits the money between the rightsholder society and the performer society.
In Ireland, PPI traditionally collected the money and then passed the performer share to RAAP. During opening statements last week, Fitzpatrick said that, from 2002 to 2012, PPI would pay 50% of the money it collected over to RAAP so it could pay the performers their share.
However, from 2013 things started to change, with PPI applying deductions that meant RAAP got less than 50% of the money. That included “inflated” administration fees and a 15% deduction from broadcast income to cover ‘dubbing’, which refers to when broadcasters make copies of recordings prior to broadcast. Technically performer ER is only due on the broadcasting, not any pre-broadcast copying.
Then there was the dispute over when non-Irish performers were due payment for their recordings being broadcast or played in Ireland. That sparked a high-profile side-show within the European Union courts which got a lot more attention within the wider music industry, and is one of the reasons why RAAP's litigation, first filed in 2016, has taken so long to get to trial.
The EU ruling - which became known as the RAAP ruling - basically favoured the performer society in the Irish dispute. However, it also set a legal precedent that has proven controversial across Europe, with various label and performer groups elsewhere within the European Union urging EU lawmakers to amend European copyright law to basically reverse that precedent.
Meanwhile, back in Dublin, Fitzpatrick told the court last week that - by introducing these extra complexities and deductions from 2012 onwards - PPI had “unilaterally tried to change the deal” between the two collecting societies.
PPI, he added, claimed the deductions were allowed under its 2002 agreement with RAAP, but had employed the simpler 50/50 split for the first ten years for “operational reasons”
That claim, he told the court, is simply not credible. Meanwhile, PPI's decision to partner with PPL in 2016, after RAAP had begun its legal proceedings, constituted the label society “running roughshod” over the rights of Irish performers to appoint their own collecting society.
And as far as RAAP is concerned, its members didn’t want to allow PPL, which - like PPI - has the major labels as key members, to represent their ER payments.
The RAAP v PPI trial continues in court this week and is expected to run for eight weeks in total.