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Johan Johansson to be culled from Spotify after ‘making available’ test case win

By | Published on Thursday 24 September 2015

Johan Johansson

Another interesting development in the world of performer rights today with the news that Johan Johansson – perhaps best known for his songwriting and drumming with Swedish punk band KSMB – has won in a legal battle with record label MNW over the distribution of his recordings on Spotify.

The dispute is seemingly another test case on the so called making available right and the performer controls provided by copyright law. MNW owns the copyright in the sound recordings at the heart of this case, but Johansson argues that this doesn’t mean the label has the automatic right to provide said tracks to streaming services like Spotify.

Under European law, artists are provided with certain controls over recordings on which they appear even when – and indeed especially when – they do not own the copyright in said recordings.

It means that a label, as the usual copyright owner, needs to get permission from the artist to exploit a recording, whether it is copying or distributing or renting out or adapting or performing or communicating the track. These permissions will customarily be provided under a featured artist’s record deal and any session musician’s individual contracts.

However, in the 1990s both copyright owners and recording artists were provided with a new copyright control called ‘making available’, which was designed to ensure that the music industry could control the distribution of its content online. Copyright law can be rather vague on when, exactly, the making available right is exploited – as opposed, say, to the traditional ‘communication right’ that covers traditional broadcast and some online radio and TV services – but the record industry says that making available is in play with both downloads and on-demand streaming.

Here is the point: both labels and artists were given the making available control in the 1990s. Which has posed the question, do labels need to go to every artist whose contract pre-dated that development and ask for specific permission to exploit the making available control, or can they just assume that permission was provided by existing record contracts, which possibly had vague clauses talking about “all and any performer controls”? If the labels did need new permission from artists, that would provide an opportunity for said artists to negotiate better terms on digital income.

Most labels did not go and get that specific new permission, insisting they didn’t need to. But a number of heritage artists have cried foul on this issue, with the first key dispute to get to court involving Finnish band Hurriganes earlier this year. They won legal action on the making available issue against Universal, though in that case the actual contract being disputed had been lost, meaning there were other elements at play in the judgement.

But now, according to Swedish news site ETC, Johansson has also scored a win in his case against MNW in a district court ruling. Whereas the Hurriganes case focused on iTunes, this one dealt with streaming services, and mainly Spotify. The immediate result of the ruling will likely be MNW having to remove recordings featuring Johansson from the streaming platform, though what the musician wants is for the label to negotiate new terms to exploit his making available control.

We are still to work out the specifics of this new ruling and, crucially, whether it sets a precedent in Sweden or beyond. But Johansson, who was backed by the Swedish musicians union on this, says he pursued the case for the benefit of the wider music community, so he’ll be hoping his apparent win will have a much bigger impact across the record industry. We’ll have to wait and see if it does.