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SoundExchange wants remuneration rights of US performers in UK put in post-Brexit trade deal

By | Published on Thursday 25 June 2020


US collecting society SoundExchange has teamed up with a plethora of American music industry organisations to launch a campaign called Fair Trade Of Music, which aims to tackle a moderately tedious and slightly complicated copyright law technicality via the post-Brexit free trade agreement that is now being negotiated between those pesky United States Of America and this not really United Kingdom Of Great Britain and Northern Ireland.

Shall we deal with the moderately tedious and slightly complicated copyright law technicality first? Yes, let’s. Though as we do, remember this: SoundExchange reckons that this moderately tedious and slightly complicated copyright law technicality costs American music-makers millions of dollars a year.

And that’s just in the UK. Because this moderately tedious and slightly complicated copyright law technicality occurs elsewhere in the world too and, after some rigorous tapping on a calculator, SoundExchange’s maths team declared that worldwide this moderately tedious and slightly complicated copyright law technicality costs American music-makers $330 million a year. Which is quite a lot. Though, thinking about it, that would be a math team, wouldn’t it?

Anyway, time for the moderately tedious and slightly complicated copyright law technicality. Are you ready? OK, well, copyright law allows copyright owners to control how their content is used in a number of different ways. That usually includes the performing and communicating of their work. The music industry usually refers to the performance and communication elements of the copyright as the performing rights or the neighbouring rights.

Because of this element of the copyright, radio stations, TV channels and any business that plays recorded music in a public space needs to get licences from and pay royalties to the music industry.

Twice actually, because they are using both recordings and songs. It’s the recording bit we are interested in here. In most countries copyright law says that when recordings are used in these ways both copyright owners and performers must get paid. These licences are issued and royalties managed by the record industry’s collecting societies. So in the UK that is PPL.

Now, the record industry has separate collecting societies in each country. Those societies generally only issue licences in their home markets. All the collecting societies around the world are then joined up through reciprocal agreements.

So if a label or performer only wants to directly join their local collecting society, they can still be part of all the other blanket licences issued by societies elsewhere in the world, earning royalties whenever their recordings are broadcast or played in other countries. This set up means that rights and royalties constantly flow around the network of collecting societies across the globe.

So that’s fun, isn’t it? Though, FYI, we haven’t got to the moderately tedious and slightly complicated copyright law technicality yet.

Here it is. The exact rights provided to copyright owners – and/or performers – by copyright law sometimes vary from country to country. For example, in the US, copyright law does not provide a general performing right for sound recordings, only a digital performing right. So in the US, only online and satellite broadcasters need to get a licence and pay royalties, not AM/FM radio stations or pubs, clubs, bars, cafes and so on.

This creates an interesting question. Because of the limitations of US copyright law, British labels and performers receive no royalties when their recordings are played on the radio or in public in America. So what should happen when the recordings of American labels and performers are played on the radio or in public in the UK? Should they get that money or not?

The answer to that question depends on international treaties and – most importantly – how each country has chosen to interpret those treaties. When it comes to performer payments, the UK applies what is sometimes known as the ‘reciprocity rule’ or the ‘mirror test’. Which means non-UK performers are only due payment in circumstances where UK performers get paid in those non-UK performers’ home country.

So, with America, UK performers only earn from online and satellite radio in the US, which means US performers only earn here from the same uses of music here. Therefore they are not due payment from AM/FM radio and public performance (oh, unless a recording was made in the UK, which is an extra bonus copyright technicality for you, provided at no extra cost).

Anyway, SoundExchange, the US record industry’s collecting society, reckons that’s not fair. Nor a correct interpretation of international treaties. And it wants things to change so more international royalties will flow in from other countries for its members.

And with that in mind, earlier this year it wrote to the US Trade Representative requesting that it fix this issue through trade talks, in particular in relation to the UK, Australia, Canada, France, Japan and the Netherlands. In some of those countries (not the UK), the ‘reciprocity rule’ negatively impacts on labels as well as performers.

Now the society has teamed up with the American Association Of Independent Music, American Federation Of Musicians, Future Of Music Coalition, Gospel Music Association, Music Artists Coalition, Music Managers Forum US, Recording Academy, SAG-AFTRA and musicFIRST to try to force a change of policy on this issue in the UK by putting something into that post-Brexit trade deal. That something is referred to as “national treatment provisions” by fans of moderately tedious and slightly complicated copyright law technicalities.

Launching the Fair Trade Of Music campaign, SoundExchange chief Michael Huppe said: “Equal treatment is fundamental to international law, and this principle should extend to all music creators, no matter where they are from, who deserve to be paid fairly for their work. Our goal is to end discrimination in the global trade of music”.

“That should be a priority for our entire industry”, he added, “including recording artists and labels on both sides of the Atlantic and around the world. The ongoing negotiations between the US and UK present an opportunity to make significant progress toward that goal”.

SoundExchange also confirmed that it had sent another letter to the US Trade Representative on this issue, but this time also signed by all those other trade organisations too.

It stated: “Last week, the US organisations sent a joint letter to US Trade Representative Robert E Lighthizer urging him to make full national treatment for sound recordings a priority in future trade agreements, particularly in the ongoing US-UK negotiations. In this letter, the music industry groups pledged to work with Ambassador Lighthizer to achieve full national treatment for American music creators in all future trade agreements”.

And, the society also added, this is an issue where progress is being slowly made around the world, which is why the current post-Brexit trade talks should be used to address the problem in the UK. “US music creators are gaining fair trade protection as national treatment provisions become more common in international trade agreements”, it said.

“In February, SoundExchange filed comments asking the US Trade Representative to take action against countries that refuse to give American recording artists and labels full national treatment. In a report released in April, the USTR recognised the importance of securing national treatment for US and other rights holders. In March, the government of Canada fully implemented the US-Mexico-Canada Agreement, which grants national treatment protection to US music creators in Canada”.

So there you go, a moderately tedious and slightly complicated copyright law technicality. Hey America, we’ll give you national treatment when it comes to the equitable remuneration rights of your performers if you keep your hands off our NHS and throw all your chlorinated chicken into the Atlantic. Do we have a deal? Simple. They should put me in charge of trade talks.