n Barr, Kenneth W. (2016) Music copyright in the digital age: creators, commerce and copyright- an empirical study of the UK music copyright industries. PhD thesis. http://theses.gla.ac.uk/7752/ Copyright and moral rights for this work are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] Music Copyright in the Digital Age Creators, Commerce and Copyright An Empirical Study of the UK Music Copyright Industries Kenneth W. Barr MA (Hons.), M. Litt. Submitted in fulfilment of the requirements for the Degree of Doctor of Philosophy School of Culture and Creative Arts College of Arts University of Glasgow April 2016 ABSTRACT Copyright markets, it is said, are ‘winner takes all’ markets favouring the interests of corporate investors over the interests of primary creators. However, little is known about popular music creators’ ‘lived experience’ of copyright. This thesis interrogates key aspects of copyright transactions between creators and investors operating in the UK music industries using analysis of various copyright related documents and semi-structured interviews with creators and investors. The research found considerable variety in the types of ‘deal’ creators enter into and considerable divergence in the potential rewards. It was observed that new-entrant creators have little comprehension of the basic tenets of copyright, but with experience they become more ‘copyright aware’. Documentary and interview evidence reveals creators routinely assign copyright to third party investors for the full term of copyright in sound recordings: the justification for this is questionable. An almost inevitable consequence of this asymmetry of understanding of copyright and asymmetry of bargaining power is that creators become alienated from their copyright works. The empirical evidence presented here supports historic and contemporary calls for a statutory mechanism limiting the maximum copyright assignment period to ten-years. 2 TABLE OF CONTENTS ABSTRACT 2 TABLE OF CONTENTS 3 LIST OF TABLES 7 LIST OF FIGURES 8 ACKNOWLEDGEMENTS 9 AUTHOR'S DECLARATION 10 PART 1 CHAPTER 1. INTRODUCTION: MUSIC COPYRIGHT IN THE DIGITAL AGE 11 1.1 COPYRIGHT IS DEAD? 11 1.2. AIMS, APPROACHES AND REFLECTIONS ON THE STUDY 13 AIMS OF THE STUDY 13 APPROACHING THE INDUSTRIES 15 1.3 STRUCTURE OF THE THESIS 16 CHAPTER 2: LITERATURE REVIEW 18 2.1 INTRODUCTION 18 PURPOSE AND STRUCTURE OF THE LITERATURE REVIEW 18 2.2: MAPPING THE FIELD 20 POPULAR MUSIC STUDIES: A MULTI-DISCIPLINARY ‘FIELD OF STUDY’ 20 2.3 THE ‘BUNDLE OF RIGHTS’: MUSIC COPYRIGHT INDUSTRIES 21 A ‘BUNDLE OF RIGHTS’ 22 WINNER TAKES ALL 24 THE THREE PILLARS OF THE MUSIC INDUSTRIES 25 THE MUSIC COPYRIGHT INDUSTRIES 27 2.4 COPYRIGHT INDUSTRIES CONSTITUENTS 29 THE MAJOR MUSIC COPYRIGHT COMPANIES 30 INDEPENDENTS AS COPYRIGHT COMPANIES 31 MICRO-LABELS 34 THE ART OF MUSIC PUBLISHING 35 2.5 COPYRIGHT LAW IN MUSIC INDUSTRY PRACTICE: COPYRIGHT TRANSACTIONS 38 COLLECTIVELY NEGOTIATED RIGHTS TRANSACTIONS 38 INDIVIDUALLY NEGOTIATED RIGHTS TRANSACTIONS 41 2.6: ‘TAKE IT OR LEAVE IT’ AND MUSIC INDUSTRY BARGAINING 44 WHERE ARE THE CREATORS? 46 2.7 THE ‘NEW’ MUSIC INDUSTRIES 48 MUSIC COPYRIGHT IN THE DIGITAL AGE 48 THE RECORDING INDUSTRY IN (TERMINAL) DECLINE 49 THE MUSIC SERVICE AGE 51 2.8: CONCLUSION 54 CHAPTER 3: METHODOLOGY 55 3.1: INTRODUCTION 55 STATEMENT OF THE PROBLEM 56 PURPOSE OF THE STUDY 57 3 RESEARCH QUESTIONS 57 THE SCOPE OF THE RESEARCH: DEFINITIONS 58 3.2: JUSTIFYING A QUALITATIVE APPROACH 60 CHARACTERISTICS OF QUALITATIVE APPROACH 60 VALIDATING THE RESEARCH 61 CONDUCTING ‘BACKYARD’ RESEARCH 62 CHRONOLOGY OF THE RESEARCH 65 DATA COLLECTION METHOD 1: MUSIC INDUSTRIES OBSERVATION 66 DESK-BASED RESEARCH 67 INDUSTRIES EVENT ATTENDANCE 68 PROJECT ADVISORY BOARD 69 DATA COLLECTION METHOD 2: DOCUMENT ANALYSIS 70 DOCUMENTS SOUGHT AND COLLECTED 73 USING THE DATA 77 DATA COLLECTION METHOD 3: SEMI-STRUCTURED INTERVIEWS 78 INTERVIEWEE SELECTION 79 CREATOR SAMPLE 81 INVESTOR SAMPLE 82 RECORD COMPANIES 83 MUSIC PUBLISHERS 84 INTERVIEW PROTOCOL 85 INTERVIEW QUESTIONS 85 CODING AND ANALYSIS 86 3.4: POTENTIAL ETHICAL ISSUES 87 ETHICAL CONSIDERATIONS: INDUSTRIES OBSERVATION 87 ETHICAL CONSIDERATIONS: DOCUMENT ANALYSIS 87 ETHICAL CONSIDERATIONS: SEMI STRUCTURED INTERVIEWS 88 3.5 SUMMARY OF METHODOLOGY 88 STRENGTHS, LIMITATIONS AND ALTERNATIVE APPROACHES 88 PART 2: THE 'PAPER DEAL' CHAPTER 4: THE COMMERCIAL FOOTPRINT OF MUSIC COPYRIGHT 92 4.1 INTRODUCTION TO ‘THE PAPER DEAL’ 92 OVERVIEW OF CHAPTERS 4 & 5 92 SUMMARY OF FINDINGS 93 4.2 ROUTES TO MARKET & COPYRIGHT TRANSACTIONS 94 COLLECTIVELY ADMINISTERED TRANSACTIONS 95 THE RECORD DEAL 96 THE PUBLISHING DEAL 98 ‘DIGITAL DIY’ AND SELF-RELEASE 98 4.3 COPYRIGHT TRANSACTIONS & MICROPAYMENTS 99 PHYSICAL SALES 101 DOWNLOADS & STREAMING: PERFORMING RIGHTS 103 DIGITAL MECHANICALS 103 MICROPAYMENTS 105 DOWNLOADS & STREAMING: SOUND RECORDINGS 110 MAKING SENSE OF MICROPAYMENTS 112 RECALIBRATING THE ‘METRICS’ 114 BUT IS IT FAIR? 116 4.4: LIVE MUSIC & COPYRIGHT 117 THE ‘HIDDEN’ INCOME STREAM 118 COSTINGS AND SETTLEMENTS 119 4.5: CONCLUSION 122 ‘ADDING UP’ THE NUMBERS 122 WHAT NEXT? 123 4 CHAPTER 5: COPYRIGHT CONTRACTS 124 5.1 INTRODUCTION 124 CONTRACTS AND CONFLICT 125 COPYRIGHT AND THE CONTRACT SPACE 126 5.2 COPYRIGHT AND CONTRACT 127 MAKE OR BUY 128 COSTS AND BENEFITS 129 AUTHORSHIP AND COPYRIGHT CONTRACTS 130 ASSIGNMENT AND LICENCE 132 5.3: CONTRACTS: PRACTICE AND THEORY 133 COPYRIGHT CONTRACT EXAMPLES 134 RECORD CONTRACT SAMPLE 135 PUBLISHING CONTRACT SAMPLE 138 MODELLING COPYRIGHT CONTRACTS 140 COMMITMENT: SCOPE AND TERM 141 SCOPE 142 TERM OF THE AGREEMENT 143 OPTIONS 144 OBLIGATIONS 145 THE POST-TERM PROBLEM 146 REWARD: ADVANCES AND ROYALTIES 148 ADVANCES 148 ROYALTIES 150 CONCLUDING REMARKS 151 5.4 SUMMARY, CONCLUSIONS AND THREADS 152 FINDINGS 152 WHAT NEXT? 153 PART 3: THE 'REAL DEAL' CHAPTER 6: LONG WAY TO THE TOP 154 6.1 INTRODUCTION 154 CHAPTER OVERVIEW 154 6.2 CHASING THE DEAL 155 STARTING OUT 155 THE RECORD DEAL ‘BADGE OF HONOUR’ 156 PUBLISHING AND ‘DISPARITY OF ESTEEM’ 159 THE ‘NUTS AND BOLTS’: COPYRIGHT AND DECISION-MAKING 161 6.3 MAKING A LIVING FROM COPYRIGHT 165 “THE HARDEST WAY TO MAKE AN EASY LIVING” 166 COLLECTING SOCIETY INCOME 168 COPYRIGHT INCOME FROM LIVE PERFORMANCES 170 THE PRICE OF AN EDUCATION 171 6.4 THE ROLE OF DIGITAL TECHNOLOGY 172 THE ‘NEW’ MUSIC INDUSTRIES 173 ‘DIGITAL DIY’ 174 ON DEMAND STREAMING: SPOTIFY 176 SOCIAL SOUND: SOUNDCLOUD 177 LEVELLING THE PLAYING FIELD 180 6.5 CONCLUSION 181 SUMMARY OF FINDINGS 181 WHAT NEXT? 182 CHAPTER 7: ‘LIFE OF COPYRIGHT’ 183 7.1 INTRODUCTION 183 CHAPTER OVERVIEW 183 5 THE CREATOR ‘PRINCIPAL’ 185 THE INVESTOR ‘AGENT’ 186 THE PROBLEM 186 7.3 LIFE OF COPYRIGHT AND THE ‘CONTRACT SPACE’ 187 INVESTOR ATTITUDES TO LIFE OF COPYRIGHT 189 CREATOR ATTITUDES TO LIFE OF COPYRIGHT 192 SQUARING THE CIRCLE: RHETORIC AND RATIONALE 194 7.4 “UPON MATURER JUDGEMENT AND REFLECTION” 195 BILL FOR THE BETTER ENCOURAGEMENT OF LEARNING 1737 196 USE IT THEN LOSE IT 197 7.5 CONCLUSION 202 FINDINGS 202 CHAPTER 8: CONCLUSIONS 203 8.1: INTRODUCTION 203 8.2: CONTRIBUTIONS OF THE THESIS 203 8.3: MAIN FINDINGS 205 8.4 REFLECTIONS ON THE FINDINGS 208 8.5 REFLECTIONS ON THE STUDY 209 8.6 AREAS FOR FUTURE RESEARCH 211 APPENDICES 213 APPENDIX A: RECORD CONTRACT 213 APPENDIX B: ETHICAL CONSENT FORM 215 APPENDIX C: INTERVIEW QUESTIONS 216 BIBLIOGRAPHY 218 6 LIST OF TABLES 3-1: MCDA Advisory Board 3-2: Routes to Market and Relationship to Copyright 3-3: Routes to Market and Relevant Collecting Society 3-4: Collectively Negotiated Income Documents 3-5: Individually Negotiated Income Documents 3-6: Creator interviewee Type/Role/Name 3-7: Investor Interviewee Role/Name 4-1: Key Creator/Fan Interchanges 4-2: Route to Market & Collective Transactions 4-3: Creator 1 Performing Rights Income 4-4: Creator 2 Performing Rights Income 4-5: Creator 3 Performing Rights Income 4-6: Creator 4 Sound Recording Digital Income 4-7: Creator 4 Sound Recording Digital Income 4-8: Creator 5 Sound Recording Digital Income 4-9: Creator 5 Sound Recording Digital Income 4-10: Scottish Album of the Year Nominees Spotify Plays 4-11: PRS as Proportion of Gross Receipts 4-12: PRS Per Song Income 5-1: Record Contract Sample 5-2: Music Publishing Contract Sample 7 LIST OF FIGURES 2-1: Hesmondhalgh’s Distinctive Features of Cultural Industries 2-2: Retail Value of UK Recorded Music 5-1: David Byrne’s Model of Less/More Control 5-2: Types of Music Publishing Contract 5-3: Key Elements of Music Copyright Contracts 8 ACKNOWLEDGEMENTS Although conducting doctoral research is a largely solitary pursuit it is important to acknowledge the help and support that was provided by a number of people from within and beyond the academic realm. My original supervisory team of Martin Cloonan, Ronan Deazley and Andreas Rahmatian were supportive and encouraging throughout. Latterly, Martin Kretschmer’s clarity of focus brought an invaluable new perspective to the (longer) second half of the project. My colleagues in ‘The CREATTIC’ enriched the experience academically and socially. From the wider CREATe family Professor Ruth Towse provided schooling in the key concepts of cultural economics and much-needed encouragement towards the end of the project. Courtesy of my generous Lord Kelvin/Adam Smith Scholarship I was fortunate to be able to travel widely to present my research. Martin Cloonan and John Williamson were redoubtable travelling companions on three continents.