Kevin Brennan MP proposes “a new right to fair remuneration” from streaming for musicians in private members bill


June 17, 2021

Labour MP Kevin Brennan yesterday presented a Copyright (Rights And Remuneration Of Musicians etc) Bill to Parliament which seeks to amend UK copyright law so to “create a new right to fair remuneration for musicians when their work is played on streaming platforms”. The proposed legislation is a direct response to the #fixstreaming and #brokenrecord campaigns, which have called for musicians to have a statutory right to equitable remuneration when their music is streamed.

Any member of the UK parliament can propose new legislation, although when proposals come from MPs who are not also in government, only really the so called ballot bills have any chance of becoming law. That’s because they get priority on the handful of days when Parliament considers proposals from backbench MPs rather than government ministers.

Basically, backbench MPs put their names into a ballot, names are drawn out, and those MPs’ proposals are prioritised in the order they come out of the draw. It’s a bit like a garden fete but is also a fundamental part of British democracy.

Brennan’s copyright reforming bill is a ballot bill. But where did he come in the draw? Number six. That’s where. Just behind proposals to increase the minimum age for marriage from sixteen to eighteen, and ahead of a bill that seeks to make it easier for Britains to access medical cannabis. The first seven ballot bills are guaranteed a debate in the House Of Commons, so all three of those will be discussed. Brennan’s bill will get Parliamentary time on 3 Dec.

Only a minority of private member bills become law, partly due to them not getting sufficient Parliamentary time to go through the motions, and partly because if they are opposed by the government they are likely to get voted down in the House Of Commons. Especially when the party of government has a majority in the house of 80, as it currently does.

However, they nevertheless put the spotlight on issues, can influence government policy, and some do get voted through. Brennan’s bill, of course, follows the big old inquiry into the economics of streaming by Parliament’s culture select committee, of which he is a member.

Although that inquiry dealt with many of the complexities regarding the ways in which streaming services are licensed by the music industry – and how streaming royalties are calculated and paid each month – by far the most time was spent on the digital pie debate, ie how streaming income is shared out between artists, songwriters, record labels, music publishers and the streaming services themselves.

The bit of the digital pie debate that got the most attention is how that streaming money allocated to recordings each month is shared out between artists and labels. That depends entirely on the deal that has been done between the artist and the label or distributor they work with. The artist could be getting anywhere between 5% and 100% of the money. And that money could still be paying off advances and other upfront costs that a label is allowed to recoup from future income. So, lots of variation across the industry.

However, with the streaming royalty rate on most new record deals, certainly with the majors, around about 20-25% – and older record deals usually paying less than that – many argue that the current model is unfair to artists. Plus, under the current model, session musicians don’t receive any payments when their music is streamed.

One proposal to try to get artists a bigger cut of the streaming money is to apply so called performer equitable remuneration to streams. That’s the system that currently applies when recordings are broadcast and played in public. All musicians have a statutory right to payment at industry-standard rates in those scenarios, with monies paid via the collective licensing system. If ER was applied to streams, all artists would be guaranteed a minimum share of digital income.

Legally speaking, the easiest way to make that happen is to extend the ER right to the so called making available element of the copyright, which is exploited when music is streamed. Currently ER only applies to the communication and performance elements of the copyright.

A letter to Prime Minister ‘Boris’ Johnson earlier this year – organised by the Musicians’ Union, Ivors Academy and #brokenrecord campaign, and signed by more than 230 artists – proposed such a change, noting: “Only two words need to change in the 1988 Copyright, Designs And Patents Act. This will modernise the law so that today’s performers receive a share of revenues, just like they enjoy in radio”.

Welcoming Brennan’s Copyright (Rights And Remuneration Of Musicians Etc) Bill, the MU, Ivors and #brokenrecord campaign said this morning: “By tightening up the law so that music streaming pays more like radio, streaming income will be put back where it belongs – in the hands of artists. It’s their music so the income generated from it should go into their hands”.

Meanwhile, Brennan himself said of the bill: “Musicians’ earnings have been devastated by the closing down of gigs which has helped highlight how they are not getting a fair share of record streaming revenues – my bill will create a new right to fair remuneration for musicians when their work is played on streaming platforms”.

Although changing copyright law to provide an ER right on making available is relatively simple – if you can get it to the voting stage in Parliament and win enough support – actually implementing an ER system for streams would be somewhat more complicated, with plenty of questions remaining over exactly how it would all work.

Session musicians would benefit however it was set up, given that they currently receive nothing from streams, and many heritage artists would likely get a bigger cut of the digital pie too. Though newer artists with better label or distribution deals could actually lose out once the cost of administering ER is taken into account, while some of the data issues that hinder songwriters when it comes to streaming royalties could be exported over to the recording side.

Nevertheless, there is still plenty of support for the ER approach in the artist community. And Brennan’s proposals have cross-party support in Parliament too, with Conservative MPs like Esther McVey and Damian Green among those backing the bill.

MU Deputy General Secretary Naomi Pohl also welcomed the first reading of Brennan’s bill yesterday. “We are THRILLED that this bill backing our campaign to secure fairer remuneration for musicians from streaming has received its first reading today”, she said. “The fact that it has cross-party support is much appreciated and extremely encouraging. Thanks to Kevin Brennan MP who has been tireless in his efforts to highlight the struggles of today’s performers and creators. We can fix streaming. This bill is a major milestone”.

Meanwhile, Ivors Academy CEO Graham Davies also welcomed the proposal, stating: “We have a fantastic opportunity to grow the UK’s creative industries by reforming copyright and contracts. These reforms are long overdue. The UK is a world-leader in the creation of music and digital content, but global competition is fierce, and we must not fall behind. Providing fair compensation for songwriters, composers and artists will ensure we retain our position as a cultural powerhouse. Many thanks to Kevin Brennan for spearheading these much-needed reforms with this bill”.

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