WIKIPodcast
What is it?
In March 2006, MCPS-PRS Alliance (aka. the Music Alliance), i.e. the UK agencies responsible for collecting and distributing royalties from the use of copyright music - issued a "podcast licence".
Without a 'blanket' podcast licence, to use works written by members of Mechanical-Copyright Protection Society (MCPS) and Performing Right Society (PRS), podcasters would need to approach each one individually and negotiate a licence from them to use it.
Executive Summary
This is a clumsy regulation constructed using an unworkable model without reference to the actual practice of UK podcasters. The MCPS and the PRS are not branches of government but are in fact, private royalty collection agencies and as such can only ask for people to cooperate with them. They cannot create new law or regulations that have the force of law.
Problems and Concerns
The licence seemed to extend the remit of MCPS-PRS into speech-only podcasts - although this has since been retracted by the Music Alliance (MA) on the telephone and blamed on "bad phrasing" (Adrian Crookes), the implication sparked lively debate in podcasts, forums and blogs. From Paul Parkinson: I pointed out that the last paragraph was written in such a way that it could be read that the Alliance were looking to license all podcasts - irrespective of musical content. He re-read the paragraph and agreed that it had been written poorly and the intention was not to do that.
Freedom of expression
The licence enforces a set of unworkable "podcast rules". Podcasters were polled on the issue in the Podcast Nation blog: [[1]] This article links to the PRS licence and quotes their proposed podcast "rules" in full.
Conflation
The danger of putting podcasters in the same boat as P2P file sharers.
Stifling the development of commercial podcasting
The licence prices the use of MA-licensed repertoire beyond the reach of most podcasters. Paul Parkinson again: I then went through a worked example when I pointed out that a UK based podcast playing a track in full would be charged 1.5p per download - the example was 1,000 listeners x 1.5p = £15 per podcast, double that for two tracks played and increasing linearly for more listeners. I told him that seemed expensive for the average podcaster. Adrian C made it clear at this stage that the pricing is for revenue-generating podcasts - podcasts which have very low or zero revenue (the vast majority of us) would be covered under the LOEL Agreement if we chose to go that route - which would be around £50 per quarter. - NB: This has since been raised to £100 per quarter / £400 per year.
Choice of licence
The MA see themselves as de facto agents for all their members' works regardless of whether works have been notified, i.e. put into their system. This doesn't allow for artists to select Creative Commons or other licences as they see fit. This puts podcasters who also belong to the MCPS or the PRS and who want to play their own music in an untenable position.
Retrospective Restrictions
Once musicians license their work via the mainstream collection agencies, the MA and record companies can lay claim to the entirety of an artist's catalogue, which undermines the "podsafe" concept. This might come back to haunt currently "safe" podcasters, as currently unsigned bands become successful and move into the mainstream.
Confusion
It's been suggested that there's "not a shred of evidence" in relation to the MCPS "extending its remit into speech podcasts." Even that the MCPS have denied this is the case at least twice.
The PRS-MCPS Alliance's press release on the subject clearly mentions plans to produce a speech podcast licence:
- "Non-music podcasts (e.g. predominantly speech with very little music) will be licensed under a new on-demand scheme for non-music services which is being prepared for launch at the end of April 2006"
Tim Cowlishaw:
- I assume that either this is an aggressive attempt to exploit unjustified fees from podcasters, or the new licence mentioned covers the use of music in a popcast containing prodominantly speech - as a jingle, theme or background music.
Alex Bellinger SmallBizPod:
- The press release you refer to has caused some confusion, but that MCPS has clarified over the phone to me and to one other UK podcaster that they are not planning to licence speech podcasts (clearly something beyond their or anyone else's remit). As you suggest they're only interested in providing a podcast licence for the intro/outro/background music in a predominantly speech based podcast. And only if that music is itself licensed by the MCPS itself. All unlicensed music is of course podsafe.
- So, long story short, not something for UK podcasters to be terrified about. Having said that, if you want to use commercial/licensed music there is definitely a role for the UKPA to negotiate with the MCPS to create a more flexible/workable licence in this context.
Dean Whitbread:
- There is no wilful misinterpretation and the Music Alliance have since admitted the confusion they caused by their wording of the licence - see above. This may have been an error on their part or it may have unwittingly indicated that they did indeed intend to extend their remit. Nothing has yet been issued by them in writing to clarify this point and we are seeking to obtain this.
Background
Some UK podcasters considered the issue to be of the greatest immediate importance to the entire community, others a minor irritation which could be safely ignored, and others dismissed it as totally irrelevant. A large group of podcasters using "podsafe" music did not consider the licence would affect them in any way. While many of the more commercially-oriented podcasters have no problem with paying fair fees for the use of copyright music in commercial podcasts, the rules push podcasters into sticking to unacceptably restrictive formats. Paying the licence will be seen as accepting these restrictions.
Re: use of music. Even podcasts dated from a "podsafe" era will possibly not remain podsafe and protected at the point the band moves into the mainstream and accepts the restrictions attached to the collection of royalties by the MA agencies. I know this seems incredible, but retrospective changes to licences can and probably will be applied. Even the best kept records won't be of any use, should some stroppy record company decide to exercise its rights on somebody's back catalogue. Yes, you can fight them, but it will be a very expensive battle, and you are not guaranteed to win it. In UK Law, everything in intellectual property can be bought and sold.
An illustration of the complexities of podcasting created by the Music Alliance's current position. I am a long standing MCPS and PRS member, I own my own label, I own my own publishing company, I write and perform my own music. Despite all these facts, as it currently stands, strictly speaking, according to the Music Alliance, I am expected to pay their licence fee for podcasting my own music. When I said to them "Only notified works" they replied "All works by members are covered". In practice, they would have a devil of a time enforcing this, but quite seriously, this is their position, stated on the phone April 2006.
In response to overwhelming Yes to the final question in the poll, Do UK Podcasters think there is a need for an organisation to represent the interests and protect the rights of UK Podcasters? the non-profit org, UK Podcasters Association was formed in order to promote the fair treatment of Podcasters / Podcasting. UKPA doesn't want clumsy legislation stifling an explosion of UK talent and we see that there is an educative responsibility for us here. We need to explain why this isn't broadcast, or publishing, and push for recognition of the differences. We want a collective voice - and alliances with similarly concerned rights groups - when it comes to legislation that will affect us, our creative output, or our future income. Most importantly, the right to freely record and podcast our own voices speaking our own words and to disseminate our recordings without having to pay for the privilege should be inviolate.
Outside the UK
Podcasters watch with interest. UKPA has formed links with the Irish and German podcasters groups.
Links
UKPA Press Release 31 May 2006
News
VH is blogging that in Belgium a former talk-show host and now member of parliament for the biggest political party, Jurgen Verstrepen, received a fine of 12,500 Euro because he hadn't asked permission for his podcast.