CMU Daily 24.11.21: Kevin Brennan MP publishes copyright reforming bill he reckons will fix streaming, Amended Nevermind lawsuit cites Kurt Cobain's journals as evidence

Kevin Brennan MP publishes copyright reforming bill he reckons will fix streaming
The draft text has been published for Kevin Brennan MP's Copyright (Rights And Remuneration Of Musicians etc) Bill which, among other things, sets out to apply performer equitable remuneration to streaming.

Brennan is a member of Parliament's culture select committee, and his bill proposes a number of the changes to UK copyright law that were recommended at the end of that committee's inquiry into the economics of streaming.

That inquiry spent a lot of time looking at the artist/label relationship, and the impact an artist's record deal has on what monies they earn from streaming. That's important because streaming services pay labels and distributors when recordings are streamed, and what share of that money then goes to the artist depends entirely on their label or distribution deal.

And, of course, for heritage artists those label deals were negotiated in a pre-digital age and therefore don't have specific terms covering streams. Many labels have been accused of interpreting those old record deals in an unfair way, paying physical era royalty rates to artists even though the digital delivery of recordings does not have as many costs attached to it.

The big proposal made throughout the inquiry was that so called performer equitable remuneration be applied to streams. This is the system already employed when recorded music is broadcast or played in public - or performed or communicated, in copyright law terms. When recorded music is used in that way performers have a statutory right to payment at industry standard rates, oblivious of any deal they may have made with a record label. Performer ER payments are then made through the collective licensing system.

If ER were to be applied to streams, then performers would get at least some of their digital income at industry standard rates via their collecting society, reducing the impact of any record contract terms.

Parliament's culture select committee - and Brennan's bill - proposes ER be applied to streams by amending copyright law so that the ER principle also applies to the 'making available' element of the copyright, which it is generally agreed is exploited whenever music is streamed.

However, Brennan's bill says that this new ER right would only apply where "a performer has transferred their making available right concerning a sound recording of the whole or any substantial part of a qualifying performance to the producer of the sound recording". This is an important exclusion given the number of artists who now self-release their recordings.

For those artists who self-release music - basically via their own labels - by utilising the services of a distributor, a big old shift to ER on streams could actually have a negative impact. For example, an artist currently releasing music via a DIY distributor like Tunecore pays an upfront fee and receives 100% of any subsequent streaming income, usually getting paid within two months from any one stream.

If some of that income was to go through the collective licensing system as ER, they'd have to pay a commission to the collecting society that administers the renumeration right, and there would likely be a time-lag in getting paid as said society processes all the data it receives from each streaming service. However, the exclusion in Brennan's deal means many DIY artists would continue to be paid entirely via their distributor, avoiding any of the costs and delays of the ER system.

The exclusion relates to the approval rights of performers already provided by copyright law. The default owner of a sound recording copyright is whoever organises a recording session, which was traditionally the label. So the making available control that comes with the sound recording copyright belongs to the label not the artist.

However, performers have their own rights over recordings that they perform on, even when they are not the copyright owner. That includes a making available right. This basically works as an approval right. Copyright owners - usually labels - need to get permission from artists - both featured artists and session musicians - to make available the recordings on which they appear. It's when artists provide that approval - and "transfer their making available right" - that the ER right would kick in.

Self-releasing artists aren't transferring their making available right as a performer - because they are both the performer and the copyright owner. Therefore the new ER right wouldn't apply to those self-releasing artists, and those artists can circumvent the new ER system.

Except - of course - if they use session musicians. Because in that scenario the session musician is transferring their making available right to the main artist, who is the copyright owner. So, ER would be due to those session musicians. Quite how an ER system of this kind would work - ie how does the society administering the system know which tracks involve musicians who have transferred their making available right? - isn't yet clear, and would need to be worked out.

What would also need to be worked out is what, exactly, equitable remuneration would mean. With broadcast and public performance, 50% of monies goes to the copyright owner and 50% to performers. But that split is by industry agreement and not dictated by copyright law. A different split could be applied to streams. Plus, a stream also exploits the reproduction control of the copyright and the ER right only applies to the making available. On the songs side in the UK it's been agreed that a stream is 50% reproduction and 50% making available.

The UK's Intellectual Property Office has already commissioned research into how performer ER might work, and it will likely consider the different ways ER on streams could work, and then assess the impact that would have on artists and labels, and on the different deals and business models artists now enter into when it comes to their recorded music.

The other copyright reforms proposed by Parliament's culture select committee that are also included in Brennan's bill relate to contract adjustment, copyright reversion and transparency.

Contract adjustment is about giving artists and songwriters the right to renegotiate old deals that seem unfair in the context of the modern music business.

Or, in the word of the bill, artists who transferred their making available right as described above "shall be entitled to claim ... additional, fair and reasonable remuneration from the person with whom they entered into a contract for the exploitation of their rights ... in the event that the remuneration originally agreed is disproportionately low compared to all subsequent revenues derived from the exploitation of the rights".

The right of revocation allows artists and songwriters to reclaim rights they previously assigned, transferred or licensed after 20 years. In the case of songwriters, this would allow the writers to actually reclaim the copyright in their songs, they being the default owner of those rights.

On the recordings side, if and when the label is the default owner of the copyright, performers would seemingly have the right to revoke any approvals they previously made to the label, basically forcing said label to negotiate a new deal to get the required approvals. And that would also likely include session musicians as well as featured artists.

In terms of transparency rights, Brennan's bill says that artists and songwriters who have transferred rights would be "entitled to receive on a quarterly basis, up to date, comprehensible, relevant and complete information on the exploitation of such performance including all revenues or benefits of any kind generated; and remuneration due".

Although that would only apply to labels and publishers, not collecting societies, which is a shame given that transparency issues around collective licensing are often as bad as when labels and publishers negotiate deals. Technically societies already have some transparency obligations as a result of a past European Union collective rights management directive - which is referenced in Brennan's bill - although in practical terms that directive had only minimal impact in making the collective licensing system more transparent.

Most of the proposals in Brennan's bill - and especially those relating to ER and revocation rights - will be controversial within the wider music community. Indeed, the controversy has been building in recent weeks even before the draft proposals were formally published.

The Intellectual Property Office has also commissioned research on contract adjustment and revocation rights (aka reversion rights), with the government concluding in its response to the culture select committee's streaming inquiry that all the copyright reforms it proposed needed more investigation. And a working group is also being put together to discuss transparency issues.

Critics of some or all of Brennan's proposals will argue that that research should be conducted first before any changes to the law are made, to assess the impact on the wider music industry, on all the different ways artists structure their businesses, and on the ability of labels and publishers to invest in new music and new talent. Some of the reforms will also have ramifications beyond the jurisdiction of UK copyright law that also need to be considered.

But supporters of the bill will likely counter that the law-making process isn't quick. Brennan's proposals will be discussed in Parliament next week, but - assuming they are not actively opposed - they will then be scrutinised by a committee in the House Of Commons before a final vote, plus they'd also need to be debated and approved by the House Of Lords. And while that process is going through the motions, the IPO can do its research.

And, of course, given how slow copyright reforms usually are - and with the digital music market continuing to evolve pretty rapidly, so that many of the debates about the Spotify streaming business model might seem rather antiquated within a few years - those who have been campaigning for these reforms would like to ensure that the momentum they've built over the last year is maintained.

Of course, the government has already said that it reckons more investigation is needed, and generally private member bills in Parliament don't succeed if they are outright opposed by the party of government. Though supporters of Brennan's bill hope that - with a number of Conservative MPs having already given public support for the proposals - that it could even go through without formal government backing. We shall see.

You can read the draft bill here.

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Statements on Kevin Brennan's copyright reforming bill
Kevin Brennan MP: "More and more people are streaming music - heightened by the pandemic - yet, unlike for radio, there is no guaranteed royalty payment for all the musicians who have contributed to the recording being streamed. To redress this, my private member's bill seeks to allow performers and composers to access means to ensure a fair sharing of revenues generated from their works. In particular, the bill will introduce a right to equitable remuneration for performers on musical works, where works that they have performed upon are made available to the public. These reforms would lead to more new music, the revival of recording studios, a boost to the UK session music scene, the unearthing of a new generation of British talent, and Britain becoming once again a world-leading cultural hub for the recorded music industry".

Naomi Pohl, Deputy General Secretary of the Musicians' Union: "The domination of the major music groups in the streaming market is clear. Musicians and songwriters are not getting a fair enough deal and legislative reform is overdue. Now is the time to address the imbalances in the music industry and in music streaming in particular. We are calling on the government to allow a free vote on the Brennan Bill on 3 Dec. Members across the House Of Commons have already voiced their support for the bill, showing the depth of bi-partisan commitment to fixing streaming to ensure performers are fairly paid for their streamed music".

Graham Davies, CEO of The Ivors Academy: "On behalf of songwriters and composers our thanks go to Kevin Brennan and MPs from all parties who understand that Britain's place as a cultural powerhouse rests on investing in people that actually make music. The growth of the streaming market has diverted too much wealth to multinational record labels at the expense of music makers. These market distortions must be fixed in order to grow Britain’s enviable music sector".

Association Of Independent Music: "We think the approach to streaming should be data first, discussion second, and law last - we have expressed our concerns and are open to reviewing and discussing them with all stakeholders to figure out the best way forward. Legislating before this is reckless".

Record industry trade group BPI: "This bill would bind British music in red tape, reduce income for the most entrepreneurial artists, stifle investment and innovation by record labels, and disproportionately harm the independent sector. It would create huge uncertainty and deny many of the next generation of artists their shot to build a career. It completely misunderstands today's music business, and the value that labels provide in finding and nurturing talent. Labels are committed to ensuring artists are rewarded in line with their success from streaming, but just as British music is finally climbing out of its long downturn, this misguided, outdated regulation would be a damaging step backwards, eroding the foundations of the UK's extraordinary global success in music".

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Amended Nevermind lawsuit cites Kurt Cobain's journals as evidence
The man who appeared on the cover of Nirvana's 'Nevermind' album as a baby has submitted an updated lawsuit against the band and their label, attempting to further his claim that the image of him swimming naked on that record's artwork amounts to "commercial child pornography".

Submitted earlier this week, the amended lawsuit more sharply focusses on Kurt Cobain and photographer Kirk Weddle, further pushing the claim that both intended the image of the four month old baby to be sexual.

At the centre of that is the allegation that Weddle aimed to "trigger a visceral sexual response from the viewer" by activating "Spencer's 'gag reflex' before throwing him underwater in poses highlighting and emphasising Spencer's exposed genitals".

"Weddle soon after produced photographs of Spencer dressed up and depicted as [Playboy founder] Hugh Hefner", the new lawsuit adds, without further comment.

The filing also quotes from the 2002 book of excerpts from Cobain's journals, highlighting various controversial and provocative statements he made relating to sex and children. Although these undated statements are not given their surrounding context.

It also claims that the book sees "Cobain sketch the album cover in a sexual manner, with semen all over it". This seemingly relates to a page planning out a video for the song 'Come As You Are', which suggests super-imposing images of "babies swimming", sperm cells, jelly fish and sea monkeys over footage of the band. It is not clear if the accompanying drawing was made prior to the creation of the 'Nevermind' cover, but it does feature swimming babies and dollar bills on fish hooks.

Following this, the lawsuit says that "Cobain was instrumental in selecting Spencer's image for the album cover" and was keen to make it "provocative". It also claims that there were behind-the-scenes discussions about the "image's appeal to paedophiles" and that there was talk of censoring the artwork with a sticker at the time.

There are a number of omissions from the updated lawsuit too. No longer named as defendants are former Nirvana drummer Chad Channing, Warner Music, and managers of Cobain's estate, Heather Parry and Guy Oseary. It also removes a line stating that Eldon "never received any compensation" for appearing in the photograph.

In his original lawsuit filed in August, Eldon claimed that he has suffered "extreme and permanent emotional distress" as a result of appearing on the 'Nevermind' cover three decades ago. He is seeking a minimum of $150,000 from each defendant.

A 30th anniversary edition of the album was released earlier this month, featuring the original artwork.

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Live industry welcomes relaxation of Scottish vaccine passport scheme
The Scottish government has announced that it will not extend the country's vaccine passport scheme to more venues. Plus, starting next month, people trying to enter venues already covered by the scheme will also be able to present a negative COVID-19 test to gain entry, instead of proof that they are fully vaccinated.

It had been expected that the scheme would be extended to more venues, but yesterday First Minister Nicola Sturgeon said data on infections was "more positive than we might have expected it to be". Given the "inevitable impact vaccine certification has on the operation of businesses", she added, it would not be appropriate to widen the scheme at a time when infections are falling.

The live music and night-time sectors have been critical of the Scottish government's decision to mandate certain venues to check COVID Passports at the door, and only allow in those who have been vaccinated against the coronavirus, preferring the English system whereby it is up to individual venues as to whether or not they have such entry requirements.

Reps for the live and night-time industries remain critical of the COVID Passport requirement in Scotland, though have welcomed the fact that the scheme is not being extended, and that - as in Wales already - a negative COVID test will be accepted instead of a vaccination certificate.

Commenting on the latest announcement, CEO of live industry trade body LIVE, Greg Parmley, says: "The live music industry is pleased that the Scottish government has announced that negative lateral flow tests will be included in the COVID certification programme in Scotland. While there is still no evidence of the need for such a scheme, and we believe that industry measures to mitigate risk are sufficient, the inclusion of testing will result in a great number of people being able to access live music and provide vital income for the industry".

Questioning the need for restrictions on entry to certain venues, he adds: "The Scottish government's own evidence demonstrates that introducing vaccine passports has failed to increase the rates of vaccination, in fact in the 18-29 group the numbers of people getting their jabs in Scotland has been at a similar rate, and at times higher, in England where there is no vaccine passport. At the same time, evidence from some parts of the Scottish live music industry has shown this policy has slashed income by up to 40%".

Meanwhile, the Night Time Industries Association Scotland says that it is "encouraged" by the Scottish government's latest announcement, calling it "a sensible and pragmatic decision which takes into account the extraordinary harm businesses have suffered as a result of restrictions over the last two years, the lack of evidence that this scheme has any meaningful impact on vaccine uptake, concerns around human rights, and also recognises that the current trajectory of infections and hospitalisations is falling".

However, like LIVE, it questions the need for such a scheme at all, continuing: "We now call on Scottish government to urgently review whether continued application of the scheme is either necessary or proportionate and provide urgent financial grant support to those businesses that remain in scope of the scheme".

"It is a positive step in the right direction that lateral flow tests will now be included as an alternative to double vaccination, which will safeguard late night venues in particular, and is something the trade body has advocated for from the inception of this scheme", they continue. "This brings Scotland in line with other European nations, and partially alleviates at least some of the equalities and social exclusion harms that were previously the case. However the experience in Wales indicates that affected businesses, even with [COVID test] inclusion, have still suffered a 26% decrease in trade".

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Dua Lipa launches Service95 newsletter and podcast
Dua Lipa has announced the launch of a "global style, culture and society concierge service". That's a fancy way of saying "a newsletter and a podcast". It's called Service95 and will offer "a witty and considered curation of lists, recommendations, stories, information, thoughts, perspectives and conversations you won’t hear, see, or read everywhere else".

The free weekly Service95 newsletter will pull together news on interesting cultural things happening around the world and articles on important issues that you need to know about. There will be a personal letter from Dua Lipa in each one too. Personal to her, not you. Everyone gets the same one. But it'll tell you what cool and interesting stuff she's been enjoying.

The accompanying At Your Service podcast will see Lipa interviewing a range of guests discussing all manner of topics and recommendations.

"The more we share with each other, the closer we become, the wider our circles grow", says Lipa. "I find huge joy in telling people what I've learned about in any given city and love finding connection in our shared experiences. Service95 is going to take that idea and bring it to anyone who's as curious as I am about life".

Of the podcast, she adds: "Though a lot of my guests have done their fair share of talking, I want to go deeper with them. Not only am I probing them about the things I'm most curious about, I'm also treating them like the experts they are".

The first Service95 newsletter will arrive in January. You can sign up here now.

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Nick Cave and Warren Ellis compose soundtrack for snow leopard documentary
Following on from the release of their first standalone album together, 'Carnage', earlier this year, Nick Cave and Warren Ellis have got right back to their day job of writing film soundtracks. The film is 'Les Panthère Des Neiges'. Yeah, a French one. Fancy.

Out on 22 Dec, the film sees wildlife photographer Vincent Munier and novelist Sylvain Tesson trying to find a snow leopard.

"There is something about the heart of this film that draws you in", says Ellis. "I realised after a day, that I wanted to do whatever it took to compose an entire original score. The film deserved to have its own musical voice".

"I booked five days and asked Nick if he could come in for a day to write a theme song and play some piano", he continues. "He saw the film and stayed for four days. In the end we made what I think is one of the most beautiful [film scores] we have ever worked on. One of my favourite experiences ever working on a project. The stars are the animals in all their wild glory, as we have never seen them before, and man in reverence and wonder".

Anywoo, there's going to be a soundtrack album, which will be jointly released by Invada Records and Lakeshore Records on 17 Dec. A track from it, 'We Are Not Alone', is out now.

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Grammy nominations announced
Christmas is coming, the goose is getting fat, which means it's nearly time for the Grammy Awards and... fucking hell I didn't think this rhyme through at all. Anyway, the Grammy nominations are out. Because, despite what you've been telling everyone, the Grammy Awards will be back for the 64th time on 31 Jan.

The big battle this year is between Olivia Rodrigo and Finneas, who are each nominated in all four of the big categories - Album Of The Year, Song Of The Year, Record Of The Year and Best New Artist.

Although it might seem like a bit of a stretch, Finneas counts as a new artist because he only released his debut solo album fairly recently. The other nominations are all for his work with his sister, Billie Eilish (who won Best New Artist two years ago).

So that's the categories that get the most talked about covered. Finneas and Rodrigo do not have the most nominations overall though. That accolade goes to Jon Batiste for all sorts of stuff, including his work on the soundtrack to Pixar movie 'Soul'. He's up for eleven awards. After him are Justin Bieber, Doja Cat and Lil Nas X, who each have a less impressive eight nods.

Now, because there are approximately 7349 categories at the Grammys, we're just going to concentrate on those big four here. If you want to delve further, you can check out the full list here. Just to warn you, they format the list to make it seem even longer. But, yeah, here are those top awards...

Record Of The Year
Abba - I Still Have Faith In You
Jon Batiste - Freedom
Tony Bennett & Lady Gaga - I Get A Kick Out Of You
Justin Bieber - Peaches (feat Daniel Caesar & Giveon)
Brandi Carlile - Right On Time
Doja Cat - Kiss Me More (feat SZA)
Billie Eilish - Happier Than Ever
Lil Nas X - Montero (Call Me By Your Name)
Olivia Rodrigo - Drivers License
Silk Sonic - Leave The Door Open

Album Of The Year
Jon Batiste - We Are
Tony Bennett & Lady Gaga - Love For Sale
Justin Bieber - Justice (Triple Chucks Deluxe)
Doja Cat - Planet Her (Deluxe)
Billie Eilish - Happier Than Ever
HER - Back Of The Mind
Lil Nas X - Montero
Olivia Rodrigo - Sour
Taylor Swift - Evermore
Kanye West - Donda

Song Of The Year
Ed Sheeran - Bad Habits
Alicia Keys & Brandi Carlile - A Beautiful Noise
Olivia Rodrigo - Drivers License
HER - Fight For You
Billie Eilish - Happier Than Ever
Doja Cat - Kiss Me More (feat SZA)
Silk Sonic - Leave The Door Open
Lil Nas X - Montero (Call Me By Your Name)
Justin Bieber - Peaches (feat Daniel Caesar & Giveon)
Brandi Carlile - Right On Time

Best New Artist
Arooj Aftab
Jimmie Allen
Baby Keem
Finneas
Glass Animals
Japanese Breakfast
The Kid Laroi
Arlo Parks
Olivia Rodrigo
Saweetie

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RELEASES

Lil Wayne and Rich The Kid have released the video for 'Trust Fund' from their 'Trust Fund Babies' mixtape.

Bloc Party will release new album 'Alpha Games' on 29 Apr. Here's new single 'Traps'. "From the moment we wrote 'Traps', we knew it had to be the first thing people heard from this album", says Kele Okereke. "Playing it in soundchecks on our last tour before it was finished and hearing how it sounded in those big rooms and outdoors".

The Bug and Sleaford Mods vocalist Jason Williamson have teamed up for two new tracks: 'Treetop' and 'Stoat'. "I've been talking with Kevin [Martin, The Bug] for a few years now as regards doing some tunes", says Williamson. "Matching something to The Bug's music was always on the cards, a chance to shape different vocal approaches to a certain degree which is deffo evident on 'Stoat', I think. Love both tunes. Proper. Bang into this collab".

Eels have released new track 'The Magic', taken from upcoming new album 'Extreme Witchcraft', which is out on 28 Jan. There will be tour dates in March too.

Exit Kid are back with new single 'Basis'. They have a new EP of the same name out on 10 Dec. "'Basis' is a very simple song about love and dedication", says Emre Türkmen. "It's good to let people know how you feel while you have the opportunity".

Coucou Chloe is back with new single 'Wizz', taken from her upcoming EP 'One', which is out on 9 Dec.

Rina Mushonga has released new single 'Everything = Personal'. "The title is inspired by the activist slogan 'the personal is political' which really speaks to how everything is connected, I feel", she says. "Injustice isn't something that happens way out there – it stains all of us. It all sounds a bit heavy, haha, but this song is also a song of empowerment and self-actualisation. I find it hard to write without hope – there's always hope in my music".

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GIGS & TOURS

Ed Sheeran has announced a livestreamed show, which you'll be able to watch wherever you are in the world on 5 Dec (or possibly 6 Dec, depending on your timezone). It'll be streamed via Amazon Music. "I'm looking forward to celebrating the release of '=' with this special gig and with my fans from across the globe", says Sheeran. "I'll be playing a load of new tracks for the first time on the night, too! See you on the 5th". Or 6th, depending on your timezone. Here's more info.

Paul Heaton & Jacqui Abbott will play two stadium shows next year. You can catch them at the Totally Wicked Stadium in St Helens on 22 Jul and Doncaster's Keepmoat Stadium on 23 Jul. Tickets go on sale on Friday.

Ghost will be in the UK for some tour dates in April next year, including a show at the O2 Arena on 11 Apr.

Foxes is going to be touring the UK in February. Tickets, as they say, will be on general sale on Friday.

Grouper will play The National Concert Hall in Dublin on 12 Apr and The Barbican in London on 14 Apr. Tickets are available now.

Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

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Ladbaby not ruling out fourth Christmas number one bid
For the last three years in a row, the UK Christmas number one has been a sausage roll themed parody of a classic song. All of them by Ladbaby, of course, that wasn't just a weird coincidence. Can he make it four years in a row? Well, he's currently the bookies' favourite, although he's not actually announced his intention to release another song.

"You'll have to wait and see", he tells Metro, when asked if there will be another Ladbaby single this Christmas. "Never rule out a sausage roll at Christmas is what I would say".

So, I think we can take that to mean he's going for it. But he does seem a little concerned about the competition this time round. "There are so many megastars going for it this year", he says, "Ed Sheeran, Elton John, Mariah Carey, of course, Abba. Adele has got a new album".

Yeah, it would probably be a bit of a silly idea for him to try to be the festive chart topper amid all that megastar competition. Although you also could have said that - and many people did - in any of the last three years. One way of taking on all those superstars would be to get another superstar to join him. And he's got some ideas for that.

"Mariah Carey would be amazing – 'All I Want For Christmas Is Sausage Rolls'", he says. "I can't see her doing it but it would be amazing. I'm a massive Stormzy fan [and] I don't think there's ever been a sausage roll rap of any form. That would be incredible. And I know that Lewis Capaldi's got an affinity with sausage rolls, he's got a deep rooted love for them, as have I. I've not heard a lot from Lewis, maybe he's working on a sausage roll album".

It remains to be seen if sausage rolls do indeed rule the Christmas chart this year, or if three times is enough for Ladbaby. He's putting out a festive children's book this year anyway. So maybe it's time for him to hang up his musical Santa hat.

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