Live streaming must respect the rights of songwriters

The following MBW blog comes from David Israelite (pictured), the President & CEO of the National Music Publishers’ Association (NMPA). The NMPA is the trade association representing American music publishers and their songwriting partners.

Right now we are witnessing an arms race to offer consumers interactive livestreamed experiences.

Partnerships like Amazon Music’s recently-announced integration with Twitch show that music fans will soon expect a seamless interface that allows them to toggle between pure audio and audiovisual when their favorite creators go live.

We know that music is central to the livestreaming phenomenon. However, we continue to see technology companies fail to secure the necessary rights to operate these new ventures, and consumers’ favorite music creators are paying the price.

Livestreams clearly existed before the pandemic, but like many changes spurred by social distancing and massive amounts of time spent at home, the COVID-19 crisis has accelerated the movement towards virtual music experiences, and this shift threatens to leave the musicians most crippled by the public health crisis behind.

This is because many of the technology companies behind these new sophisticated offerings claim the licensing rules surrounding them are blurry, when in reality the rights necessary for livestreamed audiovisual music performances remain clear.

A recent comment from Twitch VP and head of Music Tracy Chan demonstrates the supposed ambiguity. In discussing securing rights for Twitch’s new partnership, Chan said, “We value the work of songwriters and musicians and producers primarily, and we give guidance to our music creators to respect that intellectual property. We have our DMCA program. We also have taken the additional steps of working with the performing rights organizations on behalf of our creators, just because it’s an extra easy step that our creators don’t have to worry about, and it enables songwriters and publishers to get paid.”

This highhanded sentiment belies the fact that performance rights are not an additional, superfluous step, but are central to a platform’s ability to livestream music legally. Ultimately, they’re just the beginning depending on what is being broadcast.

If a livestream is recorded or saved, or made available on demand, mechanical rights are also necessary. A song’s on-demand availability makes it more valuable because a creator’s work is being accessed and enjoyed more often and at-will, just as with any interactive streaming service.

“The rules of the game are clear, yet many platforms and app developers are part of a concerted effort to normalize not paying music creators properly.”

Additionally, any time music is matched with video, or ‘synchronized’ and saved, a synch license is necessary in addition to any performance license. The country of origin of the stream or performance makes no difference. The necessary rights must be secured for every territory in which the stream can be viewed, i.e., wherever the audience is listening or watching.

While this licensing framework may seem complicated to those outside the industry, in reality, streaming services often negotiate direct deals with music publishers that grant both synch and mechanical rights, often for multiple territories, and sometimes even performance rights, simultaneously. This licensing system has remained the same since the arrival of livestreaming, and indeed long before; it is only the popularity and profit margins of livestreaming that have changed.

The rules of the game are clear, yet many platforms and app developers are part of a concerted effort to normalize not paying music creators properly. They claim the multiple rights involved are cumbersome and clearing music with many publishers is time consuming. This is a smokescreen for the very real race-to-launch that these companies engage in, which puts songwriters’ rights and the royalties they have earned on the back burner.

We’ve seen this before so we know what’s at stake. The music industry just emerged from the rocky transition to properly monetize simple audio streaming, and giant tech companies like Spotify and Amazon still do not pay songwriters anywhere near what their songs are worth. Meanwhile, music has never been more valuable. It is often the gateway to engage users on multifunctional platforms like those designed for social networking and gaming – platforms that garner acquisitions and produce IPOs worth billions.

The evolution in offerings is happening fast. Where Pandora once played algorithmically designed playlists for users, today those users often want to make their own playlists. The walls between creators and users have come down and consumers expect to speak directly to the musicians behind their streamed songs in real time.

The interactivity is key, and technology companies know that giving fans the ability to engage is essential to their bottom line, which depends on keeping you engaged with their app as long as possible. Facebook says that its data reveals that “viewers comment ‘more than 10 times more on Facebook Live videos than regular ones.’” As Wired reported, “Part of the fun of live videos, after all, is the real-time interaction – be it with questions, opinions, or just getting a chance to tell your favorite musician, ‘Wow.’”

“It is critical that the industry stay on top of properly licensing this next wave of integrated platforms before it is again fighting to be paid for something it helped create.”

The boom in this layered experience is well underway. As Billboard summarized, “Spotify appears to be working on a “virtual events” listing, although this may or may not include broadcasting those events. In India, streaming service JioSaavn has partnered with short-form video app Triller to regularly integrate its videos from top artists and songs on the JioSaavn platform. And late last month, London-based virtual reality concerts company MelodyVR bought ’90s file-sharing software-turned-streaming service Napster in a surprise $70 million acquisition, with plans to create the ‘first-ever music entertainment platform which combines immersive visual content and music streaming.’”

In order to avoid repeating the past – where songwriters were forced to sue for royalties clearly owed to them – technology companies must get this right the first time. Performance Rights Organizations (PROs) including ASCAP, BMI, SESAC and GMR are tasked with ensuring performance rights are properly acquired for new platforms, but livestreams involve much more than just performance rights. PROs need to help prevent abuse by those claiming they are covered simply by performance licenses when their use of music is far more extensive than, say, music being played in a restaurant or bar, by communicating clearly that a PRO license is only one part of the licensing process.

As technology companies dive deeper into the burgeoning livestreaming space and unlock all it has to offer, it is critical that songwriters see their share of that entertainment value. Not doing so promises that this next phase of music consumption will be even more turbulent than the last. While we have only scratched the surface where livestreaming will go, tech companies cannot gaslight the songwriters they rely on by claiming confusion when it comes to securing the most basic rights. It is critical that the industry stay on top of properly licensing this next wave of integrated platforms before it is again fighting to be paid for something it helped create.

 Music Business Worldwide

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