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Copyright & Regulation

Susan Cotchin (Good Neighbour Rights): ‘Australia’s decision to limit the application of Art. 15 of WIPO’s WPPT has impacted Australian artists in a big way’

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While Europe is still grasping with the impact of the RAAP case, another part of the world, Australia, needs a fix too. Since the country has limited the scope of payments of neighbouring rights to performers, Australian artists are unable to collect their royalties overseas due to the lack of reciprocity.

In this opinion piece, Susan Cotchin, Managing Director and co-owner of Good Neighbour Rights, argues that time has come for Australia to revise its policy and adopt in full Article 15 of the WIPO performances and phonograms treaty signed in 1996 (WPPT). This would at last provide performers with with the full range of neighbouring rights and also enjoy the full benefits of reciprocity.

Down Under, sound recordings are protected, but there is no is “mateship” when it comes to paying performers from across the globe. If the notion that ideas should be shared to “Promote the Progress of Science and Useful Arts” (U.S. Constitution., Art. 1, § 8, cl. 8), tickles the publics fantasy, if only to pause the monotony to indulge in the artists’ genius, surely giving people incentive to be creative is for the greater good of humanity?

We understand this when it comes to compositions and books, but where does a sound recording fall within this realm, and what is a sound recording other than data or a piece of plastic without its contributors?

If you are a non-Australian recording artist, you may not be surprised by the fact that Aussies don’t like to pay performers when a recording is played in public either via radio/in a club or shops, unless you are one of its citizens or residents. Even then you will be paid on an ex- gratis basis, given one year to claim, but only if you are a featured performer. Australia’s session musicians however, will be left out in the cold.

Enforce equitable remuneration for public performance

To clarify, neighbouring rights are distinct from the “making available” right labels rely upon for streaming platforms, as it is based upon an equitable remuneration for public performance, where performers are compensated for assigning those rights. Equitable remuneration was born from this issue guarantying an allocated percentage that cannot be transferred.

The fact that Australia’s licensing body PPCA pays any heed to Australian performers, given there is no legal basis for a payment and featured artists are paid on a voluntary scheme, this could be seen as an act of benevolence. Yet whilst the rest of us are shouting for equitable remuneration to be introduced into Australian legislation, they are silent.

To the contrary, the UK’s licensing body PPL, a private entity set up in 1934 by EMI and Decca Records, have their eyes firmly set on Australia changing its legislation. PPL stipulate on their website they do have a reciprocal deal with Australia on the rights holder side, and despite receiving a 100% share of those royalties when their UK recordings receive airplay on Australian radio, their fight may be versed in picking up the cheque for non-UK foreign performers registered directly to PPL on a worldwide mandate, or for recordings that sit outside of this reciprocal deal with PPCA.

Damage on livelihoods

This lack of reciprocity in relation to neighbouring rights, stemming from Australia’s decision to limit the application of Article 15 of the WIPO performances and phonograms treaty signed in 1996 (‟WPPT”), which agrees to remunerate performers for their contribution to a sound recording, has impacted Australian artists in a big way.

Many countries, the most notable being the United Kingdom, took a stance in 2014 to stop paying Australian performers. As a fellow recording artist, an Australian citizen and a neighbouring rights know it all, commencing in this specialist field in the UK with PAMRA in 1999, before setting up two neighbouring rights companies, one in London the other in Melbourne, with a patchwork of artists from a plethora of countries including the US, Barbados (Beyonce and Rihanna), the UK (Tom Jones and Radiohead) and Australia/New Zealand (Crowded House), and lesser known performers from many other territories, I have seen first-hand the damage this has had on livelihoods and on music communities as a whole.

Over these 23 years, I have watched a $500,000 cheque from a big hit in the UK, dwindle down to $1.32. I have seen artists that received big pay packets, now owing income to PPL and session players receiving only a session fee of $300 despite contributing to a massive hit, played multiple times a day on radio across the globe, and question why they cannot afford to put fuel in their car. Once upon a time a session musician could have earned a decent wage a from a hit in UK.

Action needed from Australian legislators

If Australian legislators reviewed their position on the (“WPPT”) Article 15.1 which stipulates ‘Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public’ they would fall in line with countries such as the UK, South Africa, South America and the EU.

Giving power and a voice to the individual rather than the monopoly dictating the status quo, should be a rite of passage for a musician, especially if giving away your rights leaves you with a smaller wage than a junior starting out at a fast-food store, after 20+ years of honing your craft. You may get your 15 seconds of fame, but soon you’ll be calling me at 8pm on a Sunday night asking how I can find royalties for you.

I for one am horrified with the idea of a world where people do not strive for their dreams or realise their musical potential, because they won’t be able to pay their rent or put fuel in the car. Paying those in our industry feeds the music ecosystem and enables viable careers for those who dedicate themselves to their art, encouraging those creative souls to dream. Perhaps in doing so, the rest of us can share in their dream and illuminate our own lives.

(Picture under license from AdobeStock)

By Susan Cotchin

Emmanuel is a Washington, DC-based freelance journalist, blogger and media consultant, specialising in the entertainment business and cultural trends. He was the US editor for British music industry trade publication Music Week. Previously, he was the editor of Impact, a magazine for the music publishing community (2007-2009), the global editor of US trade publication Billboard (2003-2006), and the editor in chief of Billboard’s sister publication Music & Media (1997-2003).

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