WIPOD – Page Points: Transcript of Episode 25

Intellectual Property and the Music Industry

Hayleigh Bosher

I think that if you look at the more successful artists, whether that's ones signed to labels or independent, they do know their copyright and they run a business. That is music, not just making the music. And I think that's the real difference between a musician or an artist that understands that the music business is a copyright business. That's ultimately how it works. And you're in the business of making something and then managing the rights in that. And that can be the difference between whether this is a hobby for you or a career.

Lise McLeod

Hello, Page Points listeners. Today’s guest is Hayleigh Bosher, author of the book entitled ‘Copyright in the Music Industry, A Practical Guide to Exploiting and Enforcing Rights’. And we’re going to discuss its second edition.

Welcome to the podcast, Hayleigh.

Hayleigh Bosher

Thank you so much, it's a pleasure to be here.

Lise McLeod

I look forward to what you have to share with us today. Your book begins with the fundamentals of copyright in the music industry. From your perspective, what makes music such a unique subject for copyright law? And why should researchers and policymakers continue to pay close attention to developments in this area?

Hayleigh Bosher

That's a very good question. So I think that I love doing copyright in music because it's such an interesting area that has so many different layers to it, where you're not just thinking about copyright in a theoretical way, you have to think about it in a really practical way, like how is it actually going to play out in the music industry? And the music industry is a bit of a mystery when you first start to engage with it because it operates in its own sort of unique little universe, which is, if you think about it, quite strange, because music permeates every area of all of our lives a lot of the time.

So music is everywhere, and we're all consuming music all of the time. And we have decades of research now that show that music can enhance our lives physically, emotionally, socially, and yet copyright in music seems like a niche subject in a strange way. So that's quite contrasting. And I feel like the layers to it make it really, really interesting, but also a perfect sort of testing pot for copyright, its functionality and its efficiency, and how that might play out across all of the creative industries. I find that a lot of the issues that I look at in copyright in the music industry also apply across publishing and film. So it can also be an entry way into broader issues, not just specifically to do with music.

And I think that's probably speaks to the second part of your question about why policymakers should be interested in copyright in music is for that exact reason. I think partly because of the value that music brings to our lives, not just economically, but also from a health perspective, from a social perspective, from a community perspective, but also that it is this microcosm in terms of the issues and challenges that are facing copyright in general, I think it's a very good concentrated area that then you're able to understand how copyright works across the creative industries. And obviously there are nuances and differences in the other industries as well. But a lot of the central themes cut across the culture and creative industries because music cuts across everything in our lives.

Lise McLeod

What do you think musicians most need to know about what copyright actually protects - and maybe, what it doesn't protect?

Hayleigh Bosher

That's a really good question. And I think from my experience of working with musicians and songwriters and artists in the music industry, I think it never ceases to amaze me how little they know and how much they can function in the industry without, you know, throughout their career, without knowing. But I think that if you look at the more successful artists, whether that's ones signed to labels or independent, they do know their copyright and they run a business that is music, not just making the music.

And I think that's the real difference between a musician or an artist that understands that the music business is a copyright business. That's ultimately how it works. You're in the business of making something and then managing the rights in that. And that can be the difference between whether this is a hobby for you or a career and whether decisions that you make about the management of those rights are going to be fruitful for you in the long, short, and medium term.  So it's not really a specific thing of like oh they need to know that copyright lasts 70 years. It's that copyright is an essential part of their business and that they really need to understand what their rights are and how to manage them in a way to ensure that they have control over their work and that they’re fairly remunerated for their work and they're making informed decisions about those two things in particular.

Lise McLeod

In your experience Hayleigh, what are the most common decisions made by musicians that might become the source of disputes? And how could those decisions might have been made differently earlier on?

Hayleigh Bosher

I'd say one of the most common, which you might not expect to be the answer, is about working with other people. So again, it comes back to the management of the copyright and often the musicians want to just get into the studio and make the song and write the song and that's their craft and their art and that’s what they're there to do. And the management if the copyright is an afterthought, if not a thought at all.

And that can really lead to problems down the road when people are then unclear about who owns what or what portion of any work that you've created together and who's entitled, if any, to that work.

And so, a really common thing that I see is musicians and artists, you know, not doing what we call their split sheets, which is where they literally write down like the split of the song, the share of the royalties that go between the songwriters, between the producers. There's lots of people that work on a song behind the scenes, not just the person you see performing or even just one songwriter is really rare these days.

It's quite common to have quite a lot of people involved in the creative process and not having kind of your paperwork in order and your contracts in order, particularly your split sheets. It means that it's very difficult for everybody to get paid, first of all, because you need the splits agreed and to add up to a hundred in order to get paid from your collecting society. But also then it can lead to fallouts and disputes down the road where people are then arguing over who owns what, which could have been completely avoided if you had just decided at the time.

It's an uncomfortable conversation to bring up unless you're used to it. But what I always say to the musicians is you just get into the habit of doing it, into the practice of doing it and you become more confident and then it becomes completely normal. At first it seems like oh I don't really know what I'm talking about and like is it kind of awkward or am I going to ruin the mood? And there is probably a right time. To do it, you know, not in the middle of the creative flow, but once you get completely used to it and if you ask any like super successful artists or musician, they're really on top of that and sometimes that will be agreed even before they step into the studio.

So it is something that you see successful artists and songwriters doing, often because they've learnt the hard way. It's gone wrong one time. And then once that happens, you learn better the next time.

Lise McLeod

What have landmark music copyright cases taught us about creativity? Was there a particular case that changed your own thinking while writing the book?

Hayleigh Bosher

That's a good question. So, I think there’s probably two cases that come to mind. One in the UK was the Ed Sheeran and Sami Switch case which was a copyright infringement case where there were two songs that do sound similar at points and my favorite part, that seems like a strange way to phrase it, but before the final trial there was a pre-hearing where they decided whether the person who was saying that their song had been copied by Ed Sheeran, Sami Chokri, their legal team wanted to bring what they call similar fact evidence to show a pattern of behavior of Ed Sheeran that he's always copying because they had evidence that he had previously settled other songs.

So he'd written a song and then ended up paying part of the royalty later on. To some previous songs. And that was allowed, which I thought at the time was quite surprising. But then in the final trial, what they found was that that wasn't at all what had happened. Sometimes people settle a case because they just want it to go away. And, you know, he might've been on tour at the time and it was, you know, going to court is a really last resort. It's very expensive and time consuming.

And actually, ironically, the judge said, in particular, the one that related to the same song was in fact at all required for him to pay this royalty share. And then he ended up getting all of the song ownership back.

And what I really like about that story is that it just goes to show you can make wrong assumptions about people and their decisions. He only settled cases. He was never found guilty in a previous dispute. So there wasn't case law against him. It was just disputes that settled outside of court. And I think it was a really victory moment for Ed Sheeran to be able to show that actually I don't have that pattern of behavior, that copying at all. There were other reasons why people would settle. And the most important message to take home from that case is that just because two songs sound similar doesn't mean there's actually been any copying.

Because copyright's not a monopoly right. It means what it says on the tin, you know, copyright, the right to stop someone copying. If you've never heard a song before, it's not possible for you to have copied it. And that's what they found in the end of that case, was that Ed Sheeran had never heard the Sami Chokri song before so he couldn't have possibly copied it.

There are only 12 notes to choose from. And there's a lot of limited choices in music creation because you are usually operating within a framework. It's a pop song, therefore it's going to have this typical structure. And so things are going come out similar sometimes. But you have to remember that just because they sound similar, they might not be an infringement. And I think that was a really powerful message to come out of that case. And I do talk about that case in detail in the book.

The one that I think whilst I was writing the book was ongoing is the Getty Images case that happened also in the UK. And this was an AI case, the first one that we had here. And then a week later, there was one that came out of Germany and that's the Gamer case. And it was just really surprising to me the outcome of the UK judgment that it wasn't secondary copyright infringement. And then one week later the German court had said it is infringement in their case.

So there were different cases and obviously copyright is decided on a case-by-case basis and it's really important to know that and to understand the differences. But essentially the underlying law and the question was the same, but what was different was the statutory interpretation of that law and the application of it to AI, which is obviously presenting a new context for this copyright law that was written before AI existed. So I was very much trying to keep up with that whilst writing and the Getty case is now on appeal. So we will wait to see the final outcome of that. But the analysis of the case I was writing at the time, when I was writing the book, it was happening at the same time.

Lise McLeod So the final outcome of the case could be covered in the third edition?

Hayleigh Bosher

Yes, exactly. I mean, for me, the second edition came five years after the first edition, so a lot had changed. We'd had the European copyright directive, the UK had left the EU, we had the streaming inquiry here, we've had all this AI development. It's really a whole new book. It's not just the same book with a few updates. And that's how I like to do it.

I don't want to just give the same book with updates of case law. I wanted it to feel like a whole new book and that you're really getting something out of it even if you do still, you have the previous edition. It's much longer and it's much more in depth because also I have five more years’ experience of working in the music industry. I've been working in policy with the UK government and that's all informed what I've put into the second edition. So I'm really, really pleased with it. I may do a third edition but not soon. I would wait for another five years maybe, or at least for some more changes so that it's a worthwhile third edition.

Lise McLeod

You devote chapters to the UK Music Streaming Inquiry and the Digital Single Market Directive. Looking beyond the legal detail, what broader lessons do these developments offer to modernize copyright in the digital economy?

Hayleigh Bosher

So, yes, as I just mentioned, like these are some of the updates that we saw during that five years, it was the EU copyright directive. And what's really interesting if you read those chapters side by side is there are lots of parallels, the things that the music creators and their representatives were advocating for in the UK streaming inquiry were essentially a lot of the things that were delivered by the EU Copyright Directive.

And so we could see the sort of comparison where there was a lot more compromise from the UK streaming inquiry and the outcomes were not currently legislative. They were kind of industry agreed principles that have been taken forward. And at the same time, the kind of ideal outcomes for the music makers and their organizations were implemented across the European Union, which obviously it takes years for that to actually be able to see the effect of it before it's transposed into local law and then actually seeing some outcomes from those changes. And there has been one study done that I talk about in the book that shows some of those outcomes were very helpful to a few people, but not maybe as dramatic as some of the industry people were so concerned about these changes that they were going, you know, be economically damaging to their companies.

But the research has not shown that at all. It's shown that the number of people using those new rights provided by the copyright directive is actually relatively low. But it was the first time that has been studied, so it may be that it rises. The next time because people may be more familiar with it, or it could just be that these interventions are there to help leverage the situation. It shouldn't always necessarily go all the way that you have to enforce that right. It's more about being able to, you know, at the core of it, the music maker is often in a disadvantaged position when comes to contract negotiation with a big company with more resource. And leverage, so things like contract adjustment and right certification, equitable remuneration were ways to try to adjust that balance slightly. And I think the principles that came out of the United Kingdom streaming inquiry were aiming to do the same things, but they essentially didn't go as far as what we saw in the Copyright Directive.

So, I did those chapters of back-to-back and I think it gives you a kind of nice understanding of the similarities and differences between the approach, but this is all very, very new. We're now currently doing a survey of the UK principles to see how effective they have been at making things better for UK musicians, artists and songwriters.

And I guess the EU study will continue and then in a few years we'll be able to have more data to show which approach, if any, is succeeding. And I think we should learn from each other. If the UK principles turn out to be super effective then that's really helpful and great, but if there are things that still need adjusting and we look to the EU and see that the regulation, what the directive provided has been effective, then we can learn from that.

Lise McLeod

Alongside artificial intelligence, you discuss deep-fakes, personality rights, blockchain, and NFTs. Which of these developments do you think might have the greatest impact on the music industry in the next five years? Big question here.

Hayleigh Bosher

That is a big question. Yeah, so the book's kind of set out in parts, and this is all part five, which is kind of the current and future developments. So we look at all the kind of recent and developing technology. I think that the answer is probably AI, being that it's taking over every aspect of our lives currently. And it's, I think, the biggest threat to the music industry right now when maybe things could be clearer from a legal perspective about how, when copyright materials are used, with consent and with remuneration.

Deepfakes are another big concern, but I suppose in a way a deepfake is a type of AI that probably comes under the same umbrella, broadly speaking, but the thread that binds them both is that musicians, artists, performers, rights holders, need to know that they can still control the use of their work even in an AI landscape and be fairly remunerated for the use that work where they do give permission. I think those are the two biggest questions facing the music industry right now.

Lise McLeod

Is there an additional topic or a specific element in your book that we haven't yet covered that you'd like to highlight now?

Hayleigh Bosher

No, I think you've asked some really nice questions. I would just add that I've written it in a way that's not typically academic. I'm trying to make it very accessible so that musicians, artists, songwriters can pick up this book and learn more about their rights. But what I'm also finding from feedback from the first edition as well is that it's very useful to also copyright students, law students, legal academics who also want to understand more about the music industry.

So the learning kind of goes both ways because it's written in a way that is not presuming any knowledge on behalf of the reader in terms of copyright or how the music industry works. And the second edition, I would say, is more, has a stronger policy focus. In the first edition, it was kind of more focused on these are your rights and this is how you manage them.

And I think the second edition has matured into a conversation that's like, these are you rights, this is you manage them, but also let's think about them critically and ask whether they're fit for purpose, whether they need updating, and whether it hopefully also enables people not to just understand the rights around music and how to manage them, but also engage them in the policy and lawmaking process and feel that they can confidently, you know, engage in a policy consultation or engage with a community group that represents their rights or just send an email to their local MP.

The idea is that it also has this demystifying of the policy process as well. As continuation of what we were doing in the first edition, which was, you know, just kind of trying to explain these are what your rights are and these are the things you need to think about and how you might consider managing them.

That's all still there, but it's sort of, I feel like taking it to the next level and being like, okay, now that you know your rights and you're managing them, let's think critically about them as well. And understand that, you now, copyright is always evolving. It's not something that's static. And we should be part of that conversation all of the time.

Lise McLeod

Our listeners can find a copy of the book in our knowledge repository. Where can they learn more about you and your work? Where's the best place to find you?

Hayleigh Bosher

So, I'm really excited that I have a new season of my podcast coming out. It's called: ‘Who's Song Is It Anyway?’, and it's available on all podcast platforms. I've done seasons before. There were three previous seasons and it was just all audio. This particular season is now video as well.

So the primary place to check it out is on YouTube because I made a big effort. There's a really nice set and... I'm really pleased with it. So it looks great, but you can also just listen anywhere. So that's a really nice entry point into my work but in that, you'll also find all my links. I have a website, www.hayleighbosher.com. And that's where you can find all the links to my books and research, the podcast and some blogs, some thoughts, anything copyright related that you might be interested in, and you could obviously reach out if you have any questions.

Lise McLeod

Thank you Haleigh, I really appreciate you taking the time to spend with us today to share your book and your knowledge.

Hayleigh Bosher

Thank you so much. Honestly, it's a real pleasure to just speak about your book because it's a long journey, you know, writing a book and even from when you write the first manuscript to then the wait time of when it actually gets published. So it's a real pleasure to actually be able to talk about it. And I hope that people enjoy it.

Lise McLeod

And to you listeners, until the next time, and the next Page Points, bye for now.