[A2k] Neil Leyton's report on TACD creative communities and consumers

[Manon Ress]

Paris TACD conference

http://www.p2pnet.net/story/9217

p2pnet special: Canadian indie musician and label owner Neil Leyton
was a panelist at the Trans Atlantic Comsumer Dialogue (TACD)
conference on New Relationships Between Creative Communities and
Consumers, held in Paris, France, on June 19-20.

The idea was to bring people together to talk about relationships
between creators and users, and identify common interests and new
opportunities to collaborate.

Discussions explored new and existing social and business models for
the intermediary between the creative person and the consumer and in
particular, the meeting looked at models and relationships,
recognizing the creative community's need to earn a living, the
interest of the public in gaining affordable access to works, and the
interests of both parties in supporting an environment for creativity
and innovation.

Leyton's group was moderated by Anna Fielder of the National Consumer
Council, and included:

Christian Paul, Deputy of the French Parliament
Jenny Toomey, The Future of Music Coalition
Peter Jenner, International Music Managers Forum
Aziz Ridouan, Audionautes
p2pnet is proud to be able to bring you Neil's special first-hand
report of the conference. >>>>>>>>>>>>>>>>>>>>>>>>

Trans Atlantic Consumer Dialogue conference
By Neil Leyton

The TACD is a forum of US & EU consumers' organisations which
develops and agrees to joint consumer policy recommendations for the
US and European governments.

As one of the two directors of Fading Ways Music, a Canadian-started
indie label, I was invited to speak on the Recorded Music panel and
here are a few thoughts on the processes, and the challenges, facing
independent musicians in the music industry of the 21st digital century.

 From an artist perspective, it's very interesting, first of all, to
note that, unlike the so-called 'artist groups' lobbying our
governments so heavily for stronger copyright, but which are in fact
using artists' name to facilitate the protection of the business
models of the major labels and major publishers, multinational
corporations, et al, in the music biz, the TACD actually invited real
artists to the discussion table.

As a member of the Canadian music industry, not once have I been
invited to such an open discussion within my own community, having
instead to struggle to get my dissenting voice heard within a
monopolized community.

Every self-aware indie artist knows the IFPI, RIAA, CRIA, BPI, and
even most rights societies these days serve only the interests of the
industry and not the interests of real artists. Score 1:0 for the
consumers' groups, then!

I won't, however, pre-suppose you believe the tired old portrayal of
the consumer as 'pirate'. That's pure industry spin and while it
makes a catchy soundbyte for mass media outlets friendly to the
protectionist agenda, in reality, consumers and fans of today aren't
doing anything new that we haven't been freely doing for generations
past.

Sharing our culture.

Yes, we have new digital tools nowadays. But that's no valid reason
for changing the laws, as the WIPO copyright treaties have done, of
the digital realm compared to the old analogue one. Copyright was
meant to stop one publisher from copying and selling another's
commercial work, NOT to stop the public from spreading and performing
the work non-commercially.

We live in an age of distortions and abstractions where quick and
easy 'facts', manipulated figures and statistics devoid of all
reality =96 sometimes, made up by PR companies! - serve the interests
of the multinationals.

The public always has, and always will, taken whatever opportunities
are available to access culture. The challenge to the industry, then,
lies not in the criminilization of ever-increasing numbers of fans,
but in the monetization of the new digital reality in ways that don't
harm the interests of artists and citizens.

My two days in Paris at the TACD workshop were an excellent example
of how some of these goals can be achieved, and, when the proposed
treaty is drafted, it will be an articulate, sane counterpoint to the
corporate music agenda that's wearing thin, even from the stand-point
of politicians in France and Sweden, to name just two countries who
are considering a reversal of course in the Protection vs Access debate.

The fact so many consumer groups have come together, realizing the
need to bring artists on board rather than antagonize them, as the
forces running the current music industry are doing, threatens to tip
the scales of the debate. The recent rise of musicians' voices
against the industry lawsuits, the CMCC group that has been created
in Canada, for example, is a clear indication that the times they are
indeed a-changin'.

The people at the top of present music industry grew rich and fat by
largely appropriating public domain oral musical traditions (ask
Dylan), establishing strands of income under an artificially divided
copyright which remunerates 'master' recordings separately from music
'publishing', and arrogantly presuming that a song actually 'belongs'
to someone.

However, the music industry of tomorrow promises to be a far more
equitable place where more and more artists can earn a living while
the number of super-stars dwindles.

In fact, one could argue that already, in today's world, we see fewer
and fewer big stars. I don't think we'll ever see another Elvis
Presley, or group such as The Beatles.

Those who refuse to accept these radically different economic times
we live in should pull their head out of the sand. I believe there's
an argument to be made for a split between the present biz, which I
usually refer to as the "entertainment" business, and the real music
industry, which is already largely made up of smaller, independent
companies whose owners are artistically rather than merely profit
driven. And this is an ethical as well as practical split, as my
chart below indicates:

ENTERTAINMENT INDUSTRY vs the real MUSIC INDUSTRY

Entertainment Industry=09The real music industry
Super-Star system=09Artist Driven
Mega sales=09Critical acclaim & some sales
High expenditure=09Low Expenditure
Difficult to recoup=09Easier to recoup
Harder to sustain careers=09Life-long sustainable careers
Market driven=09Fan-oriented
Protectionist=09Encourages sharing
Top down=09Bottom up
No artist creative or biz control=09Artists-first approach
Exploitative=0950/50
What this means, and what formed the essence of my presentation in
Paris, is:

The public doesn't always need to be on the defensive when it comes
to dealing with the industry's legal threats and DMCA-style
extortion. The TACD's Paris Accord, when fully drafted, can instead
point the way to the creation of a DRM-free new music industry
that'll improve the cultural lives of both artist-songwriters and the
general public, who are in turn are also increasingly able to create,
rather than be limited to the role of unthinking consumer.

One problem I illustrated during my panel is the problem of the
present rights societies, for example.

In Canada, SOCAN distribution of the private copy levy is a typical
example of how the present model of the entertainment industry feeds
the rich and starves the poor. Money is distributed according to two
criteria: Soundscan sales, and commercial radio airplay.

This means independent artists, selling their records by the
thousands through small indie shops that don't Soundscan (log
barcodes and pay a yearly fee to Soundscan Corp for the privilege of
communicating those sales to them) or off the stage, on tour, fly
completely under the industry radar, as we've been doing for years.

Secondly, most indie artists are played on community, not commercial,
radio - centralized play-lists Clear Channel style, and the
traditional practice of payola, making it inaccessable to indies. In
practice, that means every time our fans buy blank CDRs to burn the
mp3s we want to offer them via Creative Commons licenses - and there
are thousands - the bigger publishers get a cheque.

We, however, get nothing.

But enough is enough. The time has come for a new artist-based global
rights society, a non-exclusive, non-protectionist, transparent body
that's artist- and not publisher-controlled. It'll assist in the
commercial collection of fees due to artist-owned works whose
copyright hasn't been artificially splintered into four streams.

While managers with years of experience might advocate the changing
of the existing rights societies (Peter Jenner, International Music
Managers' Forum, and manager of Billy Bragg), from within, remaining
optimistic about their role, I believe there are plenty of artists
who'd be ready to withdraw from the system altogether, pointing out
to governments the anti-trust monopoly nature of these organisations
in the process.

Existing Pro's=09New Artist Pro
Music publisher-controlled=09Artist/composer controlled
Analogue era playlisting=09New net-based sampling system
Tends to compensate mega-hits=09Balanced distribution of royalties
Incompatible with new models=09CC compatible
Controls copyrights=09Administers collections of rights
Exclusive=09Non-exclusive
The TACD workshop opened with the "setting the stage" panel, where
Mr. Cervera Navas from the European Commission called for the need
for more data rather than unsubstantiated arguments (such as those
I'm making, perhaps).

Peter Jenner pointed out that not everything relevant to the argument
can be measured; and accused the publishers / industry of having
hijacked the debate. That much was obvious in the industry jargon
that littered WIPO's Jorgen Blomqvist's opening. While claiming to be
entirely open to new business models, he proceeded to describe
Creative Commons as "giving away" rights - a common music industry
misconception many industry insiders (for example David Ferguson's
Music Week UK articles published last year) have worked hard to
perpetuate in a sad attempt to scare artists away from even
considering CC.

Blomqvist went on to actually suggest publishers should also be
involved in the discussions, talking of "balance" whilst perverting
the very essence of the word.

Fortunately, he wasn't seen much for the rest of the two-day
conference; and Cervera Navas' repeated promise of giving out his e-
mail address so participants could share their views with him
remained empty.

He did, though, draw a few laughs when he also asked for proof that
DRM can be damaging.

Rootkits, anyone?

For my part, I spoke alongside Peter Jenner, Jenny Toomey from the
Future of Music Coalition, Aziz Ridouan from the French Association
des Audionautes, who proposed a global license for the digital
domain; and French Parliament Deputy Christian Paul, who's also been
working towards the legalization of p2p in France with the
establishment of such a global license.

Whether the license would be compulsory or opt-in was up for
discussion, but everyone who was left in the room by that point
pretty much agreed any such scenario would be preferable to the
criminilization of music fans of all ages - and many sons and
daughters of politicians, lawyers, and music biz execs.

The madness can only go so far; and the TACD workshop went a long way
towards the restoration of sanity to the copyright debate.

The speakers on my panel were asked five questions. I reproduce them
below along with my answers:

1) From the point of view of creative persons and the public that
enjoys listening to recorded music, how best to support both the
livelihoods of songwriters and performers of music, and access to works?

The livelihoods of songwriters and performers of music should be
improved along with access to works; the two are NOT mutually exclusive;
For up-and-coming artists, access to works in the form of free
downloads is very often key to much needed exposure to new audiences
and fans;
For established artists, there's no need anymore for anything to go
out of print - if a work isn't continuously exploited commercially by
the original company that owns the rights to market (masters and/or
copyright), that work should automatically become available both to
the original artist and any new company that wants to market it; on a
simple 50/50 split with original artists and composers;
If a record company or music publisher is not exploiting a work that
is bound to them by contract, there should be legislation forcing the
automatic termination of such useless contracts so that the work can
once again be made available to the public - this in turn would earn
many artists much needed additional income.

2) What are the most interesting new economic models for doing so?

Fading Ways has been experimenting with Creative Commons as a tool
for viral marketing via our street teams of fans;

CC Non-Commercial licences, that allow private copying and/or not-for-
profit remixes, are an interesting proposition;
Other artist-to-fan direct marketing, like support packages in
exchange for exclusive content, are excellent ways to cement
relationships between artists and their fans;
Playlouder DSP merits mentioning as a "walled-garden" legal p2p
system that would track exchanges between users and monetize the
artists accordingly; majors yet to sign on;

3) Should songwriters and performers be protected from unfair
contracts by publishers and producers?

Yes, of course.
Legal assistance in the music biz is not enough; when we have
entertainment lawyers being taught at law school by the head of the
CRIA their education is bound to be incomplete, skewed, and generally
deficient.
A lawyer at a UK conference I spoke at last year actually told me
about how he'd convinced a client (an artist) to sell his publishing
after he'd been instructed that that was the last thing he wanted...
(after criticizing CC for doing a poor job of explaining copyright to
artists), as that was the only way they would get the deal signed;
Contracts should keep copyrights squarely in the hands of the
creators; recording artists should always control their own masters.
Finally, governments should take steps to limit the powers that some
rights societies (collection societies) gain through their extremely
broad writer membership agreements - with some societies, when you
join as a writer, you are actually assigning all your copyrights to
them including your inherent right to non-commercial distribution;
there have been situations where artists have had to pay the society
for using their own works!

4) Can collection societies be transformed?

Wave of UK music biz opposition to new business models like CC was
not encouraging; many "respectable" execs ie, David Ferguson (British
Academy of Composers) printed articles bordering on slander:
misinformative, misleading and clearly ruled by an obstinate fear of
the unknown / fear of change;
Existing PROs tend to favour the already-established writers rather
than independents; ie. SOCAN's distribution of the Canadian blank
media levy according to commercial airplay and soundscan sales
completely ignore college radio & indie CD sales, not to mention
downloads;
A TEOSTO Executive I met in Finland last year was very clear that in
order for these attitudes to change (ie. Acceptance of CC model) they
can only be transformed from the inside, via each Board of Directors
and members demanding change from the inside;
Alternatively, a new PRO for self-published writer-artists is another
possibility for the establishing of a more level playing field for
independents.

5) Do we need new competitive intermediaries?

Not unless they're strictly controlled by artists themselves; such as
under a new artist-run PRO
Fading Ways challenges all new indie labels to adhere to an ethical
50/50 split with their artists, allowing artists full freedom of
motion both creatively and business-wise;
Other new artist and consumer-centered initiatives are welcomed by
the artist community.
New partnerships should be fostered between artists and consumers
groups, such as the BEUC campaign from last October, to advance not
only consumers' lobbying, but also artists' concerns when facing a
self-serving, vested-interest music industry which declares, "our way
or the highway";
Competition is the great leveller of a truly open market. Perhaps
that's why the rights societies want to remain monopolies;
On an appropriate price for downloads, the (questionable?) practice
of the Russia's AllofMP3.com (whether legal or not under Russian law
regardless of the BPI's whimpering lawsuit) is a good example of how
different markets can, and should, price music according to the
public's purchase power.
How do you beat so-called "piracy" in India and China? Sell proper
product at the same price.

For additional info: http://www.cptech.org/a2k/pa/

Neil Leyton - Fading Ways Music
[Leyton founded Fading Ways Music in Toronto in 1999. He's released
two critically acclaimed solo records, "Secret Avenue" and "Midnight
Sun", with his third, "The Betrayal of the Self", due this September.
Last year he started Fading Ways UK with business partner Ashlyn
Eaton, and the labels can be found at www.fadingwaysmusic.com /
www.fadingways.co.uk. The Fading Ways mail-order service is at
www.fwmusicstore.co.uk.]

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************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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