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

[Manon Ress]

From: Peter Jenner <pjenner@sinman.co.uk>
Date: July 5, 2006 7:11:34 PM EDT
Subject: Re: [A2k] Neil Leyton's report on TACD creative communities
and consumers

Manon,
Can you put this up.
First let me say that I speak in a personal capacity though I try to
analyse
the situation from the perspective of my members' clients' interests.

Neil's position is passionate and I agree with a lot of
it ,however.......

The four main streams of income for a music recording in the analogue
world
make good sense in that world. There are problems with the
administration of
the collecting societies and in the relative market power of the
major multi
national corporations and the rest of us. It is clear that by now the
system
has been rigged to reflect their economic power and their virtual
control
of the market. They have set the agenda and written the legislation,
but it
still has some coherence and sort of worked.

But there is a clear difference between an underlying work and the
artists
who interpret that work. It has only been in recent history in some
societies and genres of music that most records are substantially
written by
the same people who make the recording. But even within that sector the
writers of the songs may only be a part of the group of performers on a
recording of that song. It is also my view that the distinction
between a
sale/mechanical and a performance of a recording makes sense in the
analogue
world, and that these four main streams of income can be dealt with
reasonable easily, both on collection and distribution (though I have
plenty
of problems about the division of the spoils).

The problem occurs in the digital domain where the distinction between a
performance or a listen to a song and buying or owning it is almost
impossible to define. Clearly someone who downloads 10,000 tracks
does not
have time to listen to them all, and only a few of them will achieve
a real
place in the downloader's life. When a download becomes the best way of
delivering a performance to be listened to (podcasted radio
programming for
instance) it is a nonsense to treat it as a substitution of a
physical sale.
Equally a bought download is often in effect performed in order to
get it
delivered to the consumer.

The other problem is that of territoriality. The worldwide copyright
system
is structured within distinct diverse national legal and collection
regimes
but which have evolved a pretty efficient way of dealing with each
other as
long as everyone plays by the same rules. In the online world this
system is
breaking down. The crisis is manifest in the fact that weekly P-2-P
exchanges of files exceed several years worth of I-tunes downloads. To
deliver a European wide service of music at the moment requires so many
clearances and negotiations and hence uncertainty that few who have good
ideas pursue them when they find out how difficult the whole business
is.
This means that the consumer does not get the range of musics and
services
that they would probably like at an affordable price and which the
technology could deliver. At the same time the creators of that music
are
not able to monetize the obvious desire of the consumers to access
the huge
and varied ranges of music that could become available at such low unit
prices. It is hard for me to see how this future can work without
'one-stop
shops' for the distributors, provided by a collection society system
that is
open and transparent and regulated and truly multinational in their
operations, and which rewards fairly all the creative contributions ,
wherever they come from. The current societies leave a lot to be
desired but
the example of the best systems , governance and organisation should be
followed to all societies and be firmly regulated for the collective
benefit
of us all. Cars need roads to be built and paid for, which need
rules, road
signs, maintenance and so on.  Music on line needs much the same.

The challenge of resolving these issues requires a huge restructuring
of the
way that generations of musicians and music professionals think and have
developed how they charge for their services. But we are like
plumbers who
discover that pipes are no longer required to deliver water, or
blacksmiths
when people started buying cars. People still need water, and to
travel, and
they still want to have music in their lives, but how they get it and
from
where and from whom is going to radically change.

Stating the problem is relatively easy but finding a solution which
delivers
to the consumes what they want (music at a reasonable price), and to the
creators (writers and performers and the people who help it all get
together) what they need- decent living and a chance to develop and
perfect
their skills, is incredibly hard. I am sure we will get there in
time , but
it will not be easy because many people will lose their livelihoods , or
their sinecures, and they will fight to keep their way of life. It
will be a
struggle , but patience and understanding are required as well as
vision and
conviction, but perhaps most of all a modest realization that we do
not have
all the answers, even if we are asking the right questions. Meanwhile
the
technology still develops.


What is really unbearable is seeing the old ideas and the powerful
industrial dinosaurs making it so difficult to deliver a future that
could
be of benefit to the creators and the public, because of their vested
interests.

Its a great dialogue.

Cheers,
Peter Jenner


> From: Manon Ress <manon.ress@cptech.org>
> Date: Wed, 5 Jul 2006 15:40:26 -0400
> To: a2k discuss list <a2k@lists.essential.org>, ip@tacd.org
> Subject: [A2k] Neil Leyton's report on TACD creative communities
> and consumers
>
> 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    The real music industry
> Super-Star system    Artist Driven
> Mega sales    Critical acclaim & some sales
> High expenditure    Low Expenditure
> Difficult to recoup    Easier to recoup
> Harder to sustain careers    Life-long sustainable careers
> Market driven    Fan-oriented
> Protectionist    Encourages sharing
> Top down    Bottom up
> No artist creative or biz control    Artists-first approach
> Exploitative    50/50
> 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    New Artist Pro
> Music publisher-controlled    Artist/composer controlled
> Analogue era playlisting    New net-based sampling system
> Tends to compensate mega-hits    Balanced distribution of royalties
> Incompatible with new models    CC compatible
> Controls copyrights    Administers collections of rights
> Exclusive    Non-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.]
>
> Digg this story
>
>