MUSICTANK PAPER - Making Available Communication To The Public - User Interactivity by Fiona McGugan 20.10.15

INSIGHT PAPER
MAKING AVAILABLE,
COMMUNICATION TO THE PUBLIC
& USER INTERACTIVITY
AN ANALYSIS OF THE APPLICATION OF COMMUNICATION AND
PERFORMING RIGHTS TO LICENSED MUSIC STREAMING SERVICES
AND THE SUBSEQUENT IMPACT ON PERFORMERS
FIONA MCGUGAN
OCTOBER, 2015
Contents
Executive Summary ...................................................................................... 3
Authors Note ................................................................................................. 6
Foreword........................................................................................................ 7
About MusicTank ........................................................................................... 8
About The Music Managers Forum And The Featured Artists Coalition ...... 9
About This Paper ......................................................................................... 10
Introduction .................................................................................................. 11
The Shift From Ownership To Access ........................................................ 13
The Development Of Communication To The Public ................................. 16
The Making Available Right......................................................................... 19
Where Does Equitable Remuneration Apply? ............................................ 21
The Implementation Of Communication To The Public, Making Available
And Equitable Remuneration In EU Law .................................................... 23
Making Available And The Interactivity Of Streaming ................................. 25
The Practical Impacts On Performers ......................................................... 27
Recommendations....................................................................................... 29
1. Precision And Clarification In The EU Directive And WIPO Treaty ....... 29
2. A New Deal For Legacy Contracts ......................................................... 30
3. Collective Licensing For The MA Right .................................................. 30
4. Compulsory Licensing For First Reproductions ..................................... 32
Conclusion ................................................................................................... 33
Bibliography ................................................................................................. 35
References .................................................................................................. 38
MUSICTANK.CO.UK | MAKING AVAILABLE | 2
Executive Summary
One of the most prevalent and recurring topics of recent times has been that of
changing consumer behaviour characterised by an increasing shift away from
ownership towards access models of music consumption, specifically streaming
services.
The rate of conversion (too fast or too slow), the price point (too high or too low), and
whether it is cannibalising or stimulating commerce in other areas are just some of the
points of contention between the various parties.
One such area of dispute is the Making Available Right.
Forgetting the front-of-house economics of the streaming model for a moment, it is

important to examine the activities behind the scenes, legally speaking, both pre and
post-digital, to understand fully how the rights of authors and performers have changed
and how they make money from online distribution. This is the aim of this paper.
The creation of the Making Available Right initially at a global level through the WIPO
Performances and Phonograms Treaty (WPPT) and thereafter, the European InfoSoc
Directive, before each individual State implemented it, is a convoluted process.
Its intention was to account for digital works accessed by a user at a time and a place
chosen by them. However, omissions at each stage of legislation are caused by the
uncertainty rooted within the WPPT where WIPO admits that It is understood that [the
WPPT] does not represent a complete resolution of the level of rights of broadcasting
and communication to the public that should be enjoyed by performers and phonogram
producers in the digital age. Delegations were unable to achieve consensus on different
proposals for aspects of exclusivity to be provided in certain circumstances.
This paper demonstrates a number of disparities with this right including the fact that it
has been implemented in many countries, including the UK, as a subset of the
Communication To The Public right (CtoP), yet it is not treated in a similar fashion to
this right, except, sometimes, in the case of authors.
Additionally, the scope of the right varies with each type of creative work, is subject to
differing territorial interpretation, and took many years to define through case law,
implying that the original language with which the right was conceived was perhaps
ambiguous. Indeed, has it yet been defined? Many would argue that it has and that it
applies specifically to on-demand, digital content. Whether it is effective in delivering
the intention of the law a fair balance between performers and rightsholders - remains
to be seen.
This is a complex area of the law, best explained in terms of performer approvals and
performer ER paid on performing rights income (I credit Chris Cooke for this
explanation that he so eloquently lays out in Dissecting The Digital Dollar).
Performer approvals apply to any artist involved in the making of a sound recording
and consist of controls over that sound recording (similar to the controls enjoyed by the
copyright owner, which will usually be a record label). These are the rights that are
generally assigned to the record label by the Featured Artist through their recording
contract. Performer ER on the other hand, is unassignable and applies to the
exploitation of performing rights i.e. public performance and communication.
ER - Equitable Remuneration - is a guaranteed remuneration right that sends income

directly to the performer or author. It is important to note that ER is generally a fifty per
cent split, but does not have to be - it just means that it should be fair. The Making
Available right is the only performing right that does not have performer ER applied to it
(even though on the publishing side, the collection societies have treated MA in the
same way as the other performing rights).
The debate around the Making Available right is closely linked with the huge variety in
business models that offer diverging levels of consumer interactivity. Many say that ER
should apply to radio-style models such as Pandora and Spotifys radio feature as they
clearly use the communication rights of performers, however record labels argue that
even minor evidence of interactivity such as the ability to pause or skip a track
determines that these services fall under the Making Available right and dont constitute
a Communication to the Public, under which ER would apply (akin to broadcast radio or
webcasting). Conversely, on the songwriters side, ER applies to both interactive and
non-interactive services.
Therefore, and perhaps unsurprisingly, the single biggest issue this paper found is that
where ER is not applied to Making Available and where Making Available is becoming a
prevalent communication and performer right as consumer uptake in streaming services
grows (e.g. the UK), many performers including both Featured Artists and Session
Musicians are generally not seeing the same level of increase in digital revenue enjoyed
by so many of their partners.
Several changes in this area could go a long way to clarify Making Available including
harmonisation at European level that better advises individual states on the best way to
implement the right and define its parameters. More controversially perhaps,
compulsory licensing or applying ER to the MA right has been suggested. Several
Member States have in fact already supplied performers with a non-assignable
remuneration right that sits alongside the MA right, however, it appears that it is too
early to decipher whether this has benefitted performers or not.
The debate over whether performers would prefer their record labels handling their
entire MA-related income or collection societies taking ownership of a part of it is a
difficult one. Whilst UK collecting society PPL arguably sets a high bar for distribution
and transparency, sadly, this is not always the case throughout Europe.
In summary, the clarification of the origins of Communication To The Public and the
Making Available rights as well as the four recommendations in the paper kickstart an
urgent debate to ensure that those with little negotiation power fairly share in the
evolution of any new market that exploits their performances.
____________________________________________________________________
th
The forthcoming MusicTank panel debate - Creators Rights In The Digital Landscape, Tue 10 November will explore many of these issues and their nuances as well as the recommendations of this paper to
consider what might be a realistic course of action, should it be found that one is needed.
Authors Note
This paper started life as an assessment for the Technology, Rights and the Law
module as part of my Entertainment Law LLM course work at the University of
Westminster in the academic year 2013/14. It has since been updated to include recent
developments in both the music industry and IP law and comes at a time of heightened
concern and discussion about the licensing of digital platforms, in particular, music
streaming services.
As such it complements the recent publication of the MMFs Digital Dollar report, which
for the first time, lays out the fractured landscape of digital music licensing and builds on
Just A Click Away: How Copyright Law Is Failing Musicians a short paper intended
to demonstrate the legal mechanisms that occur behind each consumer 'click' on
streaming platforms and how the payment structure to labels, publishers and artists can
change with each one. All of these papers have been published concurrently.
I would like to thank all those who gave guidance and support in preparing this paper,
including Brian Message, Chris Cooke, Chris Ellins, Danilo Mandic, Guy Osborn, Nick
Yule, James Barton, Jenny Tyler, Jon Webster, Jonathan Robinson, Keith Harris, Paul
Pacifico and Sandie Shaw, and to family and friends for their unfailing support and
encouragement.
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Foreword
Fiona McGugans paper is an important intervention looking at the nuances and
intricacies of creators rights in the digital age. Drawing both on her insider status
within, and in-depth knowledge of, the music industry and her academic expertise, she
has produced an important and incisive overview with some concrete proposals for the
future
Fiona continues a fine tradition of exemplary work being produced as part of the
Entertainment Law LLM at Westminster Law School.
Fionas timely and illuminating piece follows in the footsteps of previous graduates who
have published work produced on the LLM in myriad journals and edited collections.
Chris Ellins Course Leader, and Danilo Mandic Research Fellow

Centre for Law, Society and Popular Culture, University of Westminster
The quality of work produced by our students never ceases to delight and humble me,
and of which this paper is a fine example. Fiona elicits much food for thought,
particularly around issues of ownership and access, and future implications that the
music industry would do well to heed.
Professor Guy Osborn, Co-Director
Centre for Law, Society and Popular Culture, University of Westminster
Entertainment Law LLM
University of Westminsters Entertainment Law LLM combines academic analysis with
the commercial practice elements of entertainment law. Entertainment is one area that
we can all associate with in some shape or form, and the interaction of this exciting
subject with the law produces an interesting and eclectic mix. The diverse nature of
entertainment law paves the way for a number of specialisms, all of which are
underpinned by the issues of contract and intellectual property.
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About MusicTank
MusicTank is a pre-eminent information hub for UK music business, addressing change
and innovation through informed debate, objective analysis and industry engagement.
Established in 2003, MusicTank has built an enviable reputation for its on-going and
unique programme of think tank debates, events and conferences, a natural extension
of which is its delivery on incisive reports commissioned from key industry figureheads.
MusicTank was shortlisted for the 2012 Times Higher Education Leadership and
Management Awards - Knowledge Transfer.
Report Catalogue
Private Copying Of Music: A New Model
For Artist Compensation
Samuel Rudy, 2015
Moneyballing Music: Using Big Data To
Give Consumers What They Really
Want And Enhance A&R Practices At
Major Record Labels
Prithwijit Mukerji, 2015
Easy Money? The Definitive UK Guide
To Funding Music Projects
Remi Harris, 2013
The Dark Side Of The Tune: The Hidden

Energy Cost Of Digital Music
Consumption
Dagfinn Bach, 2012
Remake, Remodel: The Evolution of the
Record Label
Tony Wadsworth with Dr. Eamonn
Forde, 2011
Let's Sell Recorded Music
Sam Shemtob, 2009
Meet The Millennials
Terry McBride, 2008
Beyond The Soundbytes
Peter Jenner, 2006
Become a MusicTank member today: musictank.co.uk
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About The Music Managers Forum

The Music Managers Forum represents over 400 artist managers in the UK, who in turn
represent over 1000 of the most successful acts on the planet. Since its inception in
1992, the MMF has worked hard to educate, inform and represent UK managers, as
well as offering a network through which members can share experiences, opportunities
and information. While this work continues, the MMF is also focusing more on providing
a collective voice in this time of change, giving real, meaningful value for members and
their artists, from helping to unlock investment and opening up new markets, to
encouraging a fair and transparent business environment in this digital age.
themmf.net
About The Featured Artists Coalition

The FAC is a collective of 4,500 artists who advocate for transparency in the music
business and a greater connection between artists and fans in the digital age. The
Featured Artists Coalition campaigns for the protection of UK performers and
musicians rights. Their aim is for all artists to have more control over their music and
have a fairer share of the profits generated in the digital age.
thefac.org
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About This Paper

Published by:
MusicTank Publishing
University of Westminster
Watford Road, Harrow,
Middlesex
HA1 3TP
If you have any comments about this paper we would love to hear from you:
musictank.co.uk/about/contacts | jenny.tyler@musictank.co.uk
First published London, October 2015

Copyright 2015 Fiona McGugan
The copyright in this publication is held by Fiona McGugan. This material may not be copied or
reproduced wholly or in part for any purpose (commercial or otherwise) except for permitted fair
dealing under the Copyright, Designs, and Patents Act 1988, without the prior written
permission of University of Westminster. The copyright owner has used reasonable endeavours
to identify the proprietors of third-party intellectual property included in this work. The author
would be grateful for notification of any material whose ownership has been misidentified herein,
so that errors and omissions as to attribution may be corrected in future editions.
ISBN: 978-1-909750-08-1
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Introduction
A cross-section of industries have undertaken streaming as a content distribution model
including video games, television, film, radio and music and a variety of business
models have been launched.1 The most common of which are a mixture of advertisingsupported (providing free access for the user), and subscription (a flat-rate monthly fee
charged to the user providing additional benefits such as offline usage, unrestricted
access and mobile apps).2 Free access models that have become hugely popular, such
as YouTube3 have become a preferred method for music listening and discovery by
Generation Z.4 They have conditioned consumers into using on-demand content that
is accessed temporarily and never downloaded and owned by them. Alongside
YouTube, platforms such as Spotify,5 Deezer and Apple Music,6 have also become
leading models of licensed music distribution, all with the underlying concept of inducing
music consumers to listen to streaming music on-demand.7
The various models of streaming that are available imply distinct levels of user
interactivity with the content being consumed. Live and on-demand require different
initiation processes8 and it can be argued that on-demand streaming singularly contains
a subset of differential interactivities. For example, user control can extend to creating
personalised playlists, picking exactly which tracks they want at the exact time they
want, or they can initiate streaming radio, where they are fed tracks based on certain
genres or decades.9
But why is this important? Historical law has dictated the application of rights to content
consumed by the public in different ways. In some cases, it is supplied with an
exclusive right, where the rightsowner can control all licenses of the music10. In others,
the law sees fit to apply collective licensing to certain uses, ensuring that neutral
institutions licence works and pay rightsowners equitably.11 Collecting Societies purport
an ability to supply combined bargaining power, ensuring reasonable pay rates for more
vulnerable constituents.12
1 See
2
3
4G
5
6
7
8
9
10
11
12
HOWEVER, THE SPEED AT WHICH STREAMING TECHNOLOGIES ARE

GATHERING MOMENTUM IS LEAVING BEHIND GREAT GAPS IN LEGISLATIVE
SOLUTIONS FOR THE APPLICATION OF INTELLECTUAL PROPERTY RIGHTS.
This paper will begin by examining nuances of technological development that have
impinged upon the traditional role of the reproduction right, analysing its evolving
nature. The second part will examine the historical development of communication
rights that are beginning to overshadow conventional distribution and reproduction
rights as the consumption of music moves from an ownership model to an access one.
The third part of this paper will examine the application of communication rights to
streaming technologies and looks at a cross-section of EU Member States, comparing
and contrasting the various means of implementation. It also examines specific
examples of streaming models from the viewpoint of their licensing structures in relation
to the interactivity of the user. It will be argued that the paradoxes arising from
European case law and the contrasting implementation of Member States
legislation have created confusion around the legal definition of a stream, both in
broadcast and on-demand contexts.
Finally, it examines the practical implications this has on performers, specifically

highlighting paradoxes present involving the nature of industry practice together with the
intentions of the law. It analyses whether, through current EU Law, equitable
remuneration13 is payable to performers in respect of certain types of digital media and
makes recommendations in light of this papers findings.
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13 Legally spe aking, equi table re mun era tion, w hich mea ns e qual pay, c an h ave a m ore nar rowly defin ed pur pose i n th e busi ness envir onm ent. A com mo n leg al revi ew of the ter m at tem pts t o ens ure tha t re mun era tion rep rese nts good fait h pr actices and is pr opo rtio nate to t he p erf orm ance of t he in dividu al. In the music i ndus try, Eq uita ble Re mun era tion refe rs sp ecifically to th e fifty pe r cen t split betwe en perf or mers an d lab els an d be twee n pu blishe rs an d writ ers thr oug h PPL an d PRS res pectiv ely. T he le gal t erm eq uitabl e re mu ner ation ref ers t o th e p rinciple of fai r pay .
The Shift From Ownership To Access

Streaming technologies are rapidly becoming a dominant mode of consumption of
digital content.1415 It can be argued that the sharp incline seen in music streaming
statistics in the IFPI Digital Report 201416 hinges on the real-time aspect of
consumption.17 From the perspective of the end user, it seems that downloading tracks
has now become the less necessary or desirable option for access to content.18
Coupled with the increased availability of broadband connection from almost anywhere
in the western world, real-time, on-demand access to many forms of content has
become intrinsic in peoples daily lives.19
In tandem with the growing trend of streaming is the increase in users spending on the
available licensed subscription services and using ad-funded models for free. 20 In
2013, subscription services revenues increased by 51 per cent enabling Europes
music market to expand for the first time in twelve years.21 Global revenues from
subscription and advertising-supported models accounted for 27 per cent of digital
revenues in the same year, up from 14 per cent in 201122 and the number of
subscribing users increased by 250 per cent between 2010 and 2013.23
Two years on in 2015, exclusive IFPI-commissioned research demonstrated that

consumer engagement with licensed music DSPs is high with 69 per cent of Internet
users accessing a licensed service within six months over 13 of the worlds leading
music markets.24 This accounts for significantly more people who say they use
streaming services more than they did 12 months ago.
The traditional method of online consumption of music involves the transferral of

technologically protected files through downloading25, a requirement of which is that a
full copy of the file is permanently stored on a device, which the user can then access
repeatedly at their discretion.26 Streaming, on the other hand, introduces the real-time
notion that users no longer need to own a copy of the content in order to enjoy it. 27 In
contrast to downloading, the act of streaming involves the constant transmission and
14
15
16
17
18
19
20
21
22
23
24
25
26
27
receiving of data between the host and the user via an Internet connection.28 The
storage element of streaming only ever occurs on a temporary basis using buffering 29
and is a sequential storing motion30, which does not imply the making of copies.31
Therefore, streaming is a transient act and not necessarily an act of reproduction in the
legal sense32.
From a copyright perspective, the key distinction between the models of
ownership of, and access to, digital files has marked a significant shift in the way
the reproduction right is regarded.33 This is partly due to the fact that the access
model applies to any form of content and arguably does involve an act of reproduction,
however transient or incidental.34 Hence it has been observed that the reproduction in
a digital environment is no longer a good predictor of whether there will be a
distribution to the public35 and it is thus difficult to consider the reproduction right as a
core copyright.36 For example, web pages are copied into temporary caches so that
browsers can display them quickly, programs are copied from hard drive to RAM so that
they can run and file systems are backed up to cloud services to ensure they are
protected. Digital music is one of the most versatile forms of content and can be copied
by the user in various forms and on various devices. The point is that, in computers and
networks, copies are made constantly, often without explicit instruction by or even
knowledge of a particular user and without any evidence that there is an intention to
distribute that copy further.37 The relevance of this seismic shift within the world of
music is integral. However, before examining the legal implications of this impact on
music distribution, it is necessary to clarify the technological nuances of streaming.
In the distribution of digital works, streaming has been classified as two separate
entities.38 Live streaming involves delivering content from a single source to multiple
users concurrently in real-time, also known as web-casting or simulcasting39.
Examples of usage are in the form of conferences, live shows and concerts, university
lectures as well as internet-produced content, comparable to traditional radio or
television.40 Distinct from live streaming, on-demand streaming permits the user to
initiate the transmission of content.41 The nature of on-demand requires data storage
28
29
30
31
32
33
34
35
36
37
38
39
40
41 Supra not e. 8
on a central server from where the content is streamed at the users request, 42
conversely live streaming demands an original source, from where data is captured,
processed into a digital signal and transmitted to numerous users at the same time
which is only accessible at the time which it is broadcast.43
Within the context of streaming, the undermining of the reproduction and distribution
rights by the technological process brings the application of the communication right into
focus.44 HOWEVER, CONSIDERING THAT THE WAY OF COMMUNICATING THE
CONTENT TO THE PUBLIC IS DIFFERENT, ON-DEMAND AND LIVE STREAMING
(BROADCAST) CONSEQUENTLY OPERATE DIFFERENTLY UNDER THE
COMMUNICATION RIGHT. De rigueur analysis of the development of the law in terms
of the new medium of streaming content is necessary in order to identify the practical
implications the law has on performers.
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42 Ibid.
43 Ibid.
44 Walter, M. M., & Vo n Lewi nski, S. (201 0) Eu rop ean Copy right Law: A C om ment ary, Oxfo rd U niversit y Press , Oxfo rd
The Development Of Communication

To The Public
The right of communication to the public (CtoP) has been embroiled in a tangled
web of law making from its very inception. It first appeared in the 1928 (Rome)
Revision of the Berne Convention to account for the advent of radio and TV
broadcasting. Berne Authors45 - which included performers - were granted an
exclusive right over their own works to communicate them to the public.46 WIPOs guide
to the Berne Convention, published in 2012, reflects that the original wording of CtoP
was slightly muddled.47 The right was later revised in the Brussels edit of the Berne
Convention in Article 11bis(1), however, an actual definition of CtoP still did not appear
in the Berne Convention after this revision.48 Also, due to the lack of mention of
neighbouring rightsholders49, it was necessary for the Rome 1961 Convention to
introduce specific reference to record labels, performers and broadcasters and provide
exclusive rights for them. 50 The exclusive right as applied in both the Rome and Berne
Conventions is exceptionally limited due to its preventative nature; performers were
given the right to prevent broadcasting and other communications of live
performances51 and broadcasters were given the right to prevent the rebroadcasting of
their broadcasts52 as well as any communication to the public in locations where
admission is charged.53
The Paris 1971 Act added further complications by applying variations in the scope of
the right depending on the nature of the work. Musical and dramatic works were
awarded the broadest protection, images the least, and literary works were left
somewhere in-between.54 Ginsburg (2004) sums up the way in which the Paris Act
covered CtoP as incomplete and imperfect through a tangle of occasionally redundant
or self contradictory provisions on public performance, communication to the public,
public communication, broadcasting and other forms of transmission. 55
45
46
47
48
49
50
51
52
53
54
55 Supra not e. 45 [Gins bur g]
Overdue updates and clarifications arrived in the adoption of the WIPO Treaties 1996.
The aims of the WIPO Copyright Treaty56 (WCT) and the WIPO Performances and
Phonograms Treaty57 (WPPT) were to establish full coverage of CtoP for both Berne
Authors and Neighbouring Rights respectively, thereby modernising and streamlining
protection for these works.58 In contrast to the preventive nature of the Berne
Convention, the WIPO Treaties granted exclusive authorising rights and in so
doing formulated a stronger exclusive right for rightsholders and performers. 59
Notably, the first endeavour to define communication to the public appears in the
WPPT, a point that has been inexplicably overlooked by the WCT. Article 2(g) of the
WPPT delineates:
Communication to the public of a performance or phonogram means the
transmission to the public by any medium, otherwise than by broadcasting, of sounds of
a performance or the sounds or the representation of sounds fixed in a phonogram. For
the purposes of Article 15, communication to the public includes making the sounds or
representations of sounds fixed in a phonogram audible to the public.60
This definition is only valuable in part due to the lack of specific meanings for
transmission and public. At European level, these lacunae have left a cross-section
of EC Directives, Member States nationally implemented legislation and case law
endeavouring to close the gaps of interpretation in terms of the scope of CtoP. For
example, the determination of transmission has been decided as referring to
communicating the work to the public not present at the place where the communication
originates,61 but a mere technical means to improve reception of the original
transmission in its catchment area does not constitute a communication 62. Case law
defined CtoP to include any retransmission of a work by specific technical means
different from that of the original communication 63 and where it is not, it is necessary to
prove that the communication is to a new public, i.e. one that was not considered by the
original authors in their initial authorisation.64
56 World I ntellec tual Pr ope rty O rga nisatio n, Co pyrig ht Tre aty, S. Tr eaty D oc. No. 10 5-1 7 (1 997 ) He reaf ter to refe rre d to as WC T
57 World I ntellec tual Pr ope rty O rga nisatio n, Pe rfor ma nces and Ph ono gra ms Tre aty, S. Tr eaty D oc. No. 10 5-1 7, 3 6 IL M 76 (1 997 ) He reaft er refe rr ed t o as WPPT
58 Supra not e. 49
59 See Rein both e, J. & Vo n L ewinski, S. (20 02) Th e WIPO Co pyrig ht Tre aties, 24. and Ficso r, M. ( 200 2) The Law of Co pyrig ht a nd t he In ter net: Th e 19 96 WIPO Tr eatie s, T heir Impl eme ntati on a nd I nte rpr etatio n Oxf ord Unive rsity Pr ess, UK.
60 WPPT Art. 2 (g)
61 See Recit al 20 of Eu rope an Di rective 20 01/2 9/EC an d I TV Broa dcasti ng Lt d v TVCatch up Ltd [ 201 3] ECDR 9 at 2 3.
62 See 05 Socied ad G ene ral d e Auto res y Editor es d e Espa a (SGAE) v Raf ael Ho teles SA [ 2006 ] ECR I- 115 19, Foo tball Associ ation Pre mier Lea gue Ltd v QC L eisur e [2 011] ECR I-9 083, Airfield NV v Belgisch e Ver enigi ng va n Aute urs, Com positie n e n Uitgev ers CVBA (SABAM) [20 11] ECR I -93 63 a nd I TV Bro adcas ting Ltd v TVCatc hup Ltd [20 13] ECDR 9
63 ITV Bro adcas ting Ltd v TVCatc hup Ltd [20 13] ECDR 9
64 See Or ganis mos Sillo gikis Diach eirisis Di miou rgon Th eat rikon kai O ptikoak oustik on Er gon v Divani Ak rop olis Anoni mi Xen odoc heiaki k ai T ouris tiki Etairei a [2 010] ECR I-3 7
In reference to the definition of the public, several cases have concluded that the term
refers to an indeterminate number of potential recipients and implies a fairly large
number of persons65 and for that purpose, the cumulative effect of making the works
available to potential recipients should be taken into account66. This is particularly
relevant to ascertain the number of persons who have access to the same work at the
same time and successively. It is also implicit, therefore that any group comprising of
the non-public should be economically insignificant.67
The significance of the term public relates to the concept of right to Equitable
Remuneration under UK law. To the extent the right was comprehended within the
Berne Convention Art. 11bis, CtoP is subject to compulsory licensing. Article 12 of the
Rome Convention states:
If a phonogram published for commercial purposes, or a reproduction of such
phonogram is used directly for broadcasting or for any communication to the public, a
single equitable remuneration shall be paid by the user to the performers, or to the
producers of the phonograms, or to both.68
However, conflicting judgments continue to arise. In 2012, the ECJ ruled on three
cases involving CtoP, determining that in the case of broadcasting phonograms in hotel
bedrooms was considered CtoP and therefore gave rise to a right of remuneration for
performers and phonogram producers69, however, applying the same criteria70 for the
same action in a dentists waiting71 room and a spa72 was not.73
FACTORING THE INTERNET INTO CtoP ONLY SERVES TO COMPLICATE

EQUITABLE REMUNERATION FURTHER.
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65
66
67
68
69
70
71
72
73
The Making Available Right

With the aim of further strengthening the right of CtoP, in addition to the authorising
nature of the Treaties language, the Making Available (MA) right was created. 74
Article 10 of the WPPT states:
Performers shall enjoy the exclusive right of authorizing the making available to the
public of their performances fixed in phonograms, by wire or wireless means, in such a
way that members of the public may access them from a place and at a time individually
chosen by them.75
The adoption of MA signified the recognition that record producers needed this right in
order to disseminate their recordings online as a primary form of exploitation. The IFPI
reported on MA as being fundamental for promoting the development of electronic
works and of new business models by the recording industry.76 This is justifiable as it
is generally accepted that the public communication right is infringed whenever a work
is made available to the public by any means, irrelevant of whether a member of the
public has actually accessed it or not.77 However, whilst the IFPIs report gives
reasoning for the strength the MA right gives to record producers, it makes no
mention of the potential impact it might have on performers. The exclusive nature
of MA means that it sits within contractual terms between record companies and
performers78, an issue that will be discussed further on.
The phrasing of Article 10 of the WPPT implies its association with technological
advance, specifically the communication of works on the Internet. The MA right differs
from broadcasting in the sense that the former allows the user to access the work
whenever he decides, whereas a broadcast only gives the user access to the work at
the time that it is transmitted.79 Consequently, referring back to the definitions of
streaming earlier, in theory all on-demand streaming should fall under the MA right
whilst live streaming should have broadcasting rights applied.80
74
75
76
77
78
79
80 Broadc asting rig hts a uto matically i nclud e rig ht t o eq uitabl e r t he C ouncil Di rectiv e 20 06/1 15/EC Re ntal and Len ding Ri ghts A rt. 8 (2)
However, there is uncertainty surrounding the application of a broadcasting right in a

digital context. Ficsor argues that whilst live Internet streaming may be regarded as
broadcasts, the prescription of mandatory collective management would hardly be
compatible with the Berne Convention where the global nature of the Internet conflicts
with the individual State focus of Berne.81 Therefore, it is evident that Internet live
streaming is currently in a legal limbo.82 It is undoubtedly a form of CtoP, not
within the technical definition of MA but does not fit with the traditional form of
broadcast either.
Concerning the scope of the MA right, when communication occurs over the Internet, it
is sufficient that a work is made available by any means, including peer-to-peer83 and
hyperlinking for it to be considered making available to the public.84 In a recent case,
four journalists addressed the issue of hyperlinking under the making available right.
Svensson85 proved that in the case of authors, the ECJ found that making material
available to the public in such a way that they may access it via hyperlinking provides
that there is a making available and therefore a communication to the public86 under
Article 3(1) of the Information Society Directive.87 The wording of this judgement brings
the relationship between MA and CtoP into focus. If the former is therefore the latter
for authors, do the same provisions apply for performers?
[top]
81 Ficsor , M. (2 006 ) Collec tive M ana ge ment of Co pyrig ht a nd R elate d Right s in t he Digit al Netw orke d Envir onm ent Volun tary , Pres ump tion-B ased, Exten ded, Ma ndat ory, Possible, Inevi table ? In Ger vais, D. (2 006 ) Collectiv e M ana gem ent of Co pyrig ht a nd Rel ated Rights 58 -59 K ulwer Law I nter natio nal, Th e Hag ue
82 Supra not e 8
83 For insta nce in Polydo r Li mited & Othe rs v. Brown & Othe rs [ 2005 ] EWGC 3 191 (Ch) UK
84 As state d by t he I talian S upr eme Cou rt in Supr em a Cor te di C assazi one , se nten za 4 l uglio 200 6 n. 339 45
85 Nils Svensso n, Sten Sjgr en, Mad elaine Sahlm an, Pia Gad d v R etriev er Sve rige AB , CJEU, Case C . 46 6/1 2 20 14 Se e also R osati, E. (2 014 ) Early Th oug hts o n Svens son co mmu nicatio n/m aking availa ble, n ew p ublic, alt erin g th e sco pe o f exclu sive ri ghts availa ble at htt p://ipkit ten. blogs pot.c o.uk/ 201 4/02 /ea rly-t houg hts- on- svenss on. html Acce ssed 4th Ap ril
86 Ibid. Se e also ALAI, ( 201 4) Re por t an d Opi nion on t he makin g avail able and com munic ation to t he public in the inte rnet envi ron men t: foc us o n linkin g tec hniqu es o n th e Int ern et E.I.P.R 149
87 Council Di rective 20 01/2 9/EC he rea fter ref er red t o as inf oSoc
Where Does Equitable Remuneration

Apply?
The WPPT addresses Equitable Remuneration with a level of uncertainty. Article 15(1)
states, Performers and producers of phonograms shall enjoy the right to single
equitable remuneration for the direct or indirect use of phonograms published for
commercial purposes88 for broadcasting or for any communication to the public. For
defining commercial purposes the WPPT uses language applied to the MA right 89,
therefore implying that a remuneration right can be given to both on-demand and live
transmission, but that Member States may apply this Article only to certain uses of
phonograms. WIPO has admitted,
It is understood that Article 15 does not represent a complete resolution of the level of
rights of broadcasting and communication to the public that should be enjoyed by
performers and phonogram producers in the digital age. Delegations were unable to
achieve consensus on different proposals for aspects of exclusivity to be provided in
certain circumstances.90
It is also important to note the allowance for contractual circumstances to supersede the
right of Equitable Remuneration for performers as the treaty allows for domestic law to
lay down conditions relating to the sharing of remuneration.91
At European level, the ambiguity of the application of the remuneration right is
apparent. Whilst the Rental and Related Rights Directive 92 reiterates Article 15(1)
of the WPPT,93 the InfoSoc Directive does not contain remuneration rights for
performers at all, rather it contains only the exclusive right. Notably, this
exclusive right is worded differently for performers than it is for authors94:
Member States shall provide for the exclusive right to authorise or prohibit the making
available to the public, by wire or wireless means, in such a way that members of the
public may access them from a place and at a time individually chosen by them:
88 WPPT Art. 1 5
89 Article 1 5 WPPT f or t he pur pose of t his Article, ph ono gra ms m ade availa ble t o th e pu blic by wi re o r wir eless mea ns in s uch a way t hat me mbe rs of the public may access the m f rom a pl ace a nd at a ti me i ndividu ally ch osen by t hem shall b e co nside red as if t hey had bee n pu blishe d fo r co mm ercial pur poses .
90 WPPT at n ote 12
91 WPPT Art.15 (3 )
92 Council Di rective 20 06/1 15/EC Re ntal and R elate d Righ ts Dire ctive her eafte r r efe rre d to as R ental
93 Council Di rective 20 01/2 9/EC Article 3(2 )
94 Council Di rective 20 01/2 9/EC Article 3(1 ) st ates: M emb er St ates s hall p rovid e au tho rs with the exclusive rig ht to aut horis e o r pr ohibit any c om munic ation to t he p ublic of th eir wo rks, by wire or wireles s me ans, includi ng t he makin g avail able t o th e pu blic of thei r wor ks in s uch a way t hat me mbe rs of the public may access the m f rom a pl ace a nd at a ti me i ndividu ally ch osen by t hem
(a) for performers, of fixations of their performances95

It is clear from one directive that, for authors, making available to the public is
included as part of the communication right, a circumstance substantiated by
Svensson. It would therefore be logical to assume that making available would
be part of the CtoP for performers as well, however the Rental Directive does not
specifically mention the MA right in relation to CtoP, allowing for a broad
interpretation.
[top]
95 Ibid.
The Implementation Of
Communication To The Public,
Making Available And Equitable
Remuneration In EU Law
Ficsor has described Article 8 of the WCT as simply an umbrella solution96 and the
InfoSoc Directive reiterates the principles of Article 8 of the WCT, thereby maintaining
the broad regulation of the CtoP right in the EU. 97 This is also reaffirmed through the
Explanatory Memorandum accompanying the InfoSoc Directive;
The expression communication to the public of a work covers any means or process
other than the distribution of physical copies98
As such, the Treaties leave open the possibility to implement the MA right on the
basis of an existing exclusive right or through enactment of a new right.99
Distinct legal systems throughout the world have justified different approaches in
terms of CtoP, MA and how equitable remuneration relates to both. AEPO-ARTIS
carried out an in depth study into ten Member States establishing that whilst all legislate
a right to remuneration for broadcasting and CtoP of phonograms, the extent of
application differs dependent on use.100
Pertaining to digital media, most States, despite Ficsors reservations, consider that
Equitable Remuneration is due for webcasting and simulcasting due to their
broadcasting nature.101 However, in French and Belgian legislation, narrowed
interpretations of CtoP to public places mean that they do not apply broadcasting rights
to these uses.102 This contradicts the Recommendation of the Commission103 that
webcasting, Internet radio, simulcasting and near-on-demand services received either
96 Supra N ote. 73
97
98
99
100
101
102
103
on a personal computer, or on a mobile phone as belonging to the right of

communication to the public, in the form of a right to remuneration.104
Most countries studied in the AEPO report have provided performers with an exclusive
MA right.105 Notably, French legislation did not originally mention the MA right explicitly
as the CPI106 on CtoP was considered broad enough to envelop it.107 However, from
the adoption of the Rental Directive, the MA right should be explicitly recognised as a
new, exclusive right,108 and therefore French legislation was adapted. Only in Croatian
and Lithuanian legislations is the making available on-demand of phonograms
considered to be an act of communication to the public for which an Equitable
Remuneration is due.109 Spain has delivered on performers rights to remuneration by
ensuring that, where the performer transfers his or her exclusive MA right to a record
label, they should retain an un-assignable right to Equitable Remuneration.110
Considering that performers are required to transfer their MA right to the record label
under contractual terms, collective administration for this right is almost non-existent.111
Before the impacts of this are analysed, it is essential to discuss some real world
examples of streaming models and where they sit in the licensing framework.
[top]
104
105
106
107
108
109
110
111 28th A pril 2 014
Making Available And The

Interactivity Of Streaming
The broad definition of interactivity within the WIPO Treaties; at a time and from a
place individually chosen by them112 allows for all forms of transmission that allocates a
degree of interactivity, measured by individual members of the public rather than the
public at large.113 Theoretically this covers all content that allows a consumer to choose
which content and the moment of enjoyment of that content. It is difficult to identify a
principle that can be applied to such a wide variety of services, many of which were
unlikely to have been considered when drafting the Treaties.114
Tappin endeavoured to define the key features of a music streaming service, which
amounts to an exercise of the MA right and concluded that it is any service where the
user is in control and can individually decide when (and from where) he accesses the
sound recording.115 Maintaining that each sound recording should be treated
individually,116 he deduced that, in the case of albums and compilations, even when the
user initiates the first track, the expectation that further tracks will follow gives sufficient
substance to say that the music is being accessed at a time chosen by him.
Furthermore, the added element of allowing users to skip tracks clarifies the application
of the MA right even more.
He also asserts that by this definition, the Napster radio station117, and Jazz FM118 are
all examples where providers cede control of the timing of the transmission to the user
and add elements of skip and pause.119 The availability of the tracks in library form
meant that the user has the option of choosing the starting piece of content. In addition,
services such as BBC Radio Listen Again120 and Jazz FM archive121 that re-transmit
programmes in full are still within the users control, he argues; The fact that the
contents of the programme have been chosen, ordered and timed within that programme
by the programme-maker does not seem to me to detract from the fact that those sound
112 See WCT A rt. 8, , WPPT Art. 10. ,an d WPPT. Art 14
113 Supra not e. 68
114
115
116
117
118
119
120
121
recordings, embedded in the programme, are being made available in such a way that
they can be accessed at a time individually chosen by the user122
However, Tappin notes that Last.fm123 and Pandora124 should not be counted under the
MA right, even though they both allow user interactivity by giving them the option to pause
and skip tracks, because it is not possible to identify any posted works125, which are
accessible to members of the public at a time of their own choosing. There is no stored
playlist but instead the provider transmits sound recordings in an order generated semirandomly by a computer according to user preferences. This in effect is a personalised
broadcast.126
Tappins opinions were offered before the advent of some current services but can be
applied all the same. For example, in light of his analysis, it is questionable whether
certain features of some streaming models have been licensed correctly. Spotify,
who license all their works through the exclusive rights held by record labels127, provide a
radio feature and mobile tier that both fit within Tappins definition of personalised
broadcast in that they place limits on user interactivity and transmit sound recordings in a
random fashion.128
[top]
122
123
124
125
126
127
128
The Practical Impacts On Performers

Historically, performers have not been highly valued, legally speaking. 129 The advent
of recording and broadcasting technologies served to undermine the protection
of performances and UK legislation has been slow to fortify performers rights.130
The Directives and Treaties discussed hitherto have aimed at granting more rights to
performers and although jurisprudence argues that they are given protection equivalent
to that of authors,131 it is evident that, through the application of MA and CtoP, they are
not. It can be deduced that the main cause of this is that their protection serves under
performers rights and not the stronger copyright132 and that unlike other performing
rights, MA is not subject to Equitable Remuneration.
The intention of the Rental Directive to supply a remuneration right for performers was
to correct perceived market failure for equity rather than efficiency reasons 133 One of
the imbalances it aims to supplant is the distinction of treatment between featured 134
and non-featured135 performers, which is illustrated through industry contracts. The
former is given a share of royalties, whilst the latter are usually given a singular
payment for their performance136. The introduction of an unwaivable remuneration
right for performers was to provide a level of income for those who do not benefit
from royalty payments and also partially to supersede any unfair terms in
contracts.137
The UK has implemented its obligation to performers in two ways. In some cases,
including the application of the MA right, it has created rights for performers directly
enforceable against users138, which sit alongside the directly enforceable rights of the
owner of the copyright in the sound recording139. In other cases, such as broadcast, only
the owner of the copyright in the sound recording has a right directly enforceable against a
user140, but the performer has a right to equitable remuneration from the owner of the
copyright in the sound recording.141 The CDPA only allows a retainable remuneration right
129
130
131
132
133
134
135
136
137
138
139
140
141
to authors when they assign their exclusive MA right for on-demand services.142
Industry practice indicates that most, if not all, performers transfer their exclusive rights
in the event of a recording contract143, giving only a few featured performers a chance to
negotiate the payment of royalties for the exploitation of their MA right. 144 The majority
of performers have not seen their economical situation change 145 with the
introduction of the MA right; therefore, its original intention has been undermined
by the contractual practices of the music industry.146 Interestingly, recent cases
demonstrate that performers have begun to question whether record labels have the
right to licence the MA right in contracts that pre-date digital services and have had
some success in their assertion. Johansson brought a successful civil action against
MNW 147 regarding the labels right to exploit the MA right and Jrvinen the son of a
member of Hurriganes did the same against Universal.148
If performers are to receive equitable remuneration for the making available of

their performances via on-demand services, the current legal framework is in
need of reform. The current deficiencies denote that the MA right remains purely
hypothetical for most performers. Pacifico articulates that; the Making Available
Right that was meant reward creators in the digital age has failed. Most artists
simply do not have the negotiating power to get a good deal from dominant
players in music149
[top]
142
143
144
145
146
147
148
149
Recommendations
1. Precision And Clarification In The EU Directive And WIPO Treaty
Arguably, prior to the advent of digital, each Member States subset of copyright
legislation acted satisfactorily within its own jurisdiction and complexities in this area of
law has arisen from the new global approach to copyright. Content is now available on
a worldwide basis and a closer harmonisation of performer rights, especially in Europe,
is needed. The broad level of interpretation that now exists in Europe coupled with
cross-border digital transmissions that occur under these conflicting legal approaches
has only served to complicate the MA right further.
The definition of the exclusive rights and the qualification of online exploitation
could be a solution - requiring a sharper distinction between the making available
right and the reproduction right. Consequently each act of exploitation would be
qualified as either an act of making available or distribution of a reproduction150.
Whilst the topic of complete European harmonisation is outside the scope of this paper,
elements of the Treaty can be criticised for their lack of detail, particularly note 12 of Art.
15 of the WPPT, which exposes the fact that an agreement could not be reached
regarding ER for performers. It is for this reason that Member States were able to
implement the MA right with such differing scope.
Clarification by specifically listing the uses on which ER applies would go a long
way in harmonising legislation in this area. For example, this could be enshrined
through the recommendation of the Commission that ER applies to webcasting,
Internet radio, simulcasting and near-on-demand services received either on a personal
computer, or on a mobile phone as belonging to the right of communication to the
public, in the form of a right to remuneration151, although this would demand further
definition in the case of near-on-demand services.
150
151
2. A New Deal For Legacy Contracts

Whilst newer recording contracts explicitly state that the MA right must be assigned to
the label in order for them to digitally distribute, contracts that pre-date the creation of
the MA right are under scrutiny. Labels have used a catchment clause within
contracts that states that the performer assigns both current and future rights to
the label.152 In addition, the fact that the MA right exists as a sub-set of CtoP, which is
already covered in recording contracts gives strength to this argument. However, the
cases of Johansson153 and Jrvinen154 demonstrate that it is possible that much of
the catalogue licensed to streaming services has been done so without the
ownership of the MA right. Therefore, it can be argued that the MA right must be
secured through negotiation with legacy performers, which could give them the
opportunity to obtain a fairer royalty on digital income.
3. Collective Licensing For The MA Right

The proliferation of on-demand streaming and the applicability of the MA right to it have
demonstrated that the potential financial benefit for performers for the exploitation of
their performances is significant. However, the fact that the stronger, exclusive right
yields less return for performers than the right of remuneration in other areas155 proves
an imbalance in the legal framework.
A suitable resolution to overcome the weak contractual position of the performer

would be to provide an unwaivable right of remuneration retained by the
performer in the event that his or her MA right has been assigned. The right
would then be licensed collectively. This follows the current Spanish model and
being obligatorily exercised by a collecting society. In a similar way, collective licensing
has been imposed by the Satellite and Cable Directive (SatCab) with regard to cable
retransmission rights. In this case, the MA right keeps its exclusive nature but it can in
principle only be exercised by a Collective Management Organisation (CMO) 156 Should
this legislation be applied, the performer, as the content provider, would have the right
to individually authorise or prohibit the making available of the work to the public but not
152 For det ails an d a nalysis o f this cl ause am ong oth ers s ee Futu re of M usic Co alition (20 01) Maj or L abel C ont ract Cl ause C ritiqu e, a vailabl e at https ://fut ur eofm usic.o rg/ article/ articl e/m ajor -label -con trac t-cla use-c ritiqu e
153
154
155 For exa mple, the rig ht of re mun erati on in br oadc asts yiel ds 5 0% of r even ues f or per for mers in t he UK. Se e Cad dick, N., Davies, G., & H arb ottle, G. ( 201 3) C oping er & Sko ne J ames on C opyri ght, 16t h ed . Sweet & Maxw ell, Lo ndo n.
156 art. 9 SatCa b Dir )32 9
the first reproduction following from this availability. With the CMO concluding these
agreements for the first reproduction in its repertoire, direct income would be
guaranteed to the performer 157 The collective negotiating power of collecting societies
would work in performers favour by obtaining and enforcing global agreements in the
first instance of making available.
When comparing the labels position to the cable distributors referenced in the SatCab
Directive, the desirability of this system for performers becomes apparent. As
secondary exploiters of the MA right, they are reliant on the primary distributer (in this
case, the broadcaster), which alone determines the broadcasting programme and clears
the rights accordingly. Instead of these actions being independently achieved, they are
both acts of the same exploitation, and therefore the content provider making the work
available would also control the resulting reproduction through the same technical
process.158 However, the feasibility of this system comes into question when
considering that it was created for a very specific sector; the retransmission of radio and
TV broadcasts, which is far more delineated sector and therefore easier to discern
sector practices159.
The advantage of Collective Licensing is that is yields equitable remuneration, however,

it is important to note that European legislation does not currently specify the division of
this remuneration between performers and record labels. Belgium, France, Lithuania
and The Netherlands all stipulate equal shares160, which the rest of the EU Members
States would be advised to follow to ensure performer protection161. In addition,
collective licensing for authors within an on-demand streaming context has presented
challenges of its own. As well as being faced with criticism of their efficiency of
administration in the digital environment 162, the global nature of the Internet has
presented anti-trust challenges in cross-border licensing.163 However, it has been
stipulated that even with the issues of efficiency in revenue and data processing, artists
often prefer CMOs to collect money on their behalf rather than labels and publishers.
Therefore it is arguably still desirable for performers entitlement to remuneration
for their MA rights to be collectively administered, if there is to be any change in
their circumstance.
157 Supra not e. 10 7 at [22 ]
158
159
160 Ibid.
161 Ibid. For Exam ple Fra nce h as link ed th e a mou nt of re mun era tion direc tly to t he reve nues fro m ex ploita tion as it giv es p erfo rm ers org anisati ons a clea r gui deline in t heir discussio ns with use rs.
162 Merc edes F rabb oni, D , (2 005 ) Cr oss-b ord er lic ensin g an d collec tive man age ment : a pro posal for the online cont ext, En t. L. R, 2 005 16( 8) 204 -208
163 For a f ull analy sis see Batch elor, B. (2 007 ) Antit rust c hallen ges t o cr oss- bor der cont ent lic ensin g: th e Eur ope an Co mmissi on inv estig ations of c ollecting socie ties a nd i Tun es, C. T.L.R, 20 07, 13( 8) 2 17- 222
4. Compulsory Licensing For First Reproductions

As an alternative to Recommendation (3), a compulsory license covering the first
reproductions following directly from on demand availability to the public could
be introduced.164 This would allow labels to maintain complete control over the
licensing of the making available right whilst concurrently holding them accountable to
the performer and subjecting them to a more rigorous and transparent process when
doing so.
Instead of requiring that either the content provider or the end-user negotiate a licence,
the grant of a compulsory licence would be subject to a minimum remuneration for both
the label and the performer. The Berne Convention contains provisions that allow for
these licenses but enacts two restrictions; that the impacts of the compulsory licenses in
each Member State should not impose beyond their territory and that the performer
should receive a fair remuneration which is negotiated between the parties involved or
fixed by a competent authority.165 According to jurisprudence, the debtor of such
remuneration should be the party making the work available to the public i.e. the content
provider; in most cases, the label. Regarding the latter, as seen in the US with the
Copyright Royalty Board, this creates an important burden and also may negatively
impact on performers and labels by instilling an upper limit for the negotiated fee for the
licence.166
[top]
164
165
166
Conclusion
The growth of legal, on-demand streaming services has generated new forms of income
via licensing exclusive rights.167 Therefore, it would be expectant for performers to
benefit in parallel with increases in revenue and for the law to support their right to
financial gain. Throughout the EU, the implementation of Art.3 of the InfoSoc Directive
changed legislation to include the right for the making available of works on-demand
streaming services. In most case this has been implicitly recognised as a subset of
CtoP.
However, it can be seen that whilst the strength of the exclusive MA right is
weighted to the record producers, the economical situation of performers has not
necessarily changed in correlation with that of other beneficiaries of digital
income. Furthermore, where in most countries, performer ER is payable when the
performing rights of a sound recording copyright are exploited, but the MA right, (despite
being implemented in the UK and numerous other territories as a division of CtoP) is
omitted from this.
Therefore, if the same streaming service is exploiting communication rights, ER should
be paid to the performer, but if the MA right is at play, no automatic payments to
performers are due. The result of this is to confuse the legal definition of a stream and
create uncertainty in the performer community 168. Contractual agreements requiring the
transferral of the making available right only allows for major featured artists to
negotiate higher royalty rates from the exploitation for this right.
From the research here, it can be observed that legislation is seriously lacking in
terms of protection for performers in the digital age. The fact that CtoP has to be
interpreted broadly for the protection of performers and phonogram producers 169
has resulted in a miscellany of implementation throughout Europe.
However, this has allowed for the growth of diverse licensing systems allowing for
scrutiny of the impact these systems have on various counterparts.
167 See Gillier on, P. (20 06) Collecti ng Socie ties a nd t he Digi tal Envir on ment, IIC 9 39 Th e ass um ption that the devel op ment of o nline music s tor es will likely l ead t o a s ubst antial i ncr ease i n th e ro yalties c ollect ed o n th e inte rne t was c onfi rme d on Ma rch 13, 200 6, wh en ASCAP ann ounc ed t hat reve nues gen era ted by o nline music st ore s in 2 005 ha d incr ease d by 50% in c om paris on with 20 04, f or a tot al am oun t of US$ 8.1 million. See f ull pr ess r eleas e at www .asca p.co m/p ress/ 200 6/03 1
168
169 See SGAE at [ 36], [54], FAPL at [1 86], ITV a t [20 ].
It is vital that performers with little negotiation power share in the evolution of
any new market that exploits their performances. On-demand streaming of music
is one such area, where some States are implementing economically sustainable
solutions for performers through collective licensing. Despite the drawbacks of
collective licensing, it seems that this remains the strongest recommendation to
change the financial position of the majority of performers.
[END]
[top]
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[top]
References
1. For example: www.deezer.com, www.last.fm, www.youtube.com, www.rdio.com, www.rara.com,
www.bloom.fm, www.spotify.com, www.hypem.com, www.netflix.com, www.lovefilm.com, etc.
2. Thomes, T.P, (2013) An economic analysis of online streaming services, Information Economics
and Policy, Volume 25, Issue 2, pages 81-91.For a critical analysis of streaming service business
models see Tschmuck, P. (2013) Is streaming the next big thing? The Business Models of Music
Streaming Services, Available at http://musicbusinessresearch.wordpress.com/2013/06/17/isrd
streaming-the-next-big-thing-the-business-models-of-music-streaming-services/ Accessed 3
March 2014
3. www.youtube.com Youtube is now the second largest search engine in the world, with one billion
unique monthly visitors, six billion hours of video are consumed every month and one hundred
hours of video are uploaded every minute. See infographic at
http://www.mushroomnetworks.com/infographics/youtube---the-2nd-largest-search-engineinfographic accessed 15th Feb 2014
4. Generation Z are described as those born between 1995 and 2012 and having grown up with a
highly sophisticated media and computer environment, are more Internet and content savvy than
their Gen Y forerunners. For full description, see
http://www.socialmarketing.org/newsletter/features/generation3.htm accessed 28th Feb 2014
5. www.spotify.com
6. www.deezer.com
7. See IFPIs Digital Music Report 2014 accessible at http://www.ifpi.org/downloads/DigitalMusicReport-2014.pdf , Whinney, J. (2012) Music Streaming Services and Payouts, Lee & Thompson
LLP, Comps. & Law 2012, 23(3), 24-25.
8. Borghi, M. (2011) Chasing Copyright Infringement in the Streaming Landscape IIC 2011, 42(3)
316-343
9. For examples of this see the nuanced differences between services as analysed in Supra note 2.
[Tschmuck]
10. Borghi, M. & Montagnani, M, L. (2009) Models for Managing Intellectual Property Rights on the
Internet: Online Distribution of Digital Media Content, Final Report, Counter Project, October
2009
11. Ibid.
12. Robertson, G. (1997) Music, The Internet and the Role of Colleting Societies E.L.R Vol. 8(7) p.
242 - 246
13. Legally speaking, equitable remuneration, which means equal pay, can have a more narrowly
defined purpose in the business environment. A common legal review of the term attempts to
ensure that remuneration represents good faith practices and is proportionate to the performance
of the individual. In the music industry, Equitable Remuneration refers specifically to the fifty per
cent split between performers and labels and between publishers and writers through PPL and
PRS respectively. The legal term equitable remuneration refers to the principle of fair pay.
14. Habib, E. (2015) Streaming set to surpass all time download record in France, MBW accessed at
http://www.musicbusinessworldwide.com/streaming-set-to-surpass-all-time-download-record-infrance/
Ingham, T. (2015) Streaming now accounts for 72% of recorded music market in Denmark, MBW,
accessed at http://www.musicbusinessworldwide.com/streaming-now-accounts-for-72-ofrecorded-music-market-in-denmark/
Ingham, T. (2015) Japans music market up 1.1% as streaming jumps 43%, MBW accessed at
http://www.musicbusinessworldwide.com/japans-recorded-music-market-up-1-1-as-streamingjumps-43/
15. Baym, N. K. (2010) Rethinking the Music Industry. Popular Communication, E.L.R 8(3), 177-180.
16. Sandivne reports: real-time entertainment is unquestionably the dominant driver of data
consumption on fixed and mobile networks and is still growing substantially
Sandvine Inc. (2010) Fall 2010 Global Internet Phenomena Report. Available at
www.sandvivne.com, See also: Labowitz, C., Iekal-Johnson, S. & McPherson, D. (2009) ATLAS
Internet Observatory Annual Report, Arbor Networks
17. Supra note. 8
18. Ibid.
19. Aguiar, J. & Martens, B. (2013) Digital Music Consumption on the Internet: Evidence from
Clickstream Data, JRC Technical Reports available at
http://publications.jrc.ec.europa.eu/repository/bitstream/111111111/27891/1/de%20wp%20digital
%20music%20consumption%20201305.pdf Accessed 19th March
20. IFPI, (2014) Music Subscription Revenues help Drive Growth in Most Major Markets 18th March
Available at http://www.ifpi.org/news/music-subscription-revenues-help-drive-growth-in-mostmajor-markets Accessed 19th March
21. Ibid.
22. Ibid.
23. IFPI (2015) Digital Music Report 2015, accessed at: http://www.ifpi.org/news/Global-digital-musicrevenues-match-physical-format-sales-for-first-time
24. Klym, N. (2005) Digital Music Distribution MIT cfp.mit.edu/docs/digital-music-dec2005.pdf See
also Jade, K. (2005) ML: Apple prepared to debut iTunes subscription service if needed, Apple
Insider, http://www.appleinsider.com/article.php?id=1075 which proves why downloading can now
be seen as a traditional method.
25. Ibid. [Klym]
26. Topic, M. (2002) Streaming Media: Demystified, McGraw Hill, New York and Zimmermann, J,
(2012) Actual Transfer versus Making Available: A Critical Analysis of the Exclusive Right to
Distribute Copyrighted Works C.I.L Vol. 29(8) p.1 (9)
27. Supra note. 8
28. Ibid. Borghi states that buffering is an act of temporary storage in the temporary memory and is
inherent to the act of streaming.
29. Ibid. In buffering, the storage of segments of data are subsequently replaced by other segments
and the RAM retains only enough data sufficient for the time it takes to deliver the content via a
media player.
30. Foley, S. (2001) Buffering and the reproduction right: When is a copy a copy? Accessible at
http://web.wmitchell.edu/cybaris/wp-content/uploads/2010/04/03.Foley_.05-07-10-vFINAL.pdf
Accessed 14th April
31. Ibid. In the case of caching tracks to a device, there are arguments over whether this constitutes
a reproduction of the sound recording of a musical work. Permitting the user to access the sound
recording again from local access rather than by means of a transmission would suggest that a
copy has been made, however, these are borrowed and it has been argued that, in terms of
infringement, the allegation that caching data is a form of recreating an illegal copy has only
served to retard the distribution of legal content. Either way, the arguments surrounding caching
data are outside the scope of this paper.
32. Supra note 8: Borghi states that the broad reproduction right laid down in the WIPO Copyright
Treaty and the Information Society Directive, coupled with the exemption for acts of temporary
reproduction, is probably the last attempt to keep the reproduction right as a core copyright in a
meaningful sense
33. Ibid. For example, web pages browsed on a laptop, will always create a temporary cache version
within the computers hard drive that is later automatically deleted.
34. Miller, E. & Feigenbaum, J. (2002) Taking the Copy out of Copyright, 236, in Lecture Notes in
Computer Science, Vol. 2320, Springer, Berlin. Pg.233-244
35. Supra note. 8
36. Ibid.
37. Ibid.
38. Ibid.
39. For examples of this see www.ustream.tv and www.livestream.com
40. Supra note. 8
41. Ibid.
42. Ibid.
43. Walter, M. M., & Von Lewinski, S. (2010) European Copyright Law: A Commentary, Oxford
University Press, Oxford
44. See Berne Convention for the Protection of Literary and Artistic Works available at
www.wipo.int/treaties/en/ip/berne/ The Convention is stated (in art.2) to apply to literary and
artistic works, which shall include every production in the literary, scientific and artistic domain,
whatever may be the mode or form of its expression. The Guide to the Berne Convention
(available at ftp://ftp.wipo.int/pub/library/ebooks/historicalipbooks/GuideToTheBerneConventionForTheProtectionOfLiteraryAndArtisticWorksParisAct1971.
pdf ) explains that this could include sound recordings in those countries wishing to extend
protection to sound recordings.
45. See Art. 2 of Berne Convention
46. See ftp://ftp.wipo.int/pub/library/ebooks/historicalipbooks/GuideToTheBerneConventionForTheProtectionOfLiteraryAndArtisticWorksParisAct1971.
th
pdf Accessed 18 April 2014
47. Ross, A. & Livingstone, C.,(2012) Communication to the Public: Part 1 Ent. L.R. 2012, 23(6),
169-173
48. Neighbouring rights or Related Rights refer to the rights of performers or makers and
broadcasters of the sound recording. They are the exact equivalent of Authors Rights but are not
connected to the Author. It is also worth noting that there is not a single definition of the term
Related Rights and they vary much more widely in scope between different countries than
Authors Rights.
49. These include performers, record labels and broadcasters. See the Rome Convention:
International Convention for the Protection of Performers, Producers of Phonograms, and
Broadcasting Organisations. Rome 1961 Available at
http://www.wipo.int/treaties/en/text.jsp?file_id=289757 Accessed 27th March 2014
50. Rome Convention art.7(1) See also Ginsburg, J. (2004) The (New?) Right of Making Available to
the Public p. 234-47 of Bently, L. & Vaver, D. (2004) Intellectual Property in the New Millenium,
Essays in Honour of William R. Cornish Cambridge University Press, London.
51. Apparently by any means Rome Convention art. 7
52. Rome Convention art. 13 (a) and (d)
53. Article 11 and 11bis Paris Act 1971 Available at
http://www.law.cornell.edu/treaties/berne/overview.html Accessed 27th March 2014
54. Supra note. 45 [Ginsburg]
55. World Intellectual Property Organisation, Copyright Treaty, S. Treaty Doc. No. 105-17 (1997)
Hereafter to referred to as WCT
56. World Intellectual Property Organisation, Performances and Phonograms Treaty, S. Treaty Doc.
No. 105-17, 36 ILM 76 (1997) Hereafter referred to as WPPT
57. Supra note. 49
58. See Reinbothe, J. & Von Lewinski, S. (2002) The WIPO Copyright Treaties, 24. and Ficsor, M.
(2002) The Law of Copyright and the Internet: The 1996 WIPO Treaties, Their Implementation
and Interpretation Oxford University Press, UK.
59. WPPT Art. 2(g)
60. See Recital 20 of European Directive 2001/29/EC and ITV Broadcasting Ltd v TVCatchup Ltd
[2013] ECDR 9 at 23.
61. See 05 Sociedad General de Autores y Editores de Espaa (SGAE) v Rafael Hoteles SA [2006]
ECR I-11519, Football Association Premier League Ltd v QC Leisure [2011] ECR I-9083, Airfield
NV v Belgische Vereniging van Auteurs, Compositien en Uitgevers CVBA (SABAM) [2011] ECR
I-9363 and ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9
62. ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9
63. See Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v
Divani Akropolis Anonimi Xenodocheiaki kai Touristiki Etaireia [2010] ECR I-37
64. See Sociedad General de Autores y Editores de Espaa (SGAE) v Rafael Hoteles SA [2006]
ECR I-11519, Societ Consortile Fonografici (SCF) v Del Corso [2012] Bus LR 1870,
Phonographic Performance (Ireland) Ltd v Ireland [2012] ECDR 15 and ITV Broadcasting Ltd v
TVCatchup Ltd [2013] ECDR 9
65. Ibid.
66. Supra note. 53 See also Ricketson, S. (1987) The Berne Convention 1996-1986.
67. Rome Convention Art. 12 See also Council Directive 92/100 EEC Art. 8.2 for European
implementation of remuneration right for broadcasting and communication to the public of
commercial phonograms.
68. Phonographic Performance (Ireland) Ltd (PPIL) v Ireland, Attorney General (C-162/10) [2012] 2
C.M.L.R 29
69. All three cases refer to Articles 3 and 5 of the InfoSoc Directive
70. Societa Consortile Fonografici (SCF) v Marco Del Corso (C-135/10) [2012] E.C.D.R
71. Ochrann svaz autorsk pro prva k dlm hudebnm o.s. (OSA) v Lebn lzn Marinsk
Lzn a.s.(Case C-351/12) [2012]
72. The nuances of these cases surround the number of people able to hear the broadcast at any
one time, PPIL took into account all hotel customers present in the building who might be able to
hear the phonogram, whereas in the SCF case, patients in a dentists waiting room were not
numerous enough to be considered public. It could be argued that the term public is still not
properly defined, as there are no set de minimas. Supra notes. 63 and 64. See also Case
Comment, (2012) Playing Music to Dental Patients is not communication to the public, but doing
so in hotel rooms is, EU Focus, 26. And Rizzuto, F. (2012) The European Law concept of
communication to the public and the protection of copyright in electronic transmissions, C.T.L.R
2012, 18(6) 179-197
73. WPPT. Art. 10 See also Carson, D. (2009) Making the Making Available Right Available, 22nd.
Annual Horace S. Manges Lecture, 3rd Feb
74. An equivalent version of this right was also given to authors through WCT Art. 8 and to record
producers through WPPT. Art. 14
75. IFPI, (2003) The WIPO Treaties: Making Available Right available at:
http://www.ifpi.org/content/library/wipo-treaties-making-available-right.pdf accessed 14th April
2014
76. The ECJ clearly made this point in SGAE v. Rafael Hoteles SA1, a case on the transmission of
musical works via televisions into hotel rooms;
It follows from Article 3(1) of Directive 2001/29 and Article 8 of the WIPO Copyright Treaty that
for there to be a communication to the public it is sufficient that the work be made available to the
public in such a way that the persons forming that public may access it. Therefore, it is not
decisive, contrary to the submissions [of the defendants], that customers who have not switched
on the television have not actually had access to the works. See Sociedad General de Autores y
Editores de Espaa (SGAE) v Rafael Hoteles SA [2006] ECR I-11519
77. Supra note. 68
78. See Art. 10 WPPT: Members of the public may access them from a place and at a time
individually chosen by them
79. Broadcasting rights automatically include right to equitable remuneration, see the Council
Directive 2006/115/EC Rental and Lending Rights Art. 8(2)
80. Ficsor, M. (2006) Collective Management of Copyright and Related Rights in the Digital
Networked Environment Voluntary, Presumption-Based, Extended, Mandatory, Possible,
Inevitable? In Gervais, D. (2006) Collective Management of Copyright and Related Rights 58-59
Kulwer Law International, The Hague
81. Supra note 8
82. For instance in Polydor Limited & Others v. Brown & Others [2005] EWGC 3191 (Ch) UK
83. As stated by the Italian Supreme Court in Suprema Corte di Cassazione, sentenza 4 luglio 2006
n.33945
84. Nils Svensson, Sten Sjgren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB, CJEU,
Case C. 466/12 2014 See also Rosati, E. (2014) Early Thoughts on Svensson
communication/making available, new public, altering the scope of exclusive rights available at
http://ipkitten.blogspot.co.uk/2014/02/early-thoughts-on-svensson.html Accessed 4th April

85. Ibid. See also ALAI, (2014) Report and Opinion on the making available and communication to
the public in the internet environment: focus on linking techniques on the Internet E.I.P.R 149
86. Council Directive 2001/29/EC hereafter referred to as infoSoc
87. WPPT Art. 15
88. Article 15 WPPT for the purpose of this Article, phonograms made available to the public by wire
or wireless means in such a way that members of the public may access them from a place and
at a time individually chosen by them shall be considered as if they had been published for
commercial purposes.
89. WPPT at note 12
90. WPPT Art.15(3)
91. Council Directive 2006/115/EC Rental and Related Rights Directive hereafter referred to as
Rental
92. Council Directive 2001/29/EC Article 3(2)
93. Council Directive 2001/29/EC Article 3(1) states: Member States shall provide authors with the
exclusive right to authorise or prohibit any communication to the public of their works, by wire or
wireless means, including the making available to the public of their works in such a way that
members of the public may access them from a place and at a time individually chosen by them
94. Ibid.
95. Supra Note. 73
96. It can be seen that the InfoSoc Directive took WCT Art. 8 word for word: See Recital 23 of the
InfoSoc Directive This Directive should harmonise further the author's right of communication to
the public. This right should be understood in a broad sense covering all communication to the
public not present at the place where the communication originates. This right should cover any
such transmission or retransmission of a work to the public by wire or wireless means, including
broadcasting. This right should not cover any other acts.
97. Proposal for a directive on the harmonisation of certain aspects of copyright and related rights in
the information society, Brussels, 10.12.97, COM 97 (628) final p.25.
98. Supra note. 68
99. Vanheusen, E. (2007) Performers Rights in European Legislation: Situation and Elements for
Improvement A Study Prepared for AEPO-ARTIS Available at: http://www.aepoartis.org/usr/AEPO-ARTIS%20Studies/Study%20Performers%20Rights%20in%20Acquis_AEPOARTIS.pdf Accessed 20th April 2014
100. Ibid. at [18] Croatia, The Netherlands and the Czech Republic consider webcasting to be a type
of broadcasting. In Spain and Sweden it falls under communication to the public and France and
Lithuania stipulate that a simultaneous retransmission by cable of the broadcast deserve
equitable remuneration.
101. Ibid. at [19]
102. Recommendation of the Commission of 25 September 2008 on collective cross-border
management of copyright and related rights for legitimate online music services. Available at
http://www3.ebu.ch/files/live/sites/ebu/files/Knowledge/Media%20Law/Reference%20Texts/EU%
20-%20intellectual%20property/REF%20EU-EPres%20online%20music%20svs.pdf
103. In accordance with Directive 92/100 EEC

104. Supra note. 92 at [33]
105. See Art. 212-3 of the French Code of Practice on Intellectual Property
106. French jurisprudence considered that making available to the public through a network such as
the Internet is considered to be a communication to the public, See La Semaine Juridique JCP 3rd
March 1997, Paris Available at http://jurisguide.univparis1.fr/RD/index.php?view=SSEARCH&action=SHOWFICHE&fid=FR2105
109. Art 108,3 of Spanish IP Law
110. However, there are a few exceptions such as the Czech Republic where some performers have
retained their MA right and licensed its administration to INTERGRAM, and the French collection
society SPEDIDAM indicates in its membership terms that a performers MA right should be
transferred to them, which unsurprisingly contradicts a record contract. For a more in depth
analysis of their interpretations of the exclusive right for making available on-demand services
see ADAMI, (2006) Filire de la musique enregistre: quels sont les vritables revenus des
artistes interprtes Available at:
http://www.irma.asso.fr/IMG/pdf/4063_Etude_remuneration_musique_avril2006.pdf Accessed
28th April 2014
111. See WCT Art. 8,, WPPT Art. 10.and WPPT. Art 14
112. Supra note. 68
113. Supra note. 92
114. Tappin, M. (2007) Opinion on Interactive Radio, Dec, 2006, PPL UK Ltd.
115. Each track will contain a separate performance and a separate sound recording.
116. www.napster.co.uk/radio/featured
117. www.jazzfm.com
118. Supra note. 107 at [41(a) and (b)
119. Now known as BBC Radio iPlayer www.bbc.co.uk/radio
120. www.jazzfm.com/uncut/ondemand
121. Supra note. 107 at [41(c)]
122. www.last.fm
123. www.pandora.com
124. Supra note. 107 at [41(d)]
125. Ibid.
126. See Von Wiegandt, D. (2013) Spotify: Incentivizing Album Creation through The Facebook of
Music, Berkely Journal of Entertainment and Sports Law Vol. 2 Iss. 1 Art. 9 and Haymarket, T.
(2013) Spotify Demystifies its Business Model, Sort OfBut Disgruntled Artists May Not Care,
Readwrite.com, Available at http://readwrite.com/2013/12/03/spotify-businessst

model#awesm=~oDkRr25TFyWGMp Accessed 1 May 2014
127. Spotify describes it mobile tier as Play any artist, album or playlist in shuffle mode for free See
www.spotify.com/us/free It also only allows for tracks to be played a certain number of times.
128. See Bently, L. & Sherman, B. (1995) Performer Rights: Options for Reform Report to the
Interdepartmental Committee, 1 October at 14. and Towse, R. (2007) The Singer or the Song?
Review of Law and Economics at 746 & 747
129. Llu, D. (2012) Performers Rights: muddled or mangled? Bungled or boggled? E.I.P.R 374
130. Supra note. 123. Bently L. et al. In all but two respects, namely duration and depth of protection,
performers protection is at al level virtually equivalent to that of authors
131. Supra note. 124
132. Council Directive 2006/115/EC on Rental and Related Rights
133. PPL defines a Contracted Featured Artist as A performer who is bound by an exclusive
agreement with the relevant record company to perform on the recorded music track. This does
not include agreements to do session work, or producer/ remixer agreements and Other
Featured Artist as A performer who contributes an audible performance to the recorded music
track and is: A lead vocalist not exclusively contracted to the commissioning record company; A
performer not exclusively contracted to the commissioning record company but whose personal
or professional name appears with or is linked to the name of the contracted featured artist on the
track; or A performer who is entitled under the terms of a contract with the contracted featured
artist to receive royalties from sales of the recording. See myPPL User Guide Available at
http://www.ppluk.com/Documents/Member%20Services/myPPL%20User%20Guide%20%20Register%20Repertoire%20GEM.pdf Accessed 2nd May 2014
134. Ibid. PPL defines a Non-featured Performer as a performer who is not a contracted featured
artist or another featured artist. Examples of non-featured artists include session musicians and
backing singers. Studio personnel should also be listed as a non-featured artist if they make an
audible contribution to the recording or if they conduct or provide a similar musical direction to
another performers live performance as it is being recorded.
135. Either live or the fixation of. Supra note. 124
136. Ibid.
137. Copyright, Designs and Patents Act 1988 Sec.20 [CDPA] and Sec. 182CA
138. Ibid.
139. CDPA Sec. 182D(1a)
140. CDPA Sec. 182A allows equitable remuneration when a phonogram is communicated to the
public otherwise than by its being made available to the public in the way mentioned in section
182CA(1)
141. CDPA Sec. 93B
142. Supra note. 107 at [34]
143. However, there is very little data on the specifics of how much income major performers actually
receive from the exploitation of their MA right through Recording contracts. Supra note. 124
144. Supra note. 107 Table 1.4
145. Ibid. at [36]
146. formerly Musiknatet Waxholm

147. Ben, (2015) Johan Johansson uses making available right to exit Spotify, Music Law Updates.
Accessed at http://musiclawupdates.blogspot.co.uk/2015/09/johan-johansson-uses-makingavailable.html accessed 1st October 2015
148. Pacifico, P. (2015) Managers disappointed by Making Available Right omission from ECs single
digital market plans, MBW accessed at: http://www.musicbusinessworldwide.com/managersdisappointed-by-making-available-right-omission-in-ecs-single-digital-market-plan/
149. Depreeuw, S & Hubin, J. (2014) Study on the Making Available Right and Its Relationship with
the Reproduction Right in Cross Border Digital Transmissions, De Woolf and Partners, EC,
available at http://ec.europa.eu/internal_market/copyright/docs/studies/141219-study_en.pdf
accessed on 5th October 2015
150. Supra note 103
151. For details and analysis of this clause among others see Future of Music Coalition (2001) Major
Label Contract Clause Critique, available at https://futureofmusic.org/article/article/major-labelcontract-clause-critique
152. Supra note 147
153. Ibid.
154. For example, the right of remuneration in broadcasts yields 50% of revenues for performers in the
UK. See Caddick, N., Davies, G., & Harbottle, G. (2013) Copinger & Skone James on Copyright,
16th ed. Sweet & Maxwell, London.
155. art. 9 SatCab Dir) 329
156. Supra note. 107 at [22]
157. Supra Note 149
158. Ibid.
159. Supra note. 107 at [22]
160. Ibid. For Example France has linked the amount of remuneration directly to the revenues from
exploitation as it gives performers organisations a clear guideline in their discussions with users.
161. Mercedes Frabboni, D, (2005) Cross-border licensing and collective management: a proposal for
the online context, Ent. L. R, 2005 16(8) 204-208
162. For a full analysis see Batchelor, B. (2007) Antitrust challenges to cross-border content licensing:
the European Commission investigations of collecting societies and iTunes, C.T.L.R, 2007, 13(8)
217-222
163. Supra note. 149
164. Ibid.
165. Ibid.
166. See Gillieron, P. (2006) Collecting Societies and the Digital Environment, IIC 939 The
assumption that the development of online music stores will likely lead to a substantial increase in
the royalties collected on the internet was confirmed on March 13, 2006, when ASCAP
announced that revenues generated by online music stores in 2005 had increased by 50% in
comparison with 2004, for a total amount of US$8.1 million. See full press release at
www.ascap.com/press/2006/031
167. Cooke, C. (2015) Dissecting the Digital Dollar: How Streaming Services Are Licensed and the
Challenges Artists Now Face, MMF, London.
168. See SGAE at [36], [54], FAPL at [186], ITV at [20].
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INSIGHT PAPER

MUSICTANK.CO.UK | MAKING AVAILABLE | 2

One such area of dispute is the Making Available Right.

Forgetting the front-of-house economics of the streaming model for a moment, it is

MUSICTANK.CO.UK | MAKING AVAILABLE | 3

ER - Equitable Remuneration - is a guaranteed remuneration right that sends income

MUSICTANK.CO.UK | MAKING AVAILABLE | 4

MUSICTANK.CO.UK | MAKING AVAILABLE | 5

Chris Ellins Course Leader, and Danilo Mandic Research Fellow

The Dark Side Of The Tune: The Hidden

Become a MusicTank member today: musictank.co.uk

About The Music Managers Forum

About The Featured Artists Coalition

MUSICTANK.CO.UK | MAKING AVAILABLE | 9

About This Paper

First published London, October 2015

MUSICTANK.CO.UK | MAKING AVAILABLE | 10

MUSICTANK.CO.UK | MAKING AVAILABLE | 11

HOWEVER, THE SPEED AT WHICH STREAMING TECHNOLOGIES ARE

Finally, it examines the practical implications this has on performers, specifically

MUSICTANK.CO.UK | MAKING AVAILABLE | 12

The Shift From Ownership To Access

Two years on in 2015, exclusive IFPI-commissioned research demonstrated that

The traditional method of online consumption of music involves the transferral of

MUSICTANK.CO.UK | MAKING AVAILABLE | 13

MUSICTANK.CO.UK | MAKING AVAILABLE | 14

MUSICTANK.CO.UK | MAKING AVAILABLE | 15

The Development Of Communication

MUSICTANK.CO.UK | MAKING AVAILABLE | 16

MUSICTANK.CO.UK | MAKING AVAILABLE | 17

FACTORING THE INTERNET INTO CtoP ONLY SERVES TO COMPLICATE

MUSICTANK.CO.UK | MAKING AVAILABLE | 18

The Making Available Right

MUSICTANK.CO.UK | MAKING AVAILABLE | 19

However, there is uncertainty surrounding the application of a broadcasting right in a

MUSICTANK.CO.UK | MAKING AVAILABLE | 20

Where Does Equitable Remuneration

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(a) for performers, of fixations of their performances95

MUSICTANK.CO.UK | MAKING AVAILABLE | 22

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on a personal computer, or on a mobile phone as belonging to the right of

MUSICTANK.CO.UK | MAKING AVAILABLE | 24

Making Available And The

MUSICTANK.CO.UK | MAKING AVAILABLE | 25

MUSICTANK.CO.UK | MAKING AVAILABLE | 26

The Practical Impacts On Performers

MUSICTANK.CO.UK | MAKING AVAILABLE | 27

If performers are to receive equitable remuneration for the making available of

MUSICTANK.CO.UK | MAKING AVAILABLE | 28

MUSICTANK.CO.UK | MAKING AVAILABLE | 29

2. A New Deal For Legacy Contracts

3. Collective Licensing For The MA Right

A suitable resolution to overcome the weak contractual position of the performer

MUSICTANK.CO.UK | MAKING AVAILABLE | 30

The advantage of Collective Licensing is that is yields equitable remuneration, however,

MUSICTANK.CO.UK | MAKING AVAILABLE | 31

4. Compulsory Licensing For First Reproductions

MUSICTANK.CO.UK | MAKING AVAILABLE | 32

MUSICTANK.CO.UK | MAKING AVAILABLE | 33

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