Fair Shares, Fair Markets. Can Music Have Both?

The music we listen to on music services has many creators, facilitators, and distributors. Everyone wants to be paid fairly for their work, and get a fair share of any future revenue. But are any of the different types of contributors – artists, songwriters, etc., – treated so unfairly, or do any of them so systematically disadvantage other groups, that we need systemic change?

The way music and recordings get made and experienced might seem complex to an outsider or a neophyte. In simple terms, composers and songwriters write the music, artists perform it, and if anyone records the performance the person or company who organised it is deemed by law to own the copyright in the recording. Copyright laws make it possible for composers and performers to form contracts with investors, and with people who can turn the music and recordings into revenue. So, for instance, what is commonly called a record deal is an exclusive right to record future performances – the right to make records.

In music’s case this moderate degree of complexity delivers the great benefit of flexibility which allows the same contractual and back end processes to accommodate a very wide range of musical practices with only moderate stresses and strains. Someone who produces electronic dance music entirely in software and at their own behest and risk ends up with copyrights and remuneration rights that they can chance in the market if they wish, and no obligations to anyone else. At the other end of the scale, anyone with the money can commission new compositions, agree terms with a group of musicians, and hire a producer to make recordings.

People at the creative end of the music industry have traditionally made a calculated trade off, between money now, and money in the future if the music should prove successful in the market. If their need for money now is greater, to support a bigger team and a better recording studio or to bring in the services of songwriters with a track record of hits, they can seek investors, who, given the specialist nature of the music industry, are likely to have a track record themselves.

Some of the public arguments over fair pay and fair markets that surface in the music industry seem either wilfully ignorant or cynical. As always it helps to know who has work and investment at risk, and who has already been paid. Some terms used are unhelpful – ‘artist’ for instance, which often conflates the role of composer, performer, and producer of the sound recording. The basis on which each person’s work is contributed is often obfuscated. An instrumental performer should have been paid for work done, while a record company might have made an un-repayable but recoupable advance to members of a band for a recording. Some parties end up with copyrights, some with remuneration rights, and some with a pay cheque.

The music industry – notoriously – doesn’t have a perfect record in attributing work correctly and fairly, and has been know to take advantage of the ignorance of musicians about copyright and contracts. Neither law nor standard industry practice protects this kind of behaviour, and when it surfaces there is justified public outrage. When anyone with an interest says ‘fair’ they invariably mean more; no interest group would get support if they argued for less. Music is no exception. Lobbyists, trade associations, grassroots organisation, unions, politicians; all are engaged in a constant round of appeals to public and regulators to change the terms on which they trade.

A growing market delivers more to most participants of course. And a changing market often re-orders the way it rewards the different contributors. But it is hard to argue that anyone is deterred from entering this complex market, or that the cost of doing so is prohibitively high in all but the least developed economies. So perhaps, while always being alert to the signs of exploitation and foreclosure, we should have a little more trust in the market to decide what is fair.

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