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Aug 4, 2014

No place for artists in online copyright debate

John Ferris from Ministry of Sound Australia disagrees with the suggestion that filesharing will stop if content makers "just make stuff available".

Hayley Mary from independent Australian band The Jezabels performs at Splendour in the Grass

As someone who has worked in many roles in music all my adult life, I was compelled to respond to Bernard Keane’s article from last week and other outlets that have criticised the Online Copyright Infringement draft legislation.

Firstly, to be clear, I do not support the Coalition government as a voter, nor in most of its policies. I have been a member of the Greens one time in my life. I am also anti-censorship. And I am a paid subscriber to Crikey because I support independent, investigative journalism.

In some of my spare time I work for music artist rights. I assist artists so they can be paid from commercial exploitation of their work. I am currently working with a number of industry bodies to find appropriate ways for artist to be properly remunerated for the use of their creative work in public venues across the country. I am not a paid member of music industry bodies such as the Australasian Performing Right Association, the Australasian Mechanical Copyright Owners Society, the Australian Recording Industry Association, or the Phonographic Performance Company of Australia, although I do sit on a couple of committees and I am an official ambassador for writers.

I have also been critical of the content industry criminalising the consumer for file sharing, and have argued for other ways to monetise the digital ecosystems.

I have noted that all articles critical of the draft legislation have demanded that the government and content suppliers should find ways to allow consumers to access content in ways that suit current market conditions, or even allow access for free — without paying for it somewhere or somehow.

No one critical of legislation has yet to suggest a real solution, from what I’ve seen. The gist is to just make stuff available and people will stop file sharing. Critics often point to cases like Foxtel’s abuse of its commercial monopoly of Game Of Thrones as to why file sharing exists — criticisms with which I agree to some degree. It seemed like madness of Foxtel/HBO to not allow, for example, iTunes to make the show available at a reasonable timeframe. But now they have — as a commercial decision, and it will be interesting to see if it works in the longer term.

But besides those silly decisions and somewhat extreme cases, I believe that content owners in general are attempting to come to terms with the impact of the digital world on their business and are looking for ways to remain active. I’m sure Crikey would understand that position. It’s easy to say that all businesses should allow access to their product for free, just because it can be done.

Putting aside the situation where content is “imported” into Australia, if you look at Australian content only, music is now “freely” available on Spotify, Pandora, etc, through streaming services. For Australian artists, making music available this way has not stopped file sharing of songs — in fact, it seems to have encouraged the belief that music should be free all the time. It continues to put downward pressure on content suppliers’ prices. You might say that this is the “modern” way, but how do you expect artists to get paid for their work, which is seemingly valued by those who want to listen to it?

“Why is the consumer considered paramount? What has happened to the artist in this discussion? Journalists seem to conveniently forget the artists in the middle and focus instead on painting a demonised image of the nasty, big companies that run the entertainment business.”

These now free streaming services pay very, very little back to an artist. If an artist has a label representing him or her, the new terms are often at least 50% back to the artist. But even then, the artist is still only getting approximately 0.001 cent per stream. At least with a download, such as from iTunes, the artist is likely to get 0.4 cents per download. That’s 400 times more than streaming! But unlike what Keane has said in his article, file sharing has not disappeared. The only way artists are able to deal with this is to just give it away to as many people and places as possible in the hope that one day they may receive something in return.

So adding the prevalence of file sharing of music to the bugger-all income from streaming means artists are getting very little. And that’s not because of some international multinational company record label or distributor ripping them off — streaming, not file sharing, is cannibalising paid downloads. Australia has a very crowded market in regards to streaming music services.

It would be preferable, now that “free” music is available to anyone through streaming, that file sharing would go away. But it’s becoming clearer that large search engines are very keen to keep file sharing alive well. Perhaps it may be time better spent for Crikey to investigate the power of Google and other companies that perpetrate the myth that shutting down file sharing sites is censorship.

To suggest that the music industry — labels and artists — have not responded to the challenges and demands of consumers is misleading. Streaming services are widely available and very damaging to the efforts to find a solution to the issue of file sharing. And Crikey, which gets paid by subscribers, is reinforcing the notion that music artists are somehow depriving struggling consumers — who actually just want to get artists’ work for free. Why is the consumer considered paramount? What has happened to the artist in this discussion? Journalists seem to conveniently forget the artists in the middle and focus instead on painting a demonised image of the nasty, big companies that run the entertainment business.

In the recent case where iiNet was found not to be responsible for what went through its “pipes”, it was the large internet providers as well as lobbying by YouTube and Google that promoted the myth that stopping file sharing was akin to censorship. And they were successful! They are also currently propagating the notion that we need to change the Copyright Act to allow “fair use” of content so they can (among other things) further erode payments to artists for their work.

This is the myth of the creative, “free” internet, but in reality it is the pursuit of using others’ creative work for the benefit of large search engines such as Google and their free user site YouTube. It’s all very well for YouTube to be saying these things, but the payment from YouTube to artists — whose work generate their massive income and profit — is pathetic and minimal. The rate YouTube pays for the use of music is even less than streaming services.

In regards to the draft proposal, I believe that music industry players are looking for the opportunity to be able to get a court order to shut down a file sharing site — nothing more. It is not directed at consumers but at businesses that break the law. I don’t believe that is censorship; it’s just like shutting down a manufacturer of “fakes” and the theft of others’ work and goods.

Given that music content providers have provided consumers with full access to “free” music through streaming subscriber services, perhaps journalists could change their perspective and start helping Australian artists actually get paid by writing articles that are critical of the big search engines that drive the free file sharing businesses instead. After all, who do you think is making money from these file sharing business? Or do you think it’s just a bunch of friendly consumers happy to share their love of music with other free spirits?

It would be good to see some balance and further investigation from media outlets rather than just peddling of myths created by one of the largest companies in the world — which, by the way, pays very little tax in Australia.

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10 thoughts on “No place for artists in online copyright debate

  1. Arty Boxer

    I wonder if it would be more useful to consider the copyright holders separately from the artists. From what I have read, even back in the days of vinyl, the artists struggled to get much return from the music distributors.

  2. 81dvl

    Thank you John for the lucid and apposite article, showing admirable restraint in your expression given the cancer this is to performing artists.

  3. Nicholas

    Have file-sharing and streaming significantly changed the financial returns which creative workers get from their products?

    My understanding is that it has always been production and distribution companies that get the lion’s share of the profit from creative works. A tiny fraction of creative workers win the lottery by reaching a commercial scale audience. A small proportion beneath them make a decent but not spectacular living. The vast majority of creative workers make nothing or very little from their work and rely on other jobs for income.

    Has that situation actually changed because of digital technologies?

    How can digital technologies, industry regulation, and consumer consciousness be harnessed to redistribute wealth away from production and distribution companies and towards artists? I’m not saying that production and distribution companies don’t add value and don’t deserve a cut. But I would suggest that creative workers in general – not just the super stars – need a larger share than they get now, with production and distribution companies getting correspondingly less.

    It would be great to hear John Ferris’s views on how to achieve that. The argument he makes in this article merely echoes the self-interested rent-seeking of a lazy and complacent skein of companies which begs governments to protect its outdated business model instead of adapting its business model to new technology and consumer demand.

  4. scott redford

    As a visual artist for over 30 years I want to say that my images are often used without my permission or payment. From the National Gallery of Australia down through the State Galleries it’s rare to be asked copyright permission (there are some exceptions) and when we get to local government Galleries forget it! I am not so into copyright however it is the only thing that stands between a visual artist and the rampant exploitation of artists in the Government Art system of Australia. I personally found this when the NGA in Canberra flouted copyright laws but were stymied by the Royal Academy, London. Why complain about file sharing when the Art Gallery of SA doesn’t ask for copyright clearance from artists? They’ve never asked it from me.

  5. tinman_au

    Why torrent when you can stream for free? Some of your arguments aren’t very logical.

    And I think you’d do better for artists if you took it up with their publishers/producers John, they are the ones that are, and always have been, shafting artists…

  6. Juffy

    If the payment rate to the artist for digital download is 400 times that of streaming, how does that compare with the number of ‘purchases’ that actually occur via each method? If 400 times more people stream a song than buy a digital copy of it, is that not the same result to the artist? Is it possibly even better, as 400 more people listened to the artist and might (heaven forbid) like it enough to hunt down some more songs?

    After all, wasn’t that kinda the premise behind playing songs on radio? Radio plays song, person hears song, person likes song, person buys LP, artist buys hookers and blow and makes more songs.

    Speaking of which, how does that 0.4c/play compare to radio?

  7. Stuart Coyle

    I wonder is John has read Janis Ian’s take on this from a dozen years ago?

  8. Bento

    Talent and hard work are not, nor will ever be paths to steady income in entertainment for most participants.
    The majority of artists get almost nothing from recorded music and this probably won’t ever change. However, the world is getting smaller and if you can connect you may still be able to make something of your music.

    From a consumer point of view, I think recorded music is the bait for a live performance. Develop live performance that demands attention and that I will happily pay for.

    These days, it is much easier to record, publish, advertise your talents, connect with potential audiences and have a go at making it. The bummer is, you’re competing with a content explosion. For every bedroom recording success story, sadly, there are 2 million more people who would rather watch a video of a tiny hamster eating tiny burrito.

  9. Dogs breakfast

    “In the recent case where iiNet was found not to be responsible for what went through its “pipes”, it was the large internet providers as well as lobbying by YouTube and Google that promoted the myth that stopping file sharing was akin to censorship.”

    Well, not really. IInet claimed that it was not their business to tell people what they could look up, or to pay for the work required to investigate whether other businesses were legit or not. It was a fair argument.

    Google and youtube are a different matter, and they may well be evil, I suspect they are, but taking the fight to them was hard, so the government with the backing of the most conflicted of commentators, one Mr Murdoch, supported going after the ISP’s. It was the wrong solution to the wrong problem.

    It’s google and youtube that the industry of ‘artists’ need to go after, not the ISP’s. The hosts, not the pipe layers.

    Otherwise, while I share you concern for the artists, the winners in this game of drones won’t be the ones who spend all their time fighting it, it will be the ones who work around it, and come up with a new business model.

    You seem to be unaware that the music industry in particular in Australia is thriving, in terms of quality of music, number of artists etc. More people are hearing live music more regularly right now than I can ever remember, and so much of it home grown.

    The money these days is in the performance, not the copyright.

  10. mark holden

    I completely agree with this article – I have been receiving spottily royalties for a number of years now from Europe – my half of the song gets .00015 cents per steam – if its played one million times I make $150 – fortunately I’m the publisher so I split that $150 with me . Music online is free – we need to place a levy on the pipe – thats what people are prepared to pay for – their monthly mobile bill and their monthly broadband bill – thats it – follow the money ! Its called a culture tax in France and its the only way for creators to get paid . It goes into a fund like Apra and PPCA and those creators who register share that pool – will Malcolm get behind that ? will Bill ? its the only way for us to be paid for our creations bar the odd song that goes thru the roof and generates global airplay and syncs .