Assets and Equity

Assets. They have long complicated music industry economics. Record companies have argued that they deserve to own the majority of sound recording copyrights because a minority of artists succeed. They need to keep the copyrights of the 10% of artists who recoup their advances in order to pay off the losses of the 90% who are in debt. While the losses from ‘unsuccessful’ artists are detailed in record company balance sheets, the value of their copyright catalogues does not appear there. Nevertheless, as the Music Managers’ Forum has argued, ‘the copyright catalogues of the record companies are their most valuable asset’. Traditionally, the biggest deals that have been made in the business have arisen when these catalogues have been sold on to other companies. These transactions have happened when the major companies have merged with one another and when larger companies have bought up indie labels. Derek Green, head of China Records, made the economics of the indie sector clear:

Well, the only reason we do it is because on our balance sheets we have the value of our masters and the value of our contracts marked as zero. Therefore technically every year our accountants tell us we’re bankrupt. But what we really know and believe is that the majors will pay millions to buy us.

The crucial factor about these takeovers is that the money went to the owners of the record companies that were being sold. Unless artists happened to have equity in the company, they would gain little, nothing or perhaps even lose out from the sale. There are many stories of artists who found themselves marginalised when transferred to a new corporation.

            The sale of one record company to another did at least have a degree of honesty and transparency about it. The owner of the record company that was being sold would be profiting from an institution that he or she had overseen. The assets up for sale were the recordings that they had invested in, even if some of those recordings had been fully subsidised by artists who had recouped.

Streaming provides continuities and discrepancies with this model. We still have the situation whereby companies are making little profit – even Spotify is running at a loss. The low sums of money being generated by these companies is presenting a problem for record labels, whose income from streaming is, in the first instance, based on a share of advertising and subscription revenues. The record companies’ songs might be being streamed billions of times, but this doesn’t mean that advertisers are willing to invest in these new advertising platforms or that consumers are willing to upgrade to subscription services. Last year in the UK there were 14.8 billion individual audio streams and 14.3 billion video streams. Despite this vast traffic, the money generated by subscription services only constituted 12.4% of the total income for recorded music, while the money from ad-supported services - although it was the avenue for the vast majority of those 29 billion streams - only constituted 3.5% of the same market. In total, the income from streaming contributed £115m to the UK’s recording ‘sales’ last year. Vinyl albums and CDs, meanwhile, contributed £320m. Record companies are nevertheless continuing to have faith in streaming services. If the income generated by these services hasn’t managed to offset the decline in physical and download sales, streaming is having the effect of converting ‘pirate’ users of musical content into legal consumers.

What is more significant for our immediate purposes is that record companies have found diverse ways to generate income from streams. Their share of advertising and subscription revenue is backed up by minimum guarantees. Each record company who enters into a licensing agreement with a streaming company will be guaranteed a minimum sum each time one of their tracks is played. In addition, some record companies receive a guaranteed sum for each subscriber who signs up to the streaming company. These minimums only come into force if the revenue target is not reached. In the instances where this income did come into play last year, it will have been reported as part of the total streaming income of £115m.

There are, however, areas of streaming income that are not reported on the record industry’s balance sheets. Most importantly, record companies demand equity in streaming companies as part of their licensing agreements. Here, as the MMF have identified, there is an echo of the ‘bankrupt’ nature of indie record companies. Just as those old indie companies were aware that their impoverished balance sheets disguised the fact they could be worth millions if sold on to larger record companies, today’s record labels are aware that, when it comes to streaming, the ‘single biggest revenue generator may be the sale of the streaming business, either to an existing major tech or media firm or through flotation on a stock exchange’. What is more, the record labels might even ‘agree to less favourable terms on revenue share and minimum guarantees, where income is shared with the artists, in return for a better deal on equity’.  And who will get the money from the sale of the sale of the streaming companies? The MMF have reported that:

The assumption is that many labels will keep these profits in their entirety, citing clauses in artist contracts that say the record company is only obliged to pay royalties to artists on income directly and identifiably attributable to a specific recording.

Here there is a difference to earlier practice. The record companies will be profiting from the sale of companies that they haven’t even had a hand in creating. The labels might argue that they have provided the essential content that has transformed streaming companies into valuable commodities, but that content is sound recordings, which have been created and in some cases paid for by recording artists. The record companies will not even be selling this content on to the new purchaser of the streaming company: the purchasing corporation will still have to licence the recordings. No wonder then that it is artists, rather than record companies, who are raising questions about the land of streams. 

I’ve Been Making Available All My Life

In recent blog entries I have been taking a look at the recording and publishing industries, as well as at mechanical and performing rights. Mechanical rights, which are also known as reproduction rights, incorporate the right to copy a work and the right to issue copies of a work to the public. Performing rights encompass the right to perform to work in public and the right to communicate the work to the public, which includes broadcasting.

In ‘Adding Up the Publishing and Recording Industries 2014’ I stressed the monetary importance of performing right for both songwriters and recording artists. Under PRS for Music rules, songwriters are automatically entitled to 50% of income whenever their song is licensed for performance, whether this be in a live setting or via a broadcast. Similarly, under the ‘equitable remuneration’ rules operated by PPL, recording artists are entitled to 50% of income whenever their recordings are played in public premises or are broadcast on radio or TV. In both cases these royalties are safeguarded: they cannot be recouped from advances.

In ‘Broadcast Y’Self Fitter’ I stressed the difference between classifying digital income as a performance or a mechanical right. If it is regarded as the former, being considered more akin to broadcasting, then artists as well as songwriters can be entitled to as much as 50% of the royalties. If it is regarded as the latter, being instead associated with physical recordings, the recording artist’s royalty rate can drop to something like 15%.

            I’m not alone in having this interest. Since uploading my last blog entry, the Music Managers Forum has published Dissecting the Digital Dollar: How Streaming Services are Licensed and the Challenges Artists Now Face. It is an important document, providing a detailed and lucid account of copyright and royalties in the digital age. It also provides further detail for the case that I have been making.

            One of the best ways to highlight injustices and inconsistencies in respect of royalties is to compare the activities of the collection societies, publishers and record labels. Publishers’ collection societies view the broadcasting of songs as involving both a mechanical and a performance right. In Britain, both the Performing Right Society (PRS) and the Mechanical-Copyright Protection Society (MCPS) have collected income for radio broadcasts. The performing and mechanical rights are present for online licensing as well, whether this is for online radio, downloads or streams. Consequently, the umbrella society, PRS for Music, operates joint licences to capture both of these forms of copyright.

There are differences in the way that income is divided, however. Perhaps understandably, as the format has an affinity with the sales of records in record shops, downloads are regarded as being more mechanical: 75% of royalties collected under the relevant joint licensing scheme go to MCPS and 25% to PRS. Online radio witnesses the reverse: 75% of income goes to PRS and 25% to MCPS. Again, this is understandable, as radio leans more towards the communication right that is enshrined in PRS activity, than it does towards the right to copy, which is patrolled by MCPS. Streaming sits in between: here the money from joint licensing is divided 50/50 between MCPS and PRS. These splits have implications for songwriters. They might receive similar overall shares in each area: for example, both the mechanical and performance income could be divided 75/25 between artists and publishers. As stated above, however, it is only the performance income that is safeguarded against advances: 50% goes directly to the songwriter and cannot be recouped.

If the recording world were to have parity with music publishing, streaming would be regarded as having an equal split between mechanical and performing rights. It would then follow that record companies would collect the 50% of the streaming royalty that relates to the mechanical right themselves. From this income, they would pay their recording artists a similar royalty to their income for physical sales: this would result in a new recording artist receiving an approximate 15% share. The recording artist should do better when it comes to the performing right. 50% of streaming income would be collected by the relevant performing right society, which in the UK is Phonographic Performance Ltd (PPL). This income would itself then be split 50/50, with half going to the record company and half to the recording artist.

But this doesn’t happen. Record companies collect the whole of the streaming income. According to PPL’s own literature, the labels regard both downloading and streaming as involving the mechanical right only. Their 2011 Annual Report states:

PPL’s online revenues remain limited as the majority of online sound recording licensing is carried out directly by rights owners. This reflects the prevailing view of record companies that downloading and on-demand streaming is analogous to the distribution of sound recordings, a traditional record company function.

Running somewhat counter to this argument, the record companies’ also claim that recording artists are not entitled to ‘equitable remuneration’ when it comes to downloading and streaming because this is an area in which performing rights operate differently.

            Here they refer to the ‘making available’ right, which was formulated during World Intellectual Property Organisation treaties of 1996 and enshrined in EU law in 2001. Dissecting the Digital Dollar outlines the origins of this right:

the communication control, where defined in copyright law, traditionally related to conventional broadcasting which, while easily extended to webcasting, might not apply to other kinds of digital transmission. To ensure digital communication of this kind would still be restricted by copyright, and perhaps to distinguish it from the existing controls that covered broadcasting, some rights owners lobbied to have a separate control added to copyright law called ‘making available’.

The activity controlled by this law is ‘electronic transmission in such a way that members of the public may access the recording from a place and at a time individually chosen by them’. As such, it clearly encompasses downloading, but does not encompass online radio (as a result online income in this area is collected by PPL). The record companies believe that the ‘making available’ right encompasses streaming as well. However, as the MMF report states, ‘not all artists agree’ with this point of view. As illustrated by the way that the publishing sector deals with streaming income, this activity can be regarded as akin to both broadcasting and to record sales.

            Why does any of this matter? ‘Making available’ is the only area of sound recording performance rights that is exempt from ‘equitable remuneration’. Consequently, artists are not guaranteed 50% of this income. Instead, it can be collected by record companies directly and some artists will therefore be on a standard royalty rate as low as 15%. What is more, any royalties collected can be recouped from advances.

            Dissecting the Digital Dollar includes a survey conducted with artist managers. Their responses to two questions are particularly telling. 78% of respondents believed that equitable remuneration should exist for all digital services, including both downloads and streams. However, when asked if they know how collection societies proportion streaming income according to the mechanical right and the performing right, only 3% replied in the affirmative.  

Adding up the Publishing and Recording Industries 2014

Following on from the previous two blog entries, which took a comparative look at UK collection societies and the income earned by live and recorded music, I’ve made a stab at presenting UK recording and publishing income for 2014.

           The statistics come from a variety of sources and it is risky to contrast them in this manner. In addition, I don’t have privileged access to information. What the figures should help indicate, however, is the relative health of each area. I’ve also made a stab at indicating what proportion of money will go to the songwriter or performing artist albeit that, unless the money is paid to them directly by a collection society, there are plenty of deductions and reductions that can be added to the percentages given in the final column. Significantly and spitefully, I have left out the money from live music, other than performance royalties that PRS collects for songwriters and publishers.

While the collection societies and the British record industries’ trade body BPI are reasonably good at indicating the money that has come into the UK, they are less forthcoming about the money that is leaving. The PRS, MCPS and PPL figures include income that is derived via reciprocal links with foreign collection societies, but they fail to state how much is going in the opposite direction. We don’t know how much money is going to foreign songwriters, publishers, record companies and musicians. Moreover, the record company figures also say nothing about the nationality of the musicians who will be receiving the royalties, nor do they mention the record companies’ countries of origin.

            According to Will Page, there was a time when publishers’ income was divided 40:40:20 between performing, mechanical and synchronisation streams. The figures above would indicate that the split is now divided something like 70:22:8. While this new division highlights the decline of record sales, it distorts the income that can be made from sync rights, which in overall terms has risen considerably in the past few years. In fact, the £47.8m figure given in relation to songwriting sync rights seems like a conservative reckoning, as does the £16.3m for sound recording sync rights. The latter figure comes from IFPI, but in 2011 BPI were regarding this income as nearer to £22m.

While the mechanical royalties for songwriters and publishers are certainly declining, these figures show them to be in better health than some PRS for Music information would have us believe. The PRS for Music Financial Review for 2014 lists recorded music as being worth £63.1m. The higher figure of £140.2m quoted here comes from MCPS’s own Report and Statements and includes the mechanical income that is derived from online licensing and broadcasting income.

            PRS and MCPS generally operate joint licences when it comes to online income (there are also a few minor income streams that are jointly licenced between PRS and PPL). There are no figures available to show how this income is split: PRS for Music instead publish a total figure of £79.7m. This figure is around 22% of the £363.8m that record companies derive from downloads (£249m) and streaming (£115m). The proportion of this money that makes its way to performing artists is much debated.

            But how much money in royalties is going to songwriters and artists overall?  A final, admittedly rough, outcome would reveal something like the following:

• Performance royalties for songwriters: £374m (roughly two-thirds of which is non-recoupable)
• Mechanical royalties for songwriters: £119m (recoupable)
• Sync rights for songwriters: £33m (recoupable)
• Performance royalties for musicians: £81m (non-recoupable)
• Mechanical royalties for musicians: £122m (recoupable)
• Sync rights for musicians: £3m (recoupable)

The money’s in the publishing; it is also in performance.