Nexus: CMOs

The first Spotify Awards and the role played by streaming services in access to digital content

Read

Spotify has announced the launch of its first awards. The ceremony will take place in Mexico City, the “world’s music-streaming mecca” [Merpel says, "Yes, it is true. See below.”].

The Awards

Life without music is not life!

The Spotify Awards will be held on 5 March 2020, which will be broadcast live through a partnership with WarnerMedia’s Turner Latin America.

The awards categories and winners will be selected based “entirely on user-generated data”, namely Spotify users’ habits. This will be the first ceremony awards based completely on streams, which, according to the company is “a true reflection of what fans are listening”. As readers may recall, Apple also announced its first music awards last December, however, the winners were selected by a combination of its editorial team’s opinions and the amount of streams (read more here).

While the categories and the list of finalists have not been released, the Spotify Awards playlist, including some of this Kat favourite singers, is already available here.

The Venue
The venue announcement was made in light of Spotify’s streaming data numbers published on 19 November 2019, in which Mexico City was named as the “world’s music-streaming mecca”, ahead of cities like New York, London, and Paris. According to its records, Mexico City “has the most listeners on Spotify globally”.

The streaming company highlighted that, since the launch of Spotify in 2013, Mexico moved from being Spotify’s first Latin American market to its “largest listener base worldwide”.

In addition, Spotify identified a correlation between the increase of streaming when a live performance is about to take place in Mexico. For instance, according to its records, the streaming of the rock band Pixies increased 346% “just one week before a series of performances in Mexico City”.

Furthermore, Spotify indicated that Mexico City has become “a magnet for major live acts and inviting rising singers and songwriters to connect with fans and make their mark”. But tradition is also alive and well in Mexico City; the city is still a big market for classic rock bands such as Queen and the Beatles, with 1,278,133 and 506,714 monthly listeners, respectively.

This is not the first report that has put Mexico in the spotlight of music streaming stats. On 24 September 2019, the International Federation of the Phonographic Industry (IFPI) published the “Music Listening 2019” report, which was based on global research conducted in April and May 2019, regarding the music listening habits of the online population aged 16-64 in 21 countries. Among the other interesting results, Mexico topped the list of countries whose people spent time listing to music each week (25.6 per week) and ranked third among the top six countries with the highest percentage of people who describe themselves as music lovers.

Comments
Technological innovations, such as the Internet and digital formats of music, have revolutionized the industry, leading to a decline in the purchase of physical formats and an increase in access to digital content worldwide. As such, there has been a debate about the role played by music streaming services providers (e.g. Spotify) in this regard.

On one hand, it is argued that music streaming has been a very useful tool in the fight against online piracy, constituting a notable share of the recorded music industry revenues each year. For instance, 47% of the global revenues of the music market derived from streaming (paid subscription and ads supported) in 2018, according to IFPI’s stats. In this sense, it is estimated there were 255 million users of paid subscription accounts by the end of 2018, an amount that is expected to increase this year.

On the other hand, online copyright infringement is still considered a threat. According to IFPI’s stats included in its “Music Listening 2019” report, 27% of the online population aged 16-64 in 21 countries are still listening or downloading music. As such, illegal downloads ripped from streaming has become “the most prevalent form of online music copyright infringement”. Still, 62% of those accessing illegal content “would choose on-demand streaming … if copyright infringement was no longer an option”.

Moreover, music streaming services providers have been involved in lawsuits and heated debates regarding fair compensation to songwriters. In August 2019, Spotify, under the recently enacted Music Modernization Act (MMA), was sued by Eminem’s publisher in the United States District Court for the Middle District of Tennessee, Nashville Division (Case 3:19-cv-00736), alleging unlicensed streaming of Eight Mile compositions “on Spotify billions of times”.

The plaintiff alleged that Spotify did not have a “direct, affiliate or compulsory” license neither did it meet the requirements for limitation on liability under the provisions of the MMA, inter alia regarding the efforts required of a digital music provider (DPM) to identify and locate the copyright owner of the used musical work. Accordingly, it requested a declaration that MMA’s “retroactive elimination of the right to profits attributable to infringement, statutory damages, and attorneys´ fees … is an unconstitutional denial of substantive and procedural due process, and an unconstitutional taking of Eight Mile´s vested property right.”

As readers may recall, MMA has been named as “the most significant piece of copyright legislation in decades” in the USA. Its Title I - Music Licensing Modernization Act has received more attention since it provides that a DMP “may obtain a blanket license” (i.e. compulsory license) for digital uses (e.g. streaming, permanent or limited downloads) “by submitting a notice of license to the Mechanical Licensing Collective” (MLC), which is the entity in charge of receiving “notices and reports from digital music providers, collect and distribute royalties, and identify musical works and their owners for payment.” Title II - Classics Protection and Access Act then refers to the applicable provisions to sound recordings fixed before 15 February 1972. Title III - Allocation for Music Producers Act goes on to regulate the process by which producers, mixers and sound engineers receive royalties through a collective management organization (CMO) designated for such purpose, which currently is SoundExchage.

Certainly, streaming services have played an important role in the change of consumer habits regarding music listening and access to digital content. In light of this, it will be most interesting to note the mood at the first Spotify Awards.

Image 2 was taken from the report “Music Listening 2019”, published by the International Federation of the Phonographic Industry (IFPI), which is available here.
Image 3 was taken from the report “IFPI Global Music Report 2019”, which is available here.

Kenya amends its Copyright Act to ratify the Marrakesh Treaty and address a myriad of other issues

By 0x000216

Read

0 Comments

In September, Kenya’s President signed the Copyright (Amendment) Act 2019. The Copyright (Amendment) Act 2019 amends Kenya’s Copyright Act of 2001 (the Principal Act) and is aimed at addressing inter alia, concerns about the collection and disbursement of royalties to authors and copyright owners.

Kenyan flag

The Amendment Act does not repeal the entirety of the Principal Act. It only repeals certain sections of the Principal Act such as section 21 (appeals against the decision of the Copyright Board to now lie to the Copyright Tribunal); section 26 (nature of copyright now separated from provisions on limitations and exceptions); section 48 (jurisdiction previously held by a “competent authority appointed by the Minister” now held by the Copyright Tribunal appointed by the Chief Justice); etc.

Some highlights of the Amendment Act include:
Sui-generis approach to the protection of traditional knowledge and traditional cultural expression: Section 2(e) deletes the definition of “folklore”. With this, it appears the protection of folklore has been removed from “main stream” IP (the copyright bit, at least). The terms “traditional knowledge” and “cultural expressions” are broadly defined under the Act for the Protection of Traditional Knowledge and Cultural Expressions and would include “folklore”.

Wider range of protected subject matter: “Works” are defined under the Amendment Act to include translations, adaptations, new versions, or arrangements of pre-existing works, and anthologies or collections of works, once they are original by reason of the selection and arrangement of their content. See section 2(g). This clarification is notable particularly with respect to the question of whether musical arrangements are protectable in the same manner as primary works. For instance, in South Africa, there have been issues with Southern Africa Music Rights Organisation (SAMRO)’s Distribution Rules, in which arrangements of folk music are treated as non-original works and partly in the public domain. See discussion on The IPKat here.

Ratification and domestication of the Marrakesh Treaty: The Amendment Act contains exceptions that address access by people with disabilities to works that are protected by copyright and related rights. The exceptions go beyond the Treaty to include other forms of disabilities beyond visual impairment and print disability. See the definition of “beneficiary person” in section 2(m).

AI-generated artworks are recognised: Section 2(m) defines “artwork” to include original work of visual art produced under the authority of an artist. It seems that AI-generated artworks may be deemed as produced under the authority of an artist. By extension, it may be possible to recognise the “authorising” artist as the author of the artwork.

Register of copyright works: Section 10 of the Amendment Act requires the Copyright Board to keep a register of copyright works. Extracts from the register, where certified by the Board, may be admissible in evidence. The use of certified extracts in evidence would be quite helpful to authors and copyright owners seeking to prove the existence of their creative outputs. However, there is the question of the feasibility of maintaining such register physically as opposed to a digital or electronic register. Also significant is the question of whether the collation and recording of relevant information into the register will include retrospective information.

Digital advertising may remove safe harbour for ISPs: Section 24 of the Amendment Act provides safe harbour for internet service providers which exempts them from liability for copyright infringement subject to specified conditions. One of these conditions is that such ISP does not “in any way promote the content or material being transmitted”. This raises the question of whether ISPs like YouTube that create automatic playlists may be considered as “promoting” the contents of such playlists.

Takedown notice requirements may be too onerous: A new section 35B requires persons filing a takedown notice to inter alia “identify the rights being infringed”. See section 35B(2)(e). Further, a malicious takedown notice is a crime and attracts a fine and/or imprisonment. See section 35B(8). In the case of the former, filing a takedown notice may be cumbersome for less savvy authors who may not be able to identify the rights being infringed under the Copyright Act. Criminalising the filing of a malicious takedown notice appears too severe especially given that the filing of a takedown notice does not guarantee a takedown nor does it necessarily remedy the (previous) act of infringement.

Fair dealing v fair use: The Second Schedule to the Amendment Act contains the exception to copyright protection. According to paragraph 1, “the exclusive rights under section 26 shall not include the right to control— (a) the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events”. The expression, “fair dealing” is not defined in the Act. However, Kenya’s Supreme Court has had the opportunity in 2014 to consider whether the purposes considered as fair dealing (scientific research, private use, criticism or review, or the reporting of current events) were closed. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, the court held that the “must-carry” rule in Kenya’s Broadcasting Regulations fell under the fair dealing provisions of the Copyright Act despite not being enumerated within the list of purposes. See In the public interest: how Kenya quietly shifted from far dealing to fair use for some in-depth discussion.

In the opinion of this Africa Correspondent, one of the positive things about the Copyright Amendment Act 2019 is the extensive provision regarding the corporate governance of collective management organisations (CMOs). See section 31 of the Amendment Act generally. The Amendment Act (section 46B(2) stipulates a requirement that I have advocated here as a panacea to the corporate governance woes of collecting societies in Nigeria – provide a tenure for directors and chairpersons of CMOs. The Amendment Act also touches on a matter that forms part of this Africa Correspondent’s current research for the Open AIR project: gender representation in the corporate governance of collecting societies. Section 34 of the Amendment Act requires the Cabinet Secretary to make regulations that may prescribe “guidelines on the gender representation and participation of persons with disability and other marginalized groups on the boards of collective management organizations”. While recognition of gender “blindness” on the boards of CMOs is laudable, there are concerns around the frequent lumping of gender issues with disability issues and unique concerns and interests of “marginalized groups”. How to address the question of representation without conflating the obvious unique needs of each “marginalised group”?

There are several other interesting provisions of the Amendment Act. However, as I always say, the taste of any statute is in the application and/or enforcement. We wait to see how Kenya’s Copyright (Amendment) Act will be applied and/or enforced.

Nexus

The first Spotify Awards and the role played by streaming services in access to digital content

Kenya amends its Copyright Act to ratify the Marrakesh Treaty and address a myriad of other issues

Recent Posts

Facebook