More than 1500 Italian Authors signed a petition against an attack on the Remuneration Rights of all Creators of the world

  • Fairness Rocks news

    SOURCE: Creators News

    Date: April 25th, 2018

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  • Music Modernization Act Unanimously Passes House of Representatives

  • Fairness Rocks news

    SOURCE: Variety

    Date: APRIL 25, 2018

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  • HOW SONGWRITERS AND COMPOSERS ARE CONTRACTED AND PAID

    The function of a music publisher on behalf of a songwriter or composer is threefold: To fund the production of original works; to promote the works by seeking exploitation opportunities; and to manage the licensing of rights and the resulting income, paying the money to the author according to contract.

     

    Different cultures prevail as between a record label and a publisher. A song can have a much longer life than a single track, so the impulse in the label is to maximise earnings from the moment of release, knowing there is not likely to be a long exploitation life ahead. In contrast, for music publishers, because of the combined revenue opportunities of film and tv usage, advertisements and cover recordings by a range of artists, it is the longevity of a song that drives the business – though a huge hit by a new artists will bring out the chequebooks from the off because of the value of royalties generated by the song’s communication to the public (such as broadcasts).

     

    There are independent music publishers who do an excellent job nurturing their catalogues. But in a marketplace where three major companies dominate – Sony/ATV, Universal Music Publishing and Warner Music – it is difficult to see how effective promotion can be for the “majors” when they own hundreds of thousands of songs which are being “promoted” by internal promotional teams. It is quite a task to secure song placements in film, tv, games, ads, and cover versions by other artists for every song in the majors’ catalogues.

     

    There is a key principle embodied in the structure of rights and revenues from music publishing. While a label pays a royalty only after recoupment of an advance, acquires complete control of the sound recording copyright, controls a performer’s services but CMO income is not guaranteed, it is different for songwriters and publishers.

     

    Firstly NOT ALL the rights in the songs are granted to the music publisher. The communication to the public right (which includes the making available right) is granted by the songwriter to the songwriter’s local CMO. The music publisher acquires all the other strands on the copyright bundle but not the communication to the public right. (Check out the section on Collective Management Organisations.) The publisher has only a right by contract to share in the revenue that this right generates, but not ownership of the right itself.

     

    In every country but the USA the songwriter’s assignment to their local CMO is global and exclusive. The effect of this (everywhere but in the USA) is that the CMO issues the licences, shares data with other countries’ CMOs and collects domestic income from domestic licensees and foreign income from foreign CMOs. Nobody but the CMO can issue a licence or collect income. In the USA a songwriter’s assignment is non-exclusive which enables the publisher, subject to the express terms of the individual songwriter’s contract, to issue license direct to users. This does not always work to the benefit of the writers……

     

    The second difference between a performer’s situation with a label and a songwriter’s with a publisher is the revenue flow and the sources. A performer will receive some income – after their advance – from a CMO (see How Performers are Protected and Paid in the Library) but only in countries where the law makes this possible. But a songwriter will always receive a minimum of 50% from CMO in nearly every country in the world, and from the moment their songs start to be exploited. This revenue comes direct from the CMO and cannot be used by the publisher for recoupment of any advance. The other 50% is paid by the CMOs to the publisher and it is that half plus other income the publisher collects from the rights they DO own, that recoups any advance paid to the writer. It is because of this contractual right to income that publishers have Board representation at CMOs. The writers who share the Boards of the CMOs often have to fight hard to keep the writers’ interest to the fore in policy and distribution decisions. Be surprised.

     

    Publishers customarily pay an advance and may contract for a series of option periods during which a songwriter delivers a pre-agreed number of works. This is the model if the songwriter is either a performer as well (thereby guaranteeing song income from live performances or from the copying of the song on recordings), or has a reputation as prolific, or the publisher has sufficient confidence in their abilities. A writer will continue to have an exclusive relationship with the publisher for as long as the options are exercised and after an agreed period of time is free to take their song writing skills elsewhere. But the copyrights that the songwriter has created and has assigned to the publisher (as ownership of most but not all of the bundle of rights) might stay with the publisher for the full period of copyright – life of the author plus a number of subsequent years (plus 50 to 70 depending upon the country’s statutes). Writers with strong negotiating status can agree that the rights will revert to them after a pre-agreed time. And writers that are very powerful can do deals whereby they engage only the publishers’ services of promotion, funding and administration, but do not pass ownership of the copyrights across.

     

    It is the publisher’s responsibility to manage the licensing of the works for usage not just by an original singer/songwriter, but to find cover versions by other artists or use of the songs in ads, films and the like. Revenue from the copyrights assigned to the music publisher will be generated every time one of the so-called acts restricted by copyright takes place: copying (onto a CD, DVD, into a film or ad, copying and printing sheet music or from income from arrangements/adaptations, and the publisher’s 50% from CMOs.

     

    The share of revenue between a publisher and a writer is very different from the customary level of royalties from performers. The royalty split will be anything from 50/50 to 80/20, and can be 90/10 for the very successful. So, remember that 50% that a publisher gets from the CMOs? Well, after recoupment of any advance, the publisher may have to share a portion of that with a songwriter to conform to the royalty split agreed by contract. Old contracts still prevail where it is a strict 50/50 split. But more modern contracts will oblige the publisher to give say 75% of income from their revenues to the songwriter – so most of income from copying CDs and DVDs for example is paid to the writer.

     

    And where that 75/25 split applies to the income from communication to the public – live performance, radio, tv and streaming – the publisher will, after recouping the advance, have to use some of “their” 50% to top up the 50% the writer has already received. So, in the case of 75/25, the publisher will have pay onward half of their 50% (ie 25% of the gross) to bring the writer’s share up to the agreed 75% in the contract.

     

    From this one can see that in a band, it is the person who writes the songs that will be earning between 8 and 11 times as much as the band members signed only to the record label as performers. One very good way to keep a band cohesive is to agree – up front – to share song writing income, or credits and income, equally among all members of the band. That will leave “musical differences” to be the basis for disputes.

     

    A publishing contract has approvals provisions, so writers may be able to influence how their music is used in commercials for example. The contract will identify the length of the option periods, how often the publisher accounts, the rights of audit (because auditing is essential to make sure accounting is correct),and how long the publisher will own the copyrights after the actual contract is finished.

     

    One last word about streaming. Digital services have to acquire music licences from both labels and publishers – for the recording and the song. For the songs the services have to acquire the right to communicate to the public from the CMOs and the right to copy the songs from the publishers.

     

    The act of downloading a song uses the copying element of the copyright as well as a communication to the public. The money from downloading is weighted to allocate more to the copying element than the communication. This has helped publishers recoup advances that used to be recouped from revenues created by copying CDs – a market that has dived since the digital revolution.

     

    But for streaming one might expect that communication would take the lion’s share of every dollar, and the transient copy be a minor part of the allocation. In some cases this is indeed true. But increasingly, powerful publishers, have pressed CMOs to agree that the weighting should be 50/50, for communication/copy. One can see that the challenge of recoupment from diminishing copying revenues might prompt this commercially, but those contractual “three little words” (see Shocking Facts) tip the scales in favour of publishers. Remember, unless a publisher can match the money “directly and identifiably” to the individual songs, no payment will be made to the writers. Added to that the internal song identifiers used by publishers being different from those used by CMOs, and there remains an inbuilt disincentive for publishers to maintain accurate data internally. Or data and identifiers that match those held by the CMOs. Lump sums monies that cannot be exactly matched to individual songs in the catalogue can be retained, which is good news for publisher executives’ bonuses and shareholders.

  • Fairness Rocks news

    SOURCE: Fairness Rocks

    Date: April 24, 2018

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  • Spinal Tap’s Fairness Rocks platform has been renewed as a Campaign

    To coincide with World Intellectual Property Day (Thurs 26th April), Spinal Tap’s Fairness Rocks platform has been renewed as a Campaign, with the launch of its website today.

    As Amanda Harcourt, the architect of the Campaign and independent adviser to authors and performers in the creative industry on their intellectual property rights, explains:

    “The Fairness Rocks campaign was born out of the Spinal Tap creators’ knowing that they were not singled out for special treatment. In fact, only a select few highly successful creators actually receive a fair share of the benefits arising from the exploitation of their work.

     

    Fans and audiences may not realise the economic truth behind the music and film industries. If consumers are repelled by T-shirts manufactured by exploited labour in the developing world, it struck us that, when informed of the commercial realities, audiences may similarly disapprove of the lack of fair treatment the talent receives at the hands of corporations exploiting their music and films.

     

    To make matters worse, the practices of powerful tech companies have devastated the incomes of writers, composers, performers, and film makers right across the world.

     

    The truth is that both power and financial imbalances, between the talent and corporations, have persisted for too long. Individually, the talent has a weak bargaining position; often creators are required to sign contracts that fly in the face of the fundamental principles of laws designed to protect them.

     

    At Fairness Rocks it is our intention to shine a light on some of these unfair practices, to help educate the public, and to inform young creators beginning their careers in music and film. We want to highlight the work of the talent advocacy organisations and to be a place where useful, up-to-date information can be found for media, moviemaker and musician alike.

     

    Most importantly, we hope that filmmakers, songwriters, musicians and actors of all stripes will join Fairness Rocks and help us give them a unified voice. We want to provide a platform for the talent to speak openly and share their experiences of their industries.

     

    Put simply, all the talent should be receiving a fair share of the fruits of their work.

     

    Sunlight is a great disinfectant – so if the transparency of the Fairness Rocks campaign can help change some deeply-entrenched industry norms, the creative industry’s future will look a little bit brighter.”

  • Fairness Rocks news

    SOURCE: Fairness Rocks

    Date: April, 2018

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  • ‘WE’RE ON LIFE SUPPORT’: IS STREAMING MUSIC THE FINAL NOTE FOR PROFESSIONAL SONGWRITERS?

    In 2013, Andre Lindal, having finally climbed to the pinnacle of pop songwriter success, surveyed his works and despaired.

    The dubstep-tinged heart-throbber he had written for Justin Bieber, “As Long as You Love Me,” was a smash hit, reaching No. 3 on Billboard’s Top 40 rankings. The music video, essentially a short film starring actor Michael Madsen, had garnered over 34 million plays on YouTube in its first year. Pandora users had listened to the track more than 38 million times.

    Read more: https://psmag.com/economics/is-streaming-music-the-final-note-for-professional-songwriters

  • Fairness Rocks news

    SOURCE: Pacific Standard

    Date: April 23, 2018

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  • Cardi B Sets Apple Music Record For Most Streamed Album by Female Artist in One Week

  • Fairness Rocks news

    SOURCE: Billboard

    Date: April 13, 2018

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  • Death By a Thousand Papercuts: How Streaming Services Protect Themselves From Lawsuits by Burying the Copyright Office in Paperwork

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    SOURCE: Billboard

    Date: April 12, 2018

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  • Music Publishers Win Major Copyright Fight Over Streaming of Legendary Rock Concerts

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    SOURCE: The Hollywood Reporter

    Date: APRIL 10, 2018

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  • HOW RECORDING ARTISTS ARE CONTRACTED AND PAID

    A traditional contract between a band or solo artist and a record label is an interacting mesh of rights and obligations borne by both parties. No prizes for guessing which party carries the most obligations and which leads the field in having rights. That said, each party agrees to honour their respective roles in the deal.


    ARTISTS’ OBLIGATIONS
    To record and deliver a recording
    To promote the recording
    To pay for the costs (via a recoupable advance) including studio costs, instrument costs, the producer, the session musicians and singers.
    To make one or more videos
    To work to the best of their abilities
    To deliver subsequent recordings upon receipt of option exercise by label
    To share with the label income from merchandise, publishing, sponsorship and tour profits (if a 360 deal)
    ARTISTS’ RIGHTS
    To receive royalty accounting but only where the money is directly and identifiably attributable to their work.
    To audit the label (upon notice)
    To be consulted over (possibly approve) artistic choices such as producer choice, song choice, use of the tracks in ads or films
    To collect neighbouring rights income in territories where entitlement exists

    LABELS’ OBLIGATIONS
    To pay the advance specified by contract
    To reproduce, manufacture, (promote) and distribute the recordings
    To collect royalties, account and pay royalties to the artist but only where the money is able to be matched directly and identifiably with the artist’s work.
    To pay the mechanical licence fee for copying the songs on the recordings
    LABELS’ RIGHTS
    To control the exclusive recordings services of the artist & to exercise options and call for further recordings
    To require delivery of the recordings
    To own the copyright in the recording (in perpetuity)
    To determine the marketing strategy
    To conclude licence agreements with subsidiaries on customary company terms and receive foreign income
    To conclude licence agreements with third parties on terms in their absolute discretion and collect revenues
    To collect the 50% share of neighbouring rights income
    To be paid a share of income from merchandise, publishing, sponsorship and tour profits (if a 360 deal)

    A performer is supplying services not delivering a copyright. If however, they have independently paid all the costs of production themselves and therefore own the recording’s copyright, they can grant a short term licence to a label in exchange for the label’s manufacture, distribution and promotion services.

     

    The label’s function is to fund, manufacture, distribute, promote and protect the copyright sound recording that results from the artist delivering their services as a recording artist. Unless the contract specifically says otherwise the label will own the copyright in the recording, usually for the life of copyright (ie in many countries this is 70 years from publication). In industry folklore this is the metaphorical equivalent of the bank giving you a mortgage to buy a house, but when you pay off the mortgage the bank keeps the deeds and ownership of your house.

     

    ADVANCES

    The funding aspect has two elements. It is made up of a non-returnable advance payment and second recoupable element which is the cost of making the recording (ie studio costs, the fee for session musicians, the fee for the producer and engineer, instrument and equipment hire etc). The artist must recoup these two cost elements from income generated by exploitation. The key point to remember is that the income used for recoupment is the artist’s royalty percentage not gross revenue from the exploitation of the recording. So if the artist is on a 15% royalty then that 15% (after adjustments – see below) is the source of recoupment monies.

     

    ROYALTIES

    The royalty percentage is calculated by a “base price” which will be defined in the contract. It might be the wholesale price, or less commonly the retail price; but both prices will be subject to deductions before the final “base price” is arrived at. Common deductions are taxes, costs of physical packaging including the costs of the artwork – and these deductions will be percentages varying from 15% to 30% in some cases. As a result an artist might end up with a base price that has been chiselled by as much as 35% or 40% from the original wholesale price, once the total deductions have been made.

     

    Each use of the recordings will carry a specified royalty. So, for example while a sales royalty may mean a 17% royalty (after deductions) the royalty will halve if a track is included on a compilation album. If a track is used in a film or TV programme, or in an advertisement, it is usual for 50% to be paid to the artist (subject always to recoupment progress).

     

    The studio producer (most famous exemplars of this key production role being Quincy Jones, Jeff Lynne, Dr Dre, the late, great Sir George Martin, the currently incarcerated Phil Spector and Mutt Lange) is paid a fee (which is a recording cost) and a royalty percentage. So, if an artist’s royalty is stated as 25% and the producer royalty is 3%, this leaves the artists with 22% from which to recoup the advances (personal and recording). Some producers will negotiate their royalty from the very first record shifted (known in the trade as “record one”). The effect of this is that the artist’s recoupment account goes further and further into the red via the payment to the producer from the moment the record goes on sale.

     

    OPTIONS

    When a label is signing an artist to a multi-album deal, the contract will be framed as a series of options. Each option is for a defined period of time in which the artist is obliged to record, deliver and promote an album. A multi-album contract might contain three or four option periods. An option period is something of a moveable feast. It might be defined as a specific period of time in the contract but will be extended where an artist delivers the album late, for example. Once the first option period has passed, the label gives the artist formal notice and exercises its option to call for a second (or the third or fourth) album if it wants to continue the relationship. The exercise of an option will trigger a second (or third or fourth) advance for the artists and to pay for recordings.

     

    There is an absolutely genius mechanism (genius, from the label’s perspective, that is) behind this option/advance principle. Because it can take up to three years for foreign revenues to make their slothful way back to the country where the deal was originally made, an artist’s recoupment account may be unrecouped as far as actual money received by the label is concerned. But so-called “pipeline income” may be of sufficient value that it causes recoupment and is about to be paid to the artist as a cash royalty. However, once the option is exercised and the second (or third or fourth) advance is paid, no cash royalties are then due because the artist’s recoupment account has gone back into the red – ie unrecouped. In effect the label lends the artist their own pipeline income as an advance and then requires the artists to recoup it from sales from the next album. See what we mean? Genius!

     

    After fulfilling all the delivery requirements (known as the “minimum commitment”) in each period the artist is free to leave for another label, or re-sign with the same label. Notwithstanding the end of the deal, and the end of the recording relationship, the copyright in all the recordings remains the property of the label in perpetuity. (This perpetual ownership may be subject to any statutory termination rights – in the USA, for example – or contractual termination that might be triggered by, say, a label’s bankruptcy.)

     

    The contract might require an artist to make a video – and carry 50% (usually) of the costs of its production. This cost is added to the recoupment account along with any other monies the artist might request such as so-called “tour support” to help fund a live tour, or “loans” for other purposes that the artist might request.

     

    APPROVALS

    An artist may have certain conditional rights over the use of their recordings in film or tv, or in advertising for products or services, or over the choice of their producer. The strength of this control (ie the amount of genuine control the artist has) can vary from mere consultation to actual prior approval and will depend on their status, or negotiating power.

     

    ONLINE

    With the arrival of online delivery, and the accompanying plummet in income from sales of physical copies, many labels introduced what were called “360 deals” which meant that the label (ie the record company with a recording contract – the clue as to their role being in the name!) acquired a contractual entitlement to revenue from all an artists’ activities – live shows, merchandise and sponsorship and maybe even song publishing. The labels also exchanged shares in some online music delivery services, which will mean quite a windfall for the labels (only) in the case of a services’ IPO or other flotation such as that recently launched by Spotify. See also What Digital Did.

     

    NEIGHBOURING RIGHTS

    International law recognised performers’ (and labels’) ongoing interest in the use of the recordings aside from the sales of physical copies. While songwriters had long received royalties when their songs are broadcast or publicly performed, traditionally there was no equivalent for performers (or the copyright sound recording). So, in the period before WWII the International Labour Organisation lobbied hard for an ongoing right for performers that mirrored the royalty entitlement position of songwriters and composers. On reconvening after the interruption of war (during which time there had been the invention of magnetic tape) the performers were joined around the table by the broadcasters and record labels (via IFPI). The resulting international treaty (Rome Convention) was signed in 1961 and provided for a payment called “equitable remuneration” that was to be paid anytime that a commercial sound recording was broadcast or publicly performed (now called “communicated to the public”). The Convention allowed the payment to be paid to the label or the performer or both. The right upon which this revenue entitlement sits is known as a “neighbouring right”. The money is customarily allocated 50/50 – though in a few countries the performers get a larger share.

     

    Not all signatory countries implemented the Convention domestically in terms that gave performers a statutory right. Until a 1996 EU Directive the UK only gave performers an ex gratia payment. In contrast Continental European countries largely gave all performers a statutory right to the money. As the USA has not signed the Rome Convention US performers do not have a right to be paid this kind of revenue at all (except where their performances are delivered by non-interactive online radio – paid via Sound Exchange).

     

    One point to note: in most Rome Convention countries, the labels and the performers operate two joined CMOs together to negotiate and collect fees from the users of the music. However, when the UK implemented the EU law that obliged the UK government to give performers the right by statute, the performers were only given the right to claim this money from the labels! At a stroke of the legislators’ pens, the UK performer was reduced to supplicant (again) and had to apply via a CMO which is wholly owned by labels. So, while there are performer board members on the CMO (called PPL, Phonographic performance Ltd) the 50/50 allocation is calculated and paid under the direction of the powerful corporate right owners.

     

    And, as mentioned in Shocking Facts, the 50/50 allocation of neighbouring right revenues (equitable remuneration) is not applied to streaming revenues. The right of “making available” is legally a sub-set of the communication to the public right (which attracts equitable remuneration). But the labels in their wisdom did not mandate the UK CMO to collect streaming fees. The labels license their catalogues to the streaming services but treat the licence income as a sale when it comes to paying the talent. A recording artist’s contract may identify a sales royalty of 15% or much, much less for heritage artists. This sales percentage will be applied to, for example, Spotify revenues and in some instances, after the label has deducted costs such as packaging – in line with the definition of the royalty base price! Put bluntly, rights out from a label are for a licence, money out from a label is for a sale. So, in a blinding double standard, while 50% of the money is shared with UK performers from insignificant streaming services because they are licensed by the CMO, all the big streaming companies pay the labels direct and the labels give a much smaller slice to the talent. The deals are all subject to tight non-disclosure agreements, so an artist manager has very little ability to determine the terms on which their client’s rights have been granted and for how much.

     

    Another example of how this system works in practice is the unequal treatment of performers and labels from the USA. As the USA is not a signatory to the Rome Convention there is no legal entitlement to money. So, in fairness, neither US labels nor performers should have access to foreign neighbouring rights income as the USA offers no such reciprocity. But the US labels have offices and subsidiaries in the UK and in other countries that signed the Rome Convention. The effect in the UK, for example, is that the US labels collect their money for US recordings from the UK but not a penny, cent or peso is shared with US artists – the cash goes straight to the US labels’ bottom line, the shareholders and executive bonuses. [1]

     

    AUDITING

    An artist is accounted to and paid (if they are recouped) half yearly, sometimes quarterly, but between 60 and 90 days after the end of the accounting period. So if there is by contract half yearly accounting (June and December) plus 90 days, accounting will be issued on or around 31st March and 30th September each year. It is highly recommended that an artist audits their label. This is not just to determine that payments are correct, but it also sends a powerful signal to the company that the artist is awake and taking care of their business affairs. In a combined submission about music licensing made to the US Copyright Office in 2014, from the UK’s Music Managers Forum and the Featured Artists Coalition [2], there is an extensive and enlightening quote from an experienced music industry auditor:

    “I experienced an occasion where a label has asserted that they are not aware of the receipt of lump sum monies from licensees and has insisted that I, as auditor, identify a particular example of such a lump sum before they can comment. However, I am not able to obtain this information as the licensees have signed NDAs. In the case of other types of lump sums received by labels, such as settlements with copyrights infringers or audio and video public performance income, I am sometimes told that it is not possible to share this income with artists as there is no way of breaking the income down by recording. But the systems are NOT incapable of allocating the money. The [CMOs] and other rights organisations can allocate blanket licence fee money to individual songwriters. Data is always available which can be used to make a reasonable allocation.

    On the occasions that this income is shared with the artists, I have no ability to verify the allocation as there is no audit trail leading back to the income received from the source. I am told that this financial detail is not available to me as the source amount relates to all artists on the label and I am not entitled to that information as I am auditing at the request of an individual or single band. The company may in some cases describe a mechanism for allocation but I am not permitted to see the various stages of the calculation going back to the source of the funds. Also, where a payment is received in, say, the USA, for a global or a UK/USA deal, often the UK office is simply sent an amount, being the internal UK allocation. They themselves are not being given any detail of the original value of the licence.”

     

    THE INDUSTRY

    The most recent IFPI report on the music industry can be found here in the Library as well as an essay about music artists who control their recordings and publishing and use aggregators to get their product distributed – both digitally and in some cases, physically. Also the Library contains an article about song writing contracts, the latest figures from CMO regulatory body CISAC which show the health of music authors’ collections worldwide and a host of other industry-related articles.

     

    [1] For more useful information about US practices in music rights licensing try Steve Gordon’s book The Future of the Music Business (4th Ed., published by Hal Leonard). For practices in play elsewhere there are many books on the market.

    [2] https://www.copyright.gov/

  • Fairness Rocks news

    SOURCE: Fairness Rocks

    Date: April 6, 2018

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  • Fair Digital Deals Declaration


    “The big print giveth and the small print taketh away. ”

    – Tom Waits

     

    LABELS’ FAIR DIGITAL DEALS DECLARATION

    We make the following declaration in connection with the distribution of recordings in digital services.

    We will:

    1. Ensure that artists’ share of download and streaming revenues is clearly explained in recording agreements and royalty statements in reasonable summary form.
    2. Account to artists a good-faith pro-rata share of any revenues and other compensation from digital services that stem from the monetization of recordings but are not attributed to specific recordings or performances.
    3. Encourage better standards of information from digital services on the usage and monetisation of music.
    4. Support artists who choose to oppose, including publicly, unauthorized uses of their music.
    5. Support the collective position of the global independent record company sector as outlined in the Global Independent Standard below.

    We wholly disapprove of certain practices which leave artists under-recompensed and under-informed in the digital marketplace and will work together with the artist community to counter these practices.

    Signed on behalf of [Label]

     

    [Print name]

    [Date]

  • Fairness Rocks news

    SOURCE: Worldwide Independent Network

    Date: March 14, 2018

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