Tuesday, 25 September 2007

Google YouTube: music in videos - legal now, or not?

Is it now safe to include music in videos you upload to Google's YouTube? I don't mean uploading a commercial music video to YouTube. I mean using music in your own videos - e.g. playing a track as background music for your video or short film, or recording a video of someone who's singing or playing music themselves, or just lip-synching to the playback of a commercial music recording.

The answer isn't in fact straightforward, if like me you want to try your best to stay strictly legal (that didn't stop the BBC from getting YouTube to delete the BBC iPlayer videos I'd put up for my iPlayer preview, their first YouTube DMCA take-down ever, but that's a different story and it seems to have been confidentiality concerns rather than copyright which drove that). Intellectual property rights such as copyright are complicated, there are many strands to copyright, and it's different in different countries, so it's often difficult to work out how the global aspects of the internet affect things. I don't profess to be a copyright expert and as they say this post isn't legal or even practical advice - just a summary of my personal investigations and views based on the position in the UK (for more, please see my detailed outline of what UK music copyright is, how it works, etc).

What music copyright permissions are needed? The ABCs

To copy, publicly perform or broadcast music, you may need several types of permissions (and remember "copying" music includes adding it to your video or uploading it, while "broadcasting" includes download or streaming over the Net, e.g. podcast or video as well as TV and radio transmissions). In the UK, you could be done for copyright infringement even if you didn't know what you were doing was a breach of copyright, and even if you didn't mean to violate anyone's copyright.

You might need authorisation or licence from more than one person, because several people could be involved:
A. the composer or songwriter who wrote the music - they own the copyright in the music and lyrics
B. if you play or use someone else's recording e.g. a CD or MP3 or iTunes track, the artists who sang or played on the recording - they have performers' rights in their performances
C. if you play or use someone else's recording, the producer of the recording - they own the copyright in that particular sound recording (which is separate from the songwriter's copyright in the song), usually this is the record company.

If you make your own recording or video of yourself singing or playing a song (or of someone else doing that, e.g. a friend, and you have their permission to record and broadcast their rendition), then you only need A - permission from the songwriter. If the song is out of copyright (also known as "in the public domain"), you don't even need that.

If you use an existing recording in the soundtrack of your video, even if someone is lip-synching to it but you can hear the commercial recording being played, that's a copyright infringement ("making available" the recording) and you need A, B and C. In other words, C ain't enough to make it legal if you don't get A and B too.

What permissions has YouTube got?

Looking at the raft of permissions which are theoretically needed to use or incorporate music in a video, let's now go back to the position of YouTube and videos on YouTube.

Record companies - C

We know that YouTube have done deals with lots of record companies to let YouTube users include recordings in their YouTube videos - with Warner Music Group in September 2006, with Sony BMG Music Entertainment and Universal Music Group (UMG) in October 2006, and EMI Music in May 2007.

That's C. Permission from the record companies, sorted (but only kind of - I'll come back to that later).

But what about A and B?

Composers - A

At the end of August 2007, YouTube did a deal with the UK's MCPS-PRS Alliance (see Alliance press release and note for members). The Alliance represents composers and music publishers in the UK: 50,000 members, 10 million songs. YouTube will pay the Alliance when their members' "creative talents are being enjoyed on YouTube's service across the UK". (And the Alliance should then pass on payments to their members, but how isn't clear. Various news reports say YouTube will pay the Alliance a flat fee but I won't go further into the financial terms of that deal here, as they're not the main focus of this post: the Alliance press office told A Consuming Experience that "The terms of the deal and all matters relating to the financial aspects of the deal are confidential, anything that has been written about that relates to finances is basically journalists speculating." Similarly, I won't even try to guess how the payment will be distributed amongst members!)

Does the YouTube deal with the Alliance mean A, permission from songwriters, sorted?

Well, not necessarily. Societies like the Alliance - called copyright collectives, copyright collecting societies or collecting agencies because they handle requests for copyright permissions or licences for their members and the collection of royalty payments for them - are mostly only national in scope, organised by country.

The Alliance's territory is the UK; they only collect payment for public performances, airplay, downloads etc of their members' music that take place in the UK. That's why the Alliance press release on the YouTube deal talked about "the YouTube community in the UK", and "YouTube's service across the UK" (my emphasis). Their members of course will mostly be UK residents, too. So it would make sense that the Alliance press office told ACE, "All Alliance members' works uploaded on YouTube in the UK is licensed", and "Our agreement covers anything that is streamed into the UK i.e. royalties from clips watched by YouTube users in the UK."

Another gloss to add is that the collecting societies in different countries often have reciprocal agreements with each other. So e.g. U.S. songwriters may belong to a US collecting society, but if their music is played on UK radio the Alliance might collect royalty payments for them and pass it on the US society to pay to their members.

In the case of the YouTube Alliance deal, Andrew Shaw the Alliance's Managing Director of Broadcast and Online told ACE that the deal also covers YouTube video downloads in the UK that include music by composers outside the UK, where their societies have a reciprocal arrangement with the Alliance. In other words, if non-UK songwriters' music is on a YouTube video and the video clip is played or watched by a UK user, YouTube will pay the Alliance for it, who will pass the payment on if they have an arrangement with the writer's collecting society. So it seems the deal doesn't just include Alliance members' music, but also other songwriters' music too - though for convenience I'll just call the lot "Alliance music". What I'm not sure is, does the deal cover all collecting societies that have reciprocal arrangements with the Alliance, period? Or only the ones that have specific arrangements with the Alliance especially in relation to the YouTube deal? I suspect the former, but I don't know.

No doubt you're now thinking, "Aha! What if a YouTube user outside the UK views a video with Alliance music? Is that covered? And what about uploads of videos by YouTube users outside the UK? Isn't an upload technically "copying", which needs permission too?" Well that's astute of you, but of course all ACE readers are astute.

Yep, you're absolutely right, you clever thing you - that's the international aspects of the Net insisting on creeping in to complicate matters. The Alliance press release did mention "user uploads", and so did Andrew Shaw when I spoke with him. But user uploads from which country? The Alliance press office told ACE, "The deal relates to content uploaded in the UK." But what about content uploaded in other countries? It could just be my (mis?) perception, but Mr Shaw was extremely non-committal on this point, which leads me to wonder whether that means that the Alliance YouTube deal doesn't, or just can't, cover downloads or uploads by users who live outside the UK, because that's outside the Alliance's remit. The references in their press release to "in the UK" seem to suggest that too. The Alliance press office didn't comment further when I suggested "so it sounds like it will be legal for YouTube users anywhere to upload videos containing Alliance member-composed music as long as the clips are watched by YouTube users in the UK" - but I really wouldn't take silence as a "Yes". So I'm still uncertain about whether the Alliance licence to YouTube covers uploads of video clips with Alliance music by non-UK YouTube users. I suspect not, because of the territorial issue.

There are other copyright collecting societies which handle licensing of rights and royalty collections outside the UK, sometimes more than one per country depending on the area (see the Wikipedia list of collection societies, they even have a category all to themselves). To complicate matters, a society in one country could mainly represent songwriters or performers from another country, in relation to their rights in the first country - e.g. the US SESAC was originally formed to support the rights of under-represented European artists in the USA. For copyright-related matters in their countries, e.g. copying or uploading that takes place in their countries, wouldn't local collecting societies need to be involved too?

It certainly seems so - e.g. YouTube have a licence from the BMI in the USA (but not other US collecting agencies like ASCAP and SESAC, at least not yet), according to this 2006 article by Brian Garrity.

That article is well worth reading as it explains clearly the different aspects in the USA and the different rights and organisations which could be involved there. For instance, it seems from the article that music copyright in the USA is quite different from music copyright in the UK, and similarly for the alphabet soup that is the world of the collecting societies. For instance, copyright collecting societies in the US seem to be referred to as "performing rights organizations" or performance rights organisations, whereas in the UK concept of performance rights is to do with the performance of, well, a performer, e.g. a singer's singing, and is to do with their rights in their rendition, rather than copyright in a song as such. I confess that while I've just about got to grips with the difference between the Alliance, the PPL and the VPL I've no clear idea yet about the differences between the BMI, ASCAP and SESAC or indeed the NMPA, particularly the boundaries between them and what they do.

Mr Garrity also makes the point that YouTube may have got licences from record companies and the BMI, but strictly it still isn't completely legal to include certain music on YouTube until ASCAP and SESAC (etc?) are on board too. I've seen reports (e.g. Royalty Week, Associated Press and FT) that YouTube has reached interim settlements or interim licensing arrangements with US collecting societies, but it's not clear to me just which ones, and whether they include ASCAP and SESAC.

Now I mentioned the NMPA earlier. In fact, YouTube are currently being sued in the US for breach of music copyright by the NMPA, e.g. see this New York Post article. The NMPA or National Music Publishers' Association represents music publishers in the USA - but the BMI etc also represent publishers, which is why I say I still haven't got to the bottom of the US position yet. What is certainly clear from the lawsuit is that not all rights holders in the USA have agreed to license their music to YouTube.

So what it all boils down to is this: UK video uploads and downloads which include Alliance music may now be legal (with the further twists I'll come to below), but the YouTube Alliance deal doesn't mean that it's legal to upload or play those videos outside the UK.

Here's another gotcha. Mr Shaw also told me that after the YouTube deal it will be legal for YouTube UK users to include Alliance music on the Alliance's "usual" licence terms, such as "non-derogatory" use only. Only YouTube and the Alliance know the exact details of their deal. That "non-derogatory" requirement wasn't announced in the press release, so how would we mere users have known that that non-derogatory use is a condition of the licence? Maybe I've not researched it fully enough, but the only Alliance licence I could find was their online exploitation licence, so I'll take it as a typical example of their "usual" terms. Now that licence says in item 4.3 that the licence doesn't extend to:
(a) the reproduction or communication to the public of any Commercial Work or part thereof in the form of a parody or burlesque of any Commercial Work or of any composer or writer of any Commercial Work or any band or other group of artists which includes any composer or writer of any Commercial Work; or
(b) the use of any Commercial Work in any context which the Licensee ought reasonably to consider as being likely to be insulting or detrimental to the composer featured on the commercially released sound recording of the music or the relevant Member or associated society member.

I'm guessing that that must be what Mr Shaw meant by "derogatory". In other words, that licence says that the licensee can use Alliance music as long as they don't do a parody or burlesque of the music or the songwriter etc, or use it in a way that's insulting etc to the composer. So it seems there's a hidden restriction to watch for: don't shoot the pianist, and certainly never ever make fun of the songwriter!

As you can tell, the only thing I'm halfway confident about at the moment is that YouTube users who live in the UK can safely include Alliance music in their YouTube video uploads if they do it in a "non-derogatory" way (with the further twist I add below, yes there's more), and that the Alliance will get paid by YouTube when YouTube videos containing Alliance music are played by UK YouTube users.

Performers - B

Now I come to the twist. The eagle-eyed will have spotted that I haven't even got to B yet - musicians' rights in their performances, i.e. their singing or playing. As I mentioned, in the UK this is not the same as a songwriter's copyright in the song they perform, or the record company's copyright in the sound recording it makes of their performance.

If you or your friend sing or play Alliance music "live" on a YouTube video in the UK, that's fine. But what if you use a commercial recording of Alliance music with other people (like a pop star) singing or playing on the recording? YouTube may have a licence from the Alliance as far as the songwriter's copyright in the song is concerned, and from the major record labels in relation to their copyright in the sound recording - but what about the performers' rights in their performances?

In the UK, the PPL is the collecting society which handles performers' rights in sound recordings, i.e. when recorded tracks are broadcast or publicly performed in the UK, whether played in a club or restaurant or on the radio. (The VPL deal with rights in commercial music video recordings, but that's another matter.)

You get my point now, don't you? Just as the picture in the US isn't complete without ASCAP and SESAC, if a UK YouTube user uploads a music video which includes Alliance music from a recording by a British artist, it's not legal unless the PPL have also given a licence to the YouTube. And they haven't, yet. In fact the PPL are currently in negotiations with YouTube, but until that's sorted it strictly it isn't legal to include audio recordings with performances by PPL members in your YouTube video - even if you live in the UK, even if the music is composed by an Alliance member - UPDATE: unless the performers' rights have been transferred to the record companies which own the copyright in the recordings and have done deals with YouTube.

That's why I'm with Brian Garrity rather than Mashable, who said "YouTube mavens no longer have to fear being sued for music being played in the background of their videos, or worry about their content being removed. At least for labels and artists by the MCPS-PRS Alliance". Or indeed the Financial Times, who said the YouTube-Alliance deal would "legitimise the use of recorded music" on YouTube. The Times reported that "videos using their [Alliance members'] music as a soundtrack will no longer be infringing copyright", and even the New York Times said the YouTube-Alliance deal allowed "tracks from performers like Cliff Richard and Amy Winehouse to be used in videos" (echoing the Associated Press). Reuters similarly said the deal "allows users of the Google site to incorporate recorded music legally into videos". All of them: sorry, but, being pedantic about it, wrong wrong wrong. Brian Garrity (and me!): right. No PPL, no legitimacy in the UK, for the use of sound recordings anyway.

So B, performance rights - NOT sorted.

UPDATE: I am told that the standard practice, during the recording process, is for performers to transfer their performers' rights over to whoever has the copyright in the recording, normally the record companies, for the copyright owner to then exploit the performance / sound recording further, i.e. generate revenue from it.

The performers do retain certain rights in the sound recording with regards to "equitable remuneration" whereby they would receive compensation for the "broadcast and communication to the public" of those performances they were involved in.

However the "making available" of sound recordings, in services such as "on-demand" streaming of programmes, is not included in the "broadcast and communication to the public" definition - and therefore performers don't get equitable remuneration for it, and would therefore not be directly involved in the licensing process for "on-demand" services.

So, in the case of YouTube videos incorporating background music, the rights that would be required would be:
  1. the publishing rights in the musical work, the song (which is licensed by MCPS-PRS-Alliance), and
  2. the rights in the sound recording itself - which would be licensed by the copyright-owning record company directly (the direct deals done between the major record labels and YouTube) and/or with PPL, who would represent those members that wished to be included in such a licensing deal.
PPL represents its record company members for the licensing of the rights those members hold in sound recordings, and therefore any deals that are done by PPL with "on-demand" services would be on behalf of record company members (rather than performers), on the basis of the usual practice of performers transferring their performers' rights to the record companies.

Ah c'mon, so is it legal to upload music with your YouTube video, or isn't it?

Where are we now, then, and are we there yet? Well, no.

In my personal view, at the moment you are 100% totally safe to add music to your YouTube video only if:
  • the music is out of copyright (the Public Domain Works' list of public domain composers is helpful, though not exactly typical YouTube fan fodder), or
  • you or your friend sing or play the music yourself (rather than using a pre-recorded track) in a "non-derogatory" fashion, and:
    • you're in the UK, and the music is by an Alliance member (or, possibly a member of an associated collecting society), or
    • (maybe - this is pure guesswork so don't go by it, could someone in the know possibly confirm?) you're in the US, and the music is by a BMI member?
Let's get back to music recordings, e.g. CDs, where the copyright to the sound recording is owned by the record labels who have made deals with YouTube like Warner, Sony, Universal or EMI - all the biggies, really. They've licensed their recordings to YouTube haven't they, so shouldn't it be fine now to include their artists' tracks on your video at least?

Strictly, no - for two reasons.

One, remember the ABCs - it's got to be all the ABCs, not just one. Authorization from the record companies, C, just isn't enough. As Mr Garrity pointed out in the US context, the composer / songwriter / music publisher has also got to give their OK before it's fully legal, if it's their song on the recording (that's A). Remember the NMPA lawsuit. And it's the same in the UK. Plus, there may be performance rights of the artist to consider too (that's B), though I'd be the first to say I'm not sure about the position on performers rights in the USA, UPDATE: and if the record company that's done a deal with YouTube owns the performers' rights for their recordings, as they normally will, then that should be covered by the deal too.

Two, if you closely look at the YouTube news releases about their deals with the record companies (linked to above), you'll notice a couple of interesting things.

First, the Sony BMG press release for instance only says the deal will "allow users to include certain SONY BMG sound recordings in their own uploads"; even the Warner press release says they can "request the removal of copyrighted content from YouTube when an artist elects to remove it", despite the YouTube blog saying " You'll be able to enjoy and share these videos without concern that they could be removed. What's even better is that Warner is the first record label to embrace and support your creativity by authorizing use of their music content for free".

Second, in all those press releases they refer to the ability for the record company to ask YouTube to remove content which is not available or authorized, with some emphasis on YouTube rolling out a special content identification, reporting and filtering system. To me, that suggests that in fact not all the recordings from those labels may be freely uploaded by YouTube users, after all. Some may be, some won't be.

Where does that leave us poor users? It seems to me that if you are a YouTube user who wants to stay legal, it's an almost impossible task (even if you're in the UK), unless the music you include in your video is sung or performed live for the video and the music is definitely out of copyright. Because, really, how do they expect us mere users, even in the UK, to figure out if a particular song is Alliance music or not? Ask the Alliance? Is there a publicly searchable database of Alliance music? They do have a database of works registered with them (and even a detailed guide to searching it), but it doesn't seem to be publicly available.

Now if I were the Alliance and wanted to make money for my members, personally I'd make that list of works fully public - to encourage YouTube users to include Alliance music in YouTube videos, so that every time the video is played in the UK, Google / YouTube have to pay the Alliance! But that's a different matter.

The same holds true for BMI members' music. How do you figure out which music is by a BMI member?

And how would they expect users to know whether a particular commercial sound recording, even if it's on a Warner, Sony BMG etc label, is an authorised one - given that only some of those labels' content seems to be included in their deals with YouTube? I don't see the record labels putting out an online database of authorized content; do you? (Though again, if I were them I would, in order to get more money out of Google / YouTube or advertisers.)

The answer has got to be, it's virtually impossible. They can't really expect users to work it out. YouTube and the record labels corporations and societies are big boys and they're not stupid, they must know that YouTube users won't in practice be able to tell which songs or recordings are licensed and which ones are not, even users who want to try to stay legal.

So the inevitable conclusion seems to be this: maybe they, the big corporations and collecting societies, don't really expect users to try to stay legal, maybe they don't really care about prosecuting or suing us us little individual YouTube users after all. The real goal may be just to get a slice of the advertising revenue action.

We all know that grannies and little girls got sued over music MP3 file sharing, but hopefully we're in a different era now, hopefully the record labels have learned their lesson from their experiences with Napster, Kazaa etc, and have started to appreciate that they can make money by adapting to new business models. The sheer numbers of people who, without knowing or caring about the niceties of copyright licences, uploaded illegal music and videos to YouTube in droves, will surely have been a factor - this isn't quite mass civil disobedience wreaking a sea change, as most of those users probably didn't even think about copyright never mind deliberately deciding they wouldn't obey the copyright laws, but it's not that far off. Numbers must surely help in any "can't beat 'em, join 'em" kind of assessment.

As Eliot van Buskirk suggested in Wired and Hiawatha Bray in the Boston Globe nearly a year ago when Google acquired YouTube, the record labels and other media companies seem finally to have realised that they can get free publicity from fans advertising their songs on YouTube through user-generated content, namely fan-created music videos and other imaginative derivative works, and that they can even make money from that content. Indeed, CBS spokesman Dana McClintock was quoted in the Boston Globe as saying that his firm may leave the illegal copy of an upload video alone because CBS will get a slice of any ad revenue generated by the video.

YouTube is, after all, very big business. We all sense that, but the stats show it too. In August 2007 YouTube was the 8th highest ranking brand in the US, according to Nielsen/Netratings, and 36th in comScore's Ad Focus rankings, reaching 25% of the US population. comScore reported that in July 2007 Google sites were the top US video property with nearly 2.5 billion videos viewed (27.0 percent share of videos), 2.4 billion of which occurred at YouTube alone. More than one out of three U.S. Internet users viewed video on YouTube.com that month. Even in the UK, in the week ending 19 May 2007 YouTube ranked 3rd on the Net communities and chat front, Hitwise reported, and YouTube was the 3rd most popular search engine term in the 4 weeks up to 9 June 2007. That's a lot of visitors and users, that's a lot of money making opportunities - whether it's via advertising revenues or some other creative Web 2.0 business model based on user-generated content (UGC) or indeed something else that's yet to surface (as to which see generally Jyri Engeström's inspirational and constructive 5 principles for Web 2.0 success).

Anthony Lilley said in the Guardian recently that he felt the YouTube-Alliance announcement was connected in some way to YouTube's trialling of InVideo, which overlays ads on videos, and thought the announcement might mark the turning point for online video business models. YouTube have since May 2007 also started offering revenue sharing and promotional opportunities to their most prolific user participants (i.e. video makers) as "content partners", in order to encourage the creation of popular visitor / audience-generating and advertiser-attracting user-generated videos - a very smart move, I think, and I believe it's a sign of things to come.

So, whatever the strict legalities, it may be that given the vast numbers of YouTube videos with illegal content, the logistical difficulties and resources that might be needed to police it all despite YouTube's identification or fingerprinting technology, and the huge potential income that could be derived from YouTube user-created videos through advertising etc, the rights holders may in fact decide not to bother to sue individual users (Google's vast pockets may of course be another factor). But I think that that still depends on all rights holders involved striking agreements with YouTube, particularly as to financial terms on monetary compensation and revenue sharing, which the record companies and collecting societies all think is fair. And the lawsuits against YouTube haven't been resolved yet. So if you want to add music to your YouTube video where the legalities are still unclear, remember you still do so at your own risk...!

Monday, 24 September 2007

UK music copyright: an introduction

When you copy, use, or perform music, you have to worry about copyright, which is actually several different kinds of rights, which might be owned by different people, and which might be different in different countries too.

Why worry? Because it's complicated, and yet copyright infringement is something the copyright owner could sue you for (and in the UK, that's even if you didn't appreciate what you did was a breach of copyright), and in some situations, in some countries, you could be fined or even sent to jail.

Whether they can catch you or find you out, and whether the copyright holder or authorities decide to let it go or to do you, well that may be a different matter - but there's still the theoretical possibility that technically you could be sued, fined or imprisoned, so if you're cautious like me it's a good idea to be aware of when you can safely perform, copy or use music, and when you can't. (Not that that attitude helped me when the BBC got the videos which went with my BBC iPlayer post deleted from YouTube, which was the BBC's first ever YouTube take-down under the US DMCA - but that's a different story and their issue wasn't in fact copyright, but perceived confidentiality concerns.)

Trying to get a handle on copyright isn't made any easier by the fact that it's often difficult to figure out which country's approach should win out, especially with stuff on the Net where several countries can be involved. E.g. if you upload a copy of a recording to a server there could be several countries to consider: where the copyright owner of the music lives, where the copyright owner of the recording lives, where you live, where the server is located, what's the country of the company that owns that server, where a person who downloads the copy lives, etc etc. What a nightmare. And that's just one planet, one dimension (oh all right, three).

So, I'm not even going to try to think about anything outside the UK, in this post. Also, I'm only touching on music copyright, not video or writing. I don't claim to be a copyright expert and this certainly isn't legal or indeed any other advice, I'm just reporting on my own research and my personal views, and this is a basic and simplistic overview at that. I hope you'll feel free to interject (comments links below) if you think I'm wrong or have a gloss to add.

So, on that basis, here's a very basic outline of music copyright in the UK as I understand it - mainly from the viewpoint of those of us trying to make sure we don't get into trouble on copyright matters, but it may be helpful as an introductory guide for musicians and songwriters too.

What's copyright?

Copyright is a set of exclusive rights, a monopoly if you like, given by law for a period of time to the creator of certain types of works which are embodied in certain ways. The purpose of copyright is (supposedly) to incentivise creativity by allowing creators to make money from their work, while also allowing society to freely enjoy the fruits of that creativity after the copyright period has ended.

After expiry of the copyright period the work is out of copyright, also known as "in the public domain".

To demonstrate how music copyright works, let's take a simple piece of music, say a song:
  • A composer has written the song, or composition.
  • There could be sheet music for the song, which could be photocopied or scanned.
  • If someone sings or plays the song or even recites the lyrics, in a pub or club, they're performing it.
  • And their performance could be recorded, via audio or video, e.g. on CD or DVD.
  • The recording could be broadcast on radio, streamed on the Net, or uploaded to a server etc.
  • The song could be used on the soundtrack of a film, ad or video without the performer being shown.
  • The song could be re-arranged, sampled, re-mixed.
And I'm sure I've missed out some things you could do with a song. It's really not that simple after all.

As for the rights involved, they're even less simple. Here goes, and remember this is a simplification!

Composition or creation

The composer or songwriter of the song automatically has the copyright in the song (often signified by the © symbol) as soon as it's embodied in some permanent form, e.g. making a recording or writing sheet music - that's the rights in relation to the music and lyrics both, including the sole right to:
  • copy or reproduce it
  • perform it publicly
  • record or adapt it - including sampling or remixing ("synchronisation" is used to refer to combining the music with a visual image, e.g. in a video, film or webcast), and
  • broadcast it (which includes a podcast or vodcast / videocast / webcast / internet radio, whether by download or streaming).
Copyright also includes the exclusive right to authorise or stop others from copying, recording it etc. The composer will also have those rights in relation to any adaptation of the song, i.e. to perform the adaptation publicly, record it, authorize others to do that, etc.

If more than one person collaborated in writing a song, it can be messy unless they've agreed clearly (ideally in writing which people can point to afterwards) who owns what or how to split the royalties. E.g. the dispute over the famous organ hook in Procol Harum's A Whiter Shade of Pale, which organist Matthew Fisher won - for now anyway.

Copyright is an automatic right although it's advisable from the composer's viewpoint to mark the work with the © symbol, the name of the copyright owner and the year of publication, according to the UK Intellectual Property Office. (Also, if you're a composer, beware of copyright registration agencies and the like - in the UK you don't need to register anything to get copyright, you get the rights when you first write out the song or lay down the track. The issue really is one of proof - you want to be able to prove later down the line that you wrote the song, not someone else. If you mail it to yourself in an envelope registered mail or special delivery, and keep the envelope unopened, you can then open it in court in future if you need to sue a plagiarist. You don't necessarily need to pay a copyright registrar, although registration may be able to help in the evidence stakes.)

So back to the position of a user, if you sing or play a song in public (karaoke, anyone?), strictly you need permission from the song's copyright owner. If you record it, again ditto, and that includes including it in a video, a game, ringtone, etc. They may of course charge for their permission, whether it's a one off fee or ongoing royalties e.g. a cut of profits from every recording you sell, etc - that is after all how they can get rewarded for their creative efforts.

You can't copy their sheet music or even lyrics without permission, either.

You could perform their song privately, e.g. sing it in the shower, and you should be OK - unless of course you're webcasting or podcasting it! (No I do NOT use a webcam that way. Unless there's enough money in it. Hmmm.)

A trap to note: copyright stops you from copying, publicly performing etc a "substantial" part of the song unless the songwriter OKs it. "Substantial" isn't measured by percentage e.g. 90% of the song, it's a qualitative rather than quantitive test, so if e.g. you publicly performed just a few notes but they were the distinctive "hook" that everyone recognises that song by, strictly you could be done for it.

Another trap: you can be sued even if you genuinely didn't realise that what you did was a copyright breach. Guity until, well, guilty. Nice, innit?

A composer also has "moral rights" in the music, but I'm not even going to start on that.


Someone who sings or plays the song has separate performer's rights (performance rights) in relation to their own performance, including session musicians (and they should have got the composer's permission to perform it in public or to record it). It may be that session musicians or other musicians involved will have signed away their performer's rights to the record company or whoever, and it usually is the case - but not always.

In the UK performers' "equitable remuneration" rights to payment belong only to record companies, although performers are entitled to seek their share of that from the record companies (in relation to radio or TV broadcasts of the recording), whereas in other parts of Europe both record companies and performers have direct rights. UPDATE: However in the UK performers don't have equitable remuneration rights in relation to "on-demand" streaming of the recording e.g. over the Internet (audio or video), as opposed to when it's broadcast on the radio or TV or played in a club, because of a technicality in the law.

The songwriter and performer could be the same person, and often is, but the rights are still separate.

I don't know who'd have the rights to the solo or duetting Guitarbot's performance, probably the programmer as we don't recognise "human" rights for robots yet!

Sound recording

The producer who's produced a recording of the song (e.g. a record company) has separate rights to their own recording (that's the P symbol you see on CDs), and again they should have got permission from the songwriter. But even the songwriter would need the producer's permission to copy that particular sound recording.

The record producer strictly has the rights in the recording, but if they work for a record company the rights would be the company's, or if they're independent they've probably agreed for a fee that those rights should belong to the company.

Dealing with rights and making money from them

A copyright owner can sign their rights away, temporarily (e.g. for X years) or permanently, e.g. in return for a one-off price, or royalties or a cut of the profits on every sale of recordings of their material.

They can sell or license the full copyright, or only certain rights (e.g. just the right to include the song in videos, but not the right to perform it publicly), and even "rent" rights out e.g. let someone else have certain rights for X months.

Music publishers

So, songwriters often make deals with music publishers where they sign away many of their rights in return for a royalty, maybe an advance, etc, because the publisher usually has better contacts and resources to exploit the song commercially. (Naturally, the publisher also gets a big cut.)

Record companies

Similarly musicians and singers may (and usually do) sign away their performance rights in recordings to record companies because the record companies have historically had the resources and contacts to pay for studio time, get session musicians and producers and engineers, and market and distribute the recordings, etc. In return the performer might get an upfront advance, royalties, and the like.

Is anything legal? Is copyright forever?

You can do a few things legally without the copyright owner's consent, but the exceptions vary with the country.

Fair dealing is one example in the UK, where copying etc for review or criticism or reporting of current events is OK, or a a single copy of a "reasonable proportion" of the work for non-commercial private study. But I gather that in Australia you can't even make copies for private research, strictly speaking. And in the USA the concept of fair use is similar, but broader, so some things may count as fair use there which wouldn't be allowed as "fair dealing" in the UK.

There are other limited exceptions or permissions, e.g. making an accessible version of a legal copy if you're visually-impaired, or for educational establishments (with limits).

Another trap: many people seem to think that personal non-commercial use is OK, e.g. making a copy for a friend - but it may not be, depending on the country. Even videoing a TV programme to watch later (time-shifting) is only legal in the UK because the law specifically said so - if it hadn't, it would be illegal.

But copyright isn't forever - it lasts only for a certain time, after which the work goes out of copyright, and into the public domain. The copyright owner will no longer be able to stop people from publicly performing the song, making copies of the recording, etc. And the public will be able to benefit freely from the creator's work, thereafter.

The duration of copyright varies with the type of right and the country etc. In the UK, a songwriter's copyright ends 70 years after the composer's death. But the copyright in a sound recording ends 50 years after the calendar year of the first release, hence the to-do about Elvis recordings coming out of copyright a couple years ago.

Remember the two are separate. So a sound recording might be in the public domain, but with a long-lived composer you may still need the permission of the songwriter or whoever's inherited their copyright, before you can perform the song publicly etc.

How do you know if a writer's been dead long enough for you to use their stuff as you wish? The Public Domain Works project is trying to build up an open database of works in the public domain, which people can contribute to - it hasn't got very far yet as it's still earlly days (for starters there's a list of composers whose works are public domain as they died more than 70 years ago), but it's an excellent idea and they still need volunteers to help in a number of ways.

But remember you also may need to check the law of the country concerned, ideally you should consult a copyright lawyer, e.g. supposing country X's copyright period is the composer's life plus 100 years, and 80 years after the death of a composer from X you want to use their music in the UK, is that OK because you're in the UK public domain period? I really don't know.

So what's the MCPS, PRS, PPL etc?

Right, now on to the alphabet soup.

In the UK and many other countries, there are special societies which were set up to represent composers or musicians, licensing works and collecting royalty payments on a collective basis.

These copyright collectives or copyright collecting societies were meant to make life easier not just for creatives but also for those trying to license or buy rights from them.

When songs are played on the radio, for instance, the radio station pays royalties to the collecting societies, who then pay the composers and musicians. How they decide who gets what and how much seems pretty complicated, and I'm not sure how it works if the composer isn't a member of the society, for instance.

Anyway, in the UK the MCPS-PRS Alliance (see Wikipedia) represents composers, songwriters and music publishers (MCPS stands for Mechanical Copyright Protection Society and PRS for Performing Rights Society). They handle royalties for composers etc when their music is recorded or publicly performed or broadcast.

But of course life isn't that simple. There's also the PPL or Phonographic Performance Ltd, which deals with royalties for record companies and performers in relation to sound recordings, when sound recordings are broadcast or publicly performed in the UK (e.g. played in clubs, shops or cafes), including Internet as well as radio and TV broadcasting. UPDATE: However Internet streaming is considered "making available" rather than "broadcasting" so performers have no "equitable remuneration" rights in relation to that.

This explains the differences between the PRS and the PPL well.

Just to complicate matters there's also the VPL or Video Performance Ltd, which handles the broadcast or public performance of music videos. Phew!

Copyright collecting agencies are generally set up on a per country basis, which makes sense, but they have networks of reciprocal agreements with each other to collect for each others' members whenever works are used in their own countries, and then pass royalty payments on to each other.

What about Creative Commons?

I'm a Creative Commons or CC fan. In fact this blog is licensed under Creative Commons: text and images etc. But I'm not going into detail on CC here.

Songwriters and recording artists can license their music under Creative Commons too. They have several types of licences but a popular one lets people copy, remix etc the music for free, but only for private non-commercial use, while anyone who wants to use it commercially would have to get the copyright holder's permission (and therefore would have to pay a fee or promise a cut of revenues to secure that permission).

CC sounds a great compromise in terms of getting users and fans to help publicise your work by giving copies to friends, while stopping outright commercial exploitation, but I should add one warning - I've heard it said that if you license a song under CC, then you may not be able to join the MCPS etc afterwards in order to get paid for radio airplay of that song and so on. I've not looked into that properly, but until I've figured that out I have to say I'm not going to license my own songs under CC yet. Checking this out properly is on my to-do list... if anyone knows the ins and outs of that, do please comment.

Other sources and links

So, that was a canter through UK music copyright as I understand it. I hope it's been helpful. There's lots of other info if you want it. You could read the Copyright, Designs and Patents Act 1988 if you fancy some light bedtime reading. Alternatively, try these sources:

Saturday, 22 September 2007

Firefox: view history "by sites", grouped!

I love Firefox, but there's one thing I'd change about it: the history. It's too hard to find a page again which I know I viewed recently, where I know the site it's from but I just can't remember exactly when I last viewed it.

In the history sidebar, viewing the history by site doesn't list all pages in your history properly. It lists all the web pages in your history, in alphabetical order by the page title - not even the visible title shown on the page, but its title as given by the page author in the head section of the page's HTML metadata, i.e. it's a "behind the scenes" title.

That means it doesn't even group webpages from the same site together alphabetically - it only does that if all pages from the same site start with the same words in their title (like "phydeaux3: GData Javascript Library", and "phydeaux3: YouTube Goes GData"), which relies entirely on the website owner having consistently entitled all their pages in that way. A long list of titles, not even ordered properly by site, is not exactly easy to navigate round, never mind find the page that you're looking for (and I don't think the history searching in Firefox is easy either, by the way).

Here's what my history "View By Site" looks like in version 2.0.07:

Surprisingly, someone reported this as a bug only relatively recently, in April 2007. I should have got off my butt and reported it myself much earlier, as it's been bugging me ever since I got Fox, but I didn't want to moan publicly too much. So all I did was forlornly do a search once in a while to see if anyone had fixed the problem, then moan quietly to myself and grumble a bit when I still couldn't find anything.

Well, I can now say - Huzzah! I've just noticed that the official Win32 20070823 [Trunk] build fixes this issue. (If you want to download it use the "All.. hourly builds for the last 14 days" link, if the others are broken.) I've now downloaded version 3.0a9pre (Minefield). See this screenshot:

All organised into nice neat folders, grouped by main domain URL of the site. Look at the difference, and drool! (OK, I'm sad like that.) It's so much more usable from a consumer and personal information management point of view.

I'm not going to use Minefield as standard because it's still experimental and I'm a scaredycat, plus more to the point my essential extensions like Greasemonkey don't seem to work with it yet.

But by downloading Minefield, I can now just use it whenever I need to view my Fox history by site in a grouped folder way. (Note: you need to close all existing open versions of Firefox before you try to launch Minefield's Firefox.exe from your unzipped download folder, or it'll just open your existing version of Fox.)

So now you too know how to view your Firefox history by site, organised properly by site into folder groups, pending the release of 3.0, and if you need that feature you could try doing the same.

Huzzah, I say again! I can't wait for 3.0!

Online shopping: credit card companies, how to promote your card (and supermarkets, how to make more money)

Internet shopping is exploding particularly in the UK (and see some detailed EU stats), especially amongst the time-poor, cash-rich A and B social grades so prized by retailers. Online sales of clothes have overtaken computers, even buying food and groceries on the internet is big, so online buying is certainly not a geek-only activity anymore, if it ever was. But having to be at home to take delivery at a time when you're supposed to be at work is a real problem for consumers without stay-at-home nannies or servants, which is in fact most of us, wouldja believe.

Most online shopping sites frequented by the average UK consumer take credit card payments rather than e.g. PayPal, from experience, so electronic shopping by credit card is growing.

This means there's a big missed opportunity here for credit card companies, who already face fierce competition for users judging by the number of letters I get every week from companies trying to thrust "pre-approved" cards on me. They make all sorts of "special offers" I don't want or need, and which other companies offer anyway. Why can't they offer something I do need?

Dear credit card or payment card companies, would you like a real selling point to differentiate yourselves from your competitors by promoting a simple service which consumers really want because it'll solve a genuine and common practical problem for them?

Here's how to promote your card (and I'm not even charging for this advice, aren't I generous): offer your customers the option of giving two, maybe three alternative addresses which will automatically be recognised as an official "registered address" on online or electronic credit card payment systems when entered for a "customer not present" purchase.

Then, as well as home address, consumers can register their office or work address, maybe their mother's or a friendly neighbour's, and have their orders delivered there where they can be sure someone will be in to take delivery and sign if necessary, rather than having to play telephone tag with couriers who try to deliver to a home address during work hours when you're, well, duh, at work.

Missed deliveries for "not at homes" also cost businesses a lot of money, which they could save if only credit cards provided this option. So my suggestion would kill two birds with one stone. Credit card fraud could be minimised by only allowing the customer to register 2 or at max 3 official addresses, after going through the usual security checks with the credit card company.

Then, when you buy stuff over the Net or on the telephone, you could enter your preferred delivery address on the online form or give it to the seller, your credit card would be accepted, and you could get your items delivered easily. You'd only have to register your delivery address once, with your credit card company, and not separately with every retailer that allows alternative delivery addresses, though of course you'd still have to give that address as your delivery address for your purchase.

I don't understand why credit card corporations don't already offer this service. Maybe their computer systems aren't up to coping with more than one "registered address" per customer?

Yes, it's possible to get round this problem at the moment. I do, by having one card registered to home and a different credit card registered to work, and using the work card when I need stuff delivered to work. Also, some suppliers are willing to deliver to your workplace, e.g. Amazon, though in some cases they'll do that only after you've ordered from them a few times, and you have to ask for it or input your alternative address. The big supermarkets cleverly offer their customers a choice of set delivery time-slots so that you can pick a delivery time when you know you'll be in, and they even deliver out of office hours. Some people have staff at their homes, but that's not exactly most of us. Ingenious secure solutions to the home delivery problem include the Hippo Box or Dormouse Box, which I can't have as there's no way I'd get permission to have one bolted to the front of my grade 2 listed building, otherwise I'd order one like a shot.

But really it's a pain and I'd much rather have one credit card which I can be sure I'll be able to use anywhere to buy anything and get hassle-free delivery of my goods at home or work etc, whatever I decide for the individual purchase.

I've banged on about the home delivery problem before, but I thought it was time to do so again. I really wish the IMRG would lobby the credit card industry about this, because it has to be good for e-tailers too as well as sellers in telephone and mobile commerce, or any kind of home shopping really. If a credit card company takes up this idea, please let me know, I'll be switching to you pronto (as long as you offer cashback too!).

And if any supermarket delivery service (Tesco, Sainsburys, Ocado etc) wants to branch out by offering its delivery service to other retailers for a fee, given that they've clearly mastered the art of making deliveries outside of office hours in definite time slots that suit the customer while still making a profit, the Royal Mail and courier companies had better watch out!

Wednesday, 19 September 2007

Firefox QuickTime security issue fixed

Firefox users should upgrade to the latest version if they haven't already, as it fixes the QuickTime security vulnerability I previously described.

Good on the Fox developer team for coming up with the security update fast - thank you!

Tuesday, 18 September 2007

Is Google secretly German? & the Blogger fix!

My Blogger Dashboard etc suddenly started showing some text in German (see screenshots), but as usual Kirk came up with the fix so I didn't have to do any troubleshooting of my own, thanks Kirk!

To stop the occasional German messages, the solution is simple - if your Dashboard language is "English - UK", just change it to "English - English":

(Sadly the change didn't fix the problem of the comment moderation and published comment email subject lines no longer showing the title of the post, so that must be a different issue or bug.)

"English - English" here of course means US English, as the gospel according to Google clearly dictates that American English is the one true "English". So what if Wikipedia thinks "English - English" means British English? Google clearly not only want to organise the world's information, they want it to be in US English, so there! Maybe the differences between the two were too confusing, or we British bloggers on Blogger have been unintentionally saying things which are really awfully rude in American even if they ain't so in UK English.

Just to hammer home the point and hasten the conversion to the only English that counts, various Google services won't work, or didn't use to work, unless your language preference is set to US English, e.g.:

I'm sure there are other examples I've not encountered yet - and if anyone has come across others, please do post a comment here, I'd be very interested to hear about it!

The weird thing is that Blogger used to work perfectly well in "English - UK", but now obviously Google think we British are little different from the Germans... and hey, many people would say we have more in common with the Europeans than the Americans now, anyway. Or is it a cunning ploy to get us all to speak German - do Google have a secret agenda here..? (have you seen that excellent EuroEnglish joke that's been around just about forever?)

So us British English speakers had better like it or lump it, or presumably better yet just switch to using American English or else, nyah nyah yah boo sucks!

American imperialism (or rather linguistic imperialism) at its best, innit?

Monday, 17 September 2007

Blogger: different comments email problem - & German??

Team Blogger's Known Issues Blog said yesterday 16 September 2007 about Google's Blogger that:
Comment moderation email appears broken and without formatting in many email clients. Until this is fixed, the Approve and Reject URLs should be visible at the very bottom in the literal HTML. You can also moderate comments by going to the Posting > Moderate Comments tab in the Blogger interface.

What's weird is that I haven't had that particular problem. I've had a different problem, or should I say "issue", instead.

Normally comment moderation emails on my blog look like this (I get my Improbulus emails via POP on Outlook; I've blanked out my comments mod email address):

And after publishing, the published comment emails look like this (ditto):

Look at the Subject line of the email. In both cases you'll notice that the subject line has the title of the post clearly stated in it.

However, since Friday 14 September comment moderation emails (and published comment emails) all look like this - the title of post isn't in the subject of the email anymore, only the title of my blog:

I really miss that feature. It was very handy to see at a glance which post a comment was on. I don't know if Blogger deliberately disabled it, or could it be part & parcel of the "broken" comment moderation email syndrome?

I see I'm not the only person with this problem, at least one other person has posted about the same issue in the Blogger Help Group.

Here's another weird thing. I doublechecked them, several times, and my interface language preferences in both Google general preferences and the Blogger dashboard are set to English (UK). But since yesterday, I've been getting various notes in Blogger in German:

Am I missing something really obvious? If not, what gives at Blogger?? And does anyone know how to change the German bits back to English (UK)?

Gmail: funny ad - but no adult filtering?

(No you're not seeing double! This is deliberate. I'll explain in a future post.) You know how Google inserts Adsense ads in your Gmail sidebar, depending on the content of your emails? Well I got this most peculiar ad just now in my mail, did a doubletake and, yes, my eyes weren't deceiving me:

Pole dancing, yep. Obviously very in keeping with the other mostly technology-oriented ads, isn't it. That's a subject of huge interest to me, of course (hah, I'd do me back in! Not to mention other parts of me. Supple I am not).

Hmmm, but maybe it's a new tech term I haven't heard of yet? Mashups first, poledancing next (or should that be vice versa)? Kinda go together don't they...

It's quite funny, in a way. But more seriously, if I were a "digital mom" I'd be a bit concerned about ads like this popping up in my daughter's email. Does Google's SafeSearch filtering, which you can turn on in your preferences for general Google searches to block adult-oriented or porn material and other "explicit sexual content" as Google put it, work in Gmail too? And even if it did, how would you prevent your kid from turning it back on??!

Google have been blogging about various lesser-known features of Gmail and labels and filters, but adult content filtering is probably something Google needs to think about if they haven't already, as Gmail grows in popularity.

Sunday, 16 September 2007

Gmail: funny ad - but no adult filtering?

You know how Google inserts Adsense ads in your Gmail sidebar, depending on the content of your emails? Well I got this most peculiar ad just now in my mail, did a doubletake and, yes, my eyes weren't deceiving me:

Pole dancing, yep. Obviously very in keeping with the other mostly technology-oriented ads, isn't it. That's a subject of huge interest to me, of course (hah, I'd do me back in! Not to mention other parts of me. Supple I am not).

Hmmm, but maybe it's a new tech term I haven't heard of yet? Mashups first, poledancing next (or should that be vice versa)? Kinda go together don't they...

It's quite funny, in a way. But more seriously, if I were a "digital mom" I'd be a bit concerned about ads like this popping up in my daughter's email. Does Google's SafeSearch filtering, which you can turn on in your preferences for general Google searches to block adult-oriented or porn material and other "explicit sexual content" as Google put it, work in Gmail too? And even if it did, how would you prevent your kid from turning it back on??!

Google have been blogging about various lesser-known features of Gmail and labels and filters, but adult content filtering is probably something Google needs to think about if they haven't already, as Gmail grows in popularity.

Girl geeks: women in technology supporting each other

The London Girl Geek Dinner 15 on 11 Sept 2007, sponsored by Cap Gemini, was excellent. The scheduled speaker from Cap Gemini had to cancel, but what transpired instead was various speakers taking short slots each, with the major common thread being how women in technology could support each other - on top of the usual networking opportunities.

The ideas that people came up with were very good and helpful, for more details see Maz's post on the Girlygeekdom blog. I'm sorry that I couldn't stay till the end and missed the last few speakers.

The main point of this post is to encourage tech women who haven't yet signed up to the mailing lists on the London Girl Geek Dinners site to do so, as that's where you'll hear announcements of the further concrete steps resulting from the constructive discussion at that dinner, in particular the proposed establishment of a mentoring system with forum, etc.

I know some people at the London Girl Geek Dinner 14 in August were muttering cynically about the same ol' same ol' "all talk no action" on promoting women in technology - well, they can't say there's no action now! Thanks as always to Sarah, Maz and Nicole for all their hard work, tireless energy and enthusiasm.

Further on women in technology, if you're involved in a Web 2.0 start-up or indeed any other creative or media enterprise, you might be interested in: