Copyright (Rights and Remuneration of Musicians, Etc.) Bill

John Whittingdale Excerpts

2nd reading
Friday 3rd December 2021 Commons Chamber

[Mr John Whittingdale (Maldon) (Con)]

Let me start by congratulating the hon. Member for Cardiff West (Kevin Brennan) on introducing the Bill, which raises serious issues. Every time we speak in the Chamber, he points out that we do not just share a birthday but we were actually born on the same day.

[Kevin Brennan]

Make up your own minds. [Laughter.]

[Mr Whittingdale]

It is a challenge I happily accept. As a result, we probably have similar tastes in music, although not identical. We grew up during the same era. Where we do agree is that we both share a love of music —it is tremendously important to me. It is also tremendously important to this country; we are exceptionally good at it and have been for many years. The music industry’s importance to the UK economy is frequently cited—as the Select Committee points out, it contributes more than £5 billion in gross value added—and we are the second biggest exporter of music in the world, which does an enormous amount in terms of global Britain and the projection of our soft power. The music industry is a huge success story.

The UK’s exports have great potential, but it is worth my flagging the fact that the UK’s music share is beginning to decline: in 2015, we took 17%, but that has now fallen to 10%. That is because of the growth of new markets—in particular, Latin America and the developing economies—and the advent of things such as K-pop. I do not know whether the hon. Gentleman is a fan of K-pop; I have to say that it slightly passes me by, but I recognise that it is extremely popular.

The hon. Gentleman and I have followed the music industry for many years. He declared his interest as a performer and songwriter—indeed, I have heard him play many times—and I should declare that my son works in the music industry for Columbia Records, which is part of Sony Music. I have learned a great deal about the economics of the music industry from him, but my love of music and involvement in the industry pre-date his birth by quite a number of years.

The hon. Gentleman talked about when he first got involved in music industry issues; I go back rather further: my first involvement was 35 years ago when I supported the music industry campaign for the introduction of a blank-tape levy. I fear that some in the Chamber may not even know what a blank tape is, let alone a levy on one. It dated back to the years when—this is guilty admission time—one could sit with a cassette tape recorder waiting for a song to come up on the top 20 and then record it. That was piracy and a breach of copyright and was to be condemned. When I learned more, I recognised that it was not to be encouraged and that there should be a levy. Some in the industry still advocate a levy, albeit not on blank tapes but on devices such as iPods or smartphones.

Blank tapes were an early example of the threat to the music industry from piracy, which of course increased dramatically with the advent of the internet. The hon. Gentleman talked a little about the threat that emerged from illegal downloading and, in particular, peer-to-peer file sharing and the growth of companies such as Pirate Bay and technology such as LimeWire.

I recall, when I was its Chair—a little while ago now—taking the Select Committee to see Lucian Grainge, about whom I want to say a word because, although the hon. Gentleman did not name him, he referred to him. Lucian Grainge is the chief executive of Universal Music and is going to bank a huge amount of money this year because Universal Music has just conducted a very successful initial public offering and sold a 10% share. As chief executive, he is going to profit from that and we should celebrate that: Lucian Grainge is a British music industry executive who has built Universal Music into the most successful company in the world. As a Conservative—somebody who can celebrate that success—and a British citizen, I am delighted that he is going to do so well, but the whole company will do well, too. It is a remarkable success story, because when we went to see him back in 2008-09, he told us that he was seriously concerned that the industry itself was going to die, such was the extent of the threat to the industry at that time as a result of piracy. Beginning in the early 2000s, there was a 15-year decline in music industry revenue that was directly attributable to piracy.

[Geraint Davies (Swansea West) (Lab/Co-op)]

The right hon. Gentleman mentions Lucian Grainge; he may be aware that were an artist in Britain to produce a song and get 1 million streams, they would receive around £100, so to receive the £153 million that Lucian Grainge gets, that artist would need 1.5 million million streams. While Lucian Grainge may be a great corporate man, making £3 million a week, he has never produced any music that we would ever want to listen to. Surely the right hon. Member cannot justify that level of greed when there is poverty in the spring of our creativity across this land.

[Mr Whittingdale]

When, about 15 years ago, I attended the Music Industry Trusts Award dinner where Lucian Grainge was honoured, I heard from the artists whom he had spotted and signed up. In particular, I remember Take That, who said they became as successful as they did due to Lucian Grainge’s support. Yes, he does not necessarily play an instrument—he may do so in a not particularly professional way, although I may be doing him an injustice there—but he is an extraordinary talent in the industry. He does what labels are there to do: he goes out and finds talent, invests in it, builds it up and makes it into the global stars whom we celebrate.

[Colum Eastwood (Foyle) (SDLP)]

I have no doubt whatsoever that Lucian Grainge is an extremely talented music industry executive, but would he be anywhere near as successful without many of the artists out there now who, having been locked down in their houses for almost two years, unable to make any money through live gigs, are living on poverty wages and getting barely anything from streaming revenue?

[Mr Whittingdale]

Of course, we depend on the talent in this country. Some of our most globally successful artists—people such as Adele and Ed Sheeran—come from the UK, and I must say that they do extremely well. Part of my criticism of the measures proposed in the Bill is that they will result in those artists who get streamed most doing a bit better, but those artists who do not get that many streams will not get much more money. One million streams sounds like an awful lot, but, in comparison to CD sales, it is not very much in terms of revenue generated for rights holders from digital service providers. I will come to that in detail.

The hon. Member for Foyle (Colum Eastwood) is right that, in a sense, what kept the industry going while revenues from legal sales or downloads were declining was live performances. Live performances became another major source of revenue for many bands—and it still is. Some bands do not receive many music streams but do well from live performances because they have loyal fan bases who follow them around. We must take account of musicians’ numerous sources of earnings. One of them is live; others are merchandise sales, synchronisation rights and, of course, sales of physical products and streaming. That is brought out strongly in the Intellectual Property Office’s survey of earnings in the creative industries.

[Joy Morrissey (Beaconsfield) (Con)]

On that point, who wrote a song is important to where the remuneration goes—it is not just about who is performing it live or not. The Bill provides a benefit in that, but for bands who we traditionally think of as performers, we must look at who wrote the music. Original writers and songwriters, as well as those who create original soundtracks for motion pictures, keep all the content and it is much easier for them to transfer their earnings and gains from their musical production. However, there is a difference between collectively packaged items and those that are not.

[Mr Whittingdale]

I completely agree with my hon. Friend. Composers, some of whom may not have their works performed live, are the foundation stone of the industry. I had dinner about three weeks ago with somebody who has probably never been heard of in this Chamber, Terry Devine-King, who is a composer, but writes for television and film productions and advertisements. He receives a good income from doing so. I absolutely recognise the importance of composers.

[Kevin Brennan]

I take the right hon. Gentleman’s point about Take That. I do not seek to personalise these issues too strongly, but is he aware that Gary Barlow was one of the more than 200 artists who signed the letter presented to the Prime Minister in support of my proposals?

[Mr Whittingdale]

I suspect quite a lot of artists whom I enjoy and admire may have signed the letter to the Prime Minister, but that does not mean I necessarily think they are right. Some artists are extremely knowledgeable about the economics of the industry, but it is horribly complicated, as I think everybody who has looked at it or sought to participate in this debate will recognise.

Before I move on to the measures in the hon. Gentleman’s Bill, as a former Minister at the Department for Digital, Culture, Media and Sport, I must put on record that I am proud of the Government’s efforts to sustain the industry, particularly when live performance became completely impossible as a result of lockdown. The fact that the Government were able to find £2 billion for the cultural recovery fund and bring in schemes such as the live events reinsurance scheme has kept the industry going.

One thing we can celebrate is that live is now back, and for those of us who enjoy music it is now possible to go and listen again. Last Saturday I was at the Witham Public Hall listening to Bootleg Blondie, which I thoroughly recommend to anybody who is of my generation and remembers with great affection Debbie Harry—who is still performing today, I think, and is about to go on tour. I also went to the Chelmsford Hot Box, in the constituency of my hon. Friend the Member for Chelmsford (Vicky Ford), and listened to two live bands: one a Scottish rock band called Helicon, with a sitar player, and the second a Mexican rock band. The owners of that venue said to me that they could not possibly still be in operation had it not been for the cultural recovery fund, so I take this opportunity to point out that the Government did keep that industry going.

Of course, the thing that has been the saviour of the industry and has reversed Lucian Grainge’s dire prediction is streaming. Where I disagree with the hon. Member for Cardiff West is that he said streaming was taking over from radio. It is not; radio is doing pretty well at the moment and there is very little evidence that it is in decline. I have been talking to Global about that in the past 24 hours. Where streaming is taking over, it is taking over from physical product or downloading. The revenue from sales of CDs or downloading is in steady decline and people now rely more and more on streaming.

The hon. Gentleman also talked about the way in which radio distributes money to performers, artists and composers. That is done through PPL. It is worth noting that in America, artists who get played on the radio do not get any money at all, so there is a specific way that money is distributed as a result of radio plays in this country that is different from streaming, but if we look in some other countries there is no money at all.

As I said, the revenue to musicians comes from a large number of different sources, and streaming is only one. However, it is noteworthy that in the past few years, the share of money from streaming that goes to artists has gone up. Streaming has increased steadily, but between 2016 and 2019—figures that come from the International Property Office’s survey of creative industries’ earnings—artists’ remuneration has gone up by 46%, whereas revenue to the labels has only gone up by 31%. Artists are taking a bigger share of the revenue from streaming services than they were previously, and that is borne out by the IPO survey.

I question what the hon. Gentleman said about the failure of the industry to engage with the IPO; it is not the case. If he looks at the final report he will see that it recognises that, after an initial disagreement about the scope of the survey and one or two other points, the industry provided a lot of data. There is an improvement, but it could go further and I sympathise with one or two points that the hon. Member for Cardiff West made. However, it is not as if artists are suddenly being deprived of revenue as a result of the move to streaming. I shall comment specifically on some of the hon. Gentleman’s proposals and particularly on equitable remuneration.

Equitable remuneration is in the eye of the beholder. Who decides what is equitable remuneration? One answer proposed by the hon. Gentleman is the copyright tribunal. Spain has a system of equitable remuneration, which takes away money not from the rights holders but from the platforms, to give to the artists. There is an argument, which I shall come on to, that the platforms get and keep an unjustifiably high proportion of revenue. However, in the Spanish system, about 23% of the revenue goes on administrative costs.

The principal problem is the idea that labels make huge profits at the expense of artists. That ignores what labels do. I remember from the early days of the industry—before the time that the hon. Gentleman talked about—another campaign mounted by the Culture, Media and Sport Committee, whose then Chair, Gerald Kaufman, was the right hon. Member for Manchester, Gorton. The Committee pointed out that CDs cost tuppence-ha’penny to produce, and therefore it cost virtually nothing to make millions of them, and yet they were sold for a vast amount—£10 or more. What that ignored—and the same applies to streaming today—was the vast number of artists that labels supported on the basis that they could be tomorrow’s Ed Sheeran or Adele. In the vast majority of cases, sadly, they are not, but the only way we can find the stars of tomorrow is to invest in a huge number of artists, in the knowledge that we will find a jewel among them.

When labels invest in artists they expect to lose money in most cases. That is just the way in which the economics of the industry work. About 40% of that revenue goes into marketing and A&R, which identifies artists and finds them. On marketing, people say, “Who needs labels any more because you can put music up on Spotify or YouTube, and you can promote it yourself on social media?” I do not think you would find a single successful artist who would agree with that.

At the moment, there are 60 million tracks on Spotify, and 60,000 tracks are uploaded every day. Among those there may well be real talent and stars, but finding them in that noise is almost impossible. Where a label comes in is with its A&R people, who go out and listen to bands and performers, and find unrecognised talent, which they sign and put together with session musicians, orchestras and song writers, and then market it. That requires not just negotiation with radio stations but expertise in promoting records. One of the biggest places to promote music is TikTok, and a huge amount of effort goes into trying to elevate artists on social media. All of that is where the expertise of labels comes in. They have an important function.

During our debate, attention has been given to the three major global labels—Universal, Sony and Warner. However, 26% of the market for releases is now held by the small independent sector. I have to say to the hon. Member for Cardiff West that I have spoken to a number of independent labels and they are all really concerned about the provisions in his Bill. Just to give three examples from many, Dirty Harp, Good Soldier and Cherry Red have all come forward and said that it will prevent them from finding new British artists and investing in them.

The irony is that the way in which the music industry has developed recently means that some of the most popular artists who are now being found and signed and whose music is beginning to be promoted are the young grime artists from the council estates—from very disadvantaged backgrounds. My fear is that if we take the money away from the labels to give to established, successful artists, we are depriving the future stars of the investment on which they depend. That is one of the real concerns about the effect of what the hon. Gentleman proposes.

The next thing I want to look at is contract adjustment. Yes, sometimes contracts do need to be revisited, and that is something that labels do a great deal of the time. However, the interjection of the copyright tribunal will create huge uncertainty, which will be exacerbated by the proposal for contract revocation after 20 years. Twenty years may sound like a long time, but it is not very long. If a label that is signing an artist and making an initial investment of tens of millions of pounds has the knowledge that they and the artist have reached a contractual agreement that will extend and that will allow that money to be recouped over a lengthy period, that does give certainty. If, after 20 years, the artist can just say, “Well, actually, we’ve decided that we are doing really well, so we want to tear up our contract because we don’t think it’s fair any longer,” that introduces a degree of uncertainty.

I would also say to my hon. Friends that it is profoundly un-Conservative for the Government to step in and say of a contract reached between two willing parties, “Sorry, we are going to completely legally give you the right to tear it up, even though you have committed yourselves to it.”

[Joy Morrissey]

On the issue of copyright and content, I agree with both points that have been made. However, in the nuanced sense, the issue is that the copyright can be adjusted or transferred over to the artist, where they have a pre-existing record label, so that online content, such as that streamed on YouTube, TikTok and Insta, can be made available. An artist now, in the modern day, has the ability to create a direct link between content being shared and direct remuneration, and that is separate from the labels. However, oftentimes, if artists are already linked into a contract, they cannot use that third mechanism, so it would be—

--- Later in debate ---

[Joy Morrissey]

I was boring for Britain, and I apologise, but I shall finish now. Thank you.

[Mr Whittingdale]

In defence of my hon. Friend, this is, as she was illustrating, an incredibly complicated area in which there are many different types of contractual agreement between the label and the artist. Again, the hon. Gentleman’s Bill does not necessarily reflect the number of different permutations that now exist. For instance, some artists want to take a lot of money up front and almost sign away their rights to future income streams from royalty payments. In some cases, that is because they are elderly; I do not want to pick out any particularly artists, but ones who are perhaps of a certain age or above might not think that enjoying the revenue from future streaming will last them very long, so they would rather take a substantial advance payment and give over the future royalty payments.

[Chris Bryant (Rhondda) (Lab)]

Of course I completely accept that, in the vast majority of cases, contract law should stand. If two people have entered into a contract, that is their business, and it is for nobody else. However, we have repeatedly, in lots of other industries, decided that there are occasions when exploitative contracts have been entered into, because there is not an equality of arms between both sides. For instance, in financial services, we legislated a few years ago to strike down a whole series of mortgages that people entered into, because they were not entered into on a fair basis. My anxiety is that the world at the moment is really stacked against lots of artists. We repeatedly seem to expect that their music should be free, and that seems unfair.

[Mr Whittingdale]

Oh, goodness, there were a number of points there. I am grateful to the hon. Gentleman for recognising that we should be very wary about stepping in to interfere with voluntarily agreed contracts. Yes, if there is evidence of exploitation and abuse of a dominant position, that may be a circumstance where we should. Actually, that is one of the areas where I think the hon. Member for Cardiff West has done us a service in allowing us to look at this issue. Action does need to be taken, and I know that my hon. Friend the Minister, in his response, will talk about what the Government are doing to address some of these concerns.

Before I finish, I want to continue to talk about what the hon. Member for Cardiff West is proposing. I have talked about the revocation and adjustment of contracts, and he is also keen for greater transparency. I think the labels are doing quite a lot to release information and make sure their artists can see the way in which the economics is working and how they are being remunerated. However, the hon. Gentleman is going further even than many of the provisions advanced by the European Union. Some of the information he wants is simply not available and, for instance, the involvement of the tribunal in all these cases would lead to a huge increase in administrative costs.

I pay tribute to some of the more far-sighted labels that are already addressing some of the concerns; they are not all doing so. The Select Committee, in its report, particularly talked about the initiative by Sony. It is by Sony; I do not say this just because my son happens to work for Sony. It has brought in a programme called Artists Forward in which it has essentially written off unrecouped balances for artists signed before the year 2000. That has been followed by some of the smaller labels, and the Select Committee rightly paid tribute to Sony and called on the other major labels to follow suit, which I think would be a good thing.

I do think that, even though the labels are not perhaps the villains of the piece that some have suggested, they could do more to try to ensure that there is fairer distribution and that their artists receive more money. In that respect, I think the Government response to the Select Committee report was right in saying that we need both to have working parties to bring together the Government, the IPO and representatives of the industry to look at these initiatives, and at the same time to invite in the CMA to carry out a market study. I am unhappy about what the hon. Gentleman is proposing, but even if I was not, I think I would say that it is premature to start legislating when that work is ongoing and we do not know what the outcome is going to be. It is sensible that we wait for that work, which is taking place now, before we reach any final conclusions.

[Dr Ben Spencer (Runnymede and Weybridge) (Con)]

On the point about markets, I was reflecting on the comments my right hon. Friend made about this being a statutory measure to allow a review of contracts. Is there a danger that that could create a market distortion that would actually diminish the number of new contracts being set up, because the music industry would see, in 20 years’ time, artists who are successful going to a different provider?

[Mr Whittingdale]

My hon. Friend is entirely right, and the labels are very anxious about that. When they reach agreement with an artist at the moment, they have, written in a legally binding contract, a certainty that would be removed if we suddenly gave the right to one party to say that, after a certain period, they could essentially just tear up the contract. It would create uncertainty, which is bound to be a disincentive to signing new artists, so I think my hon. Friend is absolutely right.

Where I think there is more work to be done, and I hope the CMA market study may bring this out, is in an area that is not covered in the hon. Gentleman’s Bill, which is the power of the digital service providers. They are very dominant, and the industry has been complaining for a long time about what it terms the value gap, which is the amount of money retained by the platforms and not given over to the industry. I have to say that YouTube is a particular offender in this. It takes advantage of this thing called safe harbour under the Digital Millennium Copyright Act and as a result gives over to the rights holders only a fraction of the revenue it receives, particularly compared with Spotify, which has a better record in this area.

[Mike Amesbury (Weaver Vale) (Lab)]

Surely the greatest distortion in the market is the fact that artists are not getting a fair day’s pay for a fair day’s work. This is fundamentally about fairness, and the Bill will help break down monopolies. One such artist is Tim Burgess, who has been very supportive of my hon. Friend the Member for Cardiff West (Kevin Brennan). My hon. Friend is on his listening party on 15 December, if I remember rightly, so tune in!

[Mr Whittingdale]

I just say to the hon. Gentleman, as I said earlier, that the revenue share going to artists has gone up, not down. I do not think it is as immediately obvious as he says that they are being deprived unfairly of income. This is an incredibly complicated area, as I think everybody will recognise. Before we reach any conclusions, let us have the CMA carry out a proper market study, let us have the working groups and conduct the discussions, and then we will see the evidence. However, if the hon. Gentleman looks at the report produced by the IPO on earnings in the creative industries, I do not think he will find evidence to support what he has said.

There are still issues to be addressed. I welcome the initiative of the hon. Member for Cardiff West in bringing the Bill forward and allowing us to debate the matter. I am pleased that the Government have taken on board the fact that concern exists and want to find out more detail about the economics of the industry and the facts. I look forward to that, but the measures that the hon. Gentleman has brought forward would not benefit the industry, and they might well result in some of the future stars we are going to rely on if we are to sustain the enormous success of our industry not being found, because the labels will be deprived of the money that they need to invest to find those artists of the future.