26 February 2021
Download – Podcasts – 4 of 4 Insights
When podcasts contain music, they will engage three relevant copyright restricted acts: synchronisation mechanical, streaming mechanical, and streaming communication to the public.
These rights will be engaged in respect of each of the musical composition, the sound recording and performances. So, a would-be user could be faced with dealing with at least publishers, societies and labels to obtain the clearances necessary to avoid infringement.
That could be a significant task when multiple commercially-released tracks are included, so how might those rights be cleared in practice?
Compare this breakdown of the rights with rights clearance for more 'traditional' forms of music usage in radio and TV broadcast programming and adverts, where the producer of the programme or ad would typically clear the synch and the broadcaster would separately clear the broadcast mechanical and the broadcast rights.
That makes commercial and legal sense as it ties the clearance of the relevant copyright restricted acts to those closest to performing them in reality. It would theoretically be possible for the producer of the programme or ad to clear all three sets of rights and for its authorisation to flow down the distribution chain so the broadcaster doesn't have to clear the rights separately, but that's generally not how it works.
There are good reasons for that. For example, the broadcaster would be better placed than the producer to report to a licensor on the broadcast uses it makes of a work; the producer will also know which works it wants to use, and can clear them way before the broadcaster gets access to the finished programme for broadcasting (assuming the broadcaster is not also the producer).
A good place to start is by considering whether the podcast producer is acting both, compared to the traditional model, as the producer and as the broadcaster.
That may depend on whether the communication to the public which results in the end-user listening to the podcast originates in one transmission from the producer. For example, if a podcast is stored on a server at the direction or under the control of the producer and it is from there that the user listens to and downloads it, albeit possibly passing through various links and embeds operated by third party providers, then that source is equivalent to the source of the traditional broadcast and could be licensed accordingly.
Personal experience tells us that podcasts are distributed in a very decentralised way – it's a common refrain when listening to promos for podcasts that they are available "via your usual podcast provider". Should it be the multiple providers that license the streaming mechanical and communication to the public rights, which would mean that multiple licences would be taken out for equivalent acts originating from the same ultimate source? Or would it be more appropriate and efficient for the ultimate source to license the transmissions taking place through all those providers?
That would provide a single licensing solution for all listens, and any related usage and revenue reporting, originating from that single ultimate source across any platform. The ultimate source would presumably be in the best position in the ecosystem to report on revenue derived from the podcast (eg from pre-roll ads and sponsorship) and report on the tracks included.
For similar reasons, the synch right should most obviously be cleared by the producer: they are carrying out the synch when creating the podcast, are in control of the music usage and would be able to satisfy the conditions licensors would typically place on music usage (eg by not creating parodies and avoiding commercial endorsements).
That is also consistent with how synch rights would be cleared, for example, in creating adverts or radio programming – the broadcaster would usually clear the synch right in its programming but wouldn't clear it in respect of adverts included in the broadcast.
If the streaming mechanical and communication to the public rights are to be cleared at source, they should likely be cleared for worldwide use. If the providers are making the podcasts available globally and if podcasts can't be geo-restricted in the way that audiovisual services can be, it could cause problems for both the producer and the provider if a global clearance hasn't been obtained.
We know from the English High Court's decision in the TuneIn litigation (albeit a decision which is subject to appeal by both sides) that if a provider makes available a radio broadcast in the UK but the radio broadcaster hasn't cleared the music rights for the UK then the provider could be infringing the UK copyright in that music.
The music clearance issue will also come up in negotiations between producers and commissioners of podcasts. When podcasts are being commissioned, we would expect to see the producer, rather than the commissioner, being responsible in the contract for all music clearances for the anticipated uses.
Whether it's possible for the producer to obtain such licences for its distribution as well as production is another matter, but characterising the producer as the entity responsible for both the synch and the onward streaming mechanical and communication to the public would be a prudent first step if this clearance structure were to be adopted.
Examples are gathering of podcast producers facing approaches from music rights owners for not having cleared the rights properly. That's no surprise – as podcasts become more and more popular, attractive and remunerative, the claims will follow the revenue. So, it's really important that producers think about their music clearances early on, rather than storing up problems for the future.
Producers may also be running the risk of the providers de-listing their podcasts if the rights haven't been properly cleared – if all the provider does is link to, or embed the producer's feed, it can be in their interests to ensure that it is only linking to or embedding podcasts which have got the appropriate clearances.
This possible structure of clearing music rights for podcasts all depends on appropriate licences being available at the appropriate part of the distribution chain. While the podcast ecosystem continues to develop, the availability of the right licences at the right part of the chain will develop as well.
To discuss any of the issues raised in this article in more detail, please reach out to a member of our Technology, Media & Communications team.
by Adam Rendle
by Andi Terziu
by multiple authors