Agreements to produce podcasts – what is there to consider?

Author

Adam Rendle

Partner

London

Data protection clearances

Presenters and guests will very likely be sharing personal data and possibly special category data (eg data revealing political opinions, religious or philosophical beliefs, or concerning health, sex life or sexual orientation). That means the producer will, and podcast providers may, be controllers processing a wide range of personal data for which they will need a lawful basis. Post-GDPR, producers of content should be seeking considerably more sophisticated data clearances/releases which should cross-refer to or incorporate a (UK) GDPR-compliant privacy policy.

The UK GDPR and the GDPR (which for the purposes of this article are the same unless otherwise stated) require the controller to provide a privacy notice to explain how the participants' personal data will be collected and processed. This must be provided before the time of collection where the data is obtained directly from the individual.

The privacy policy should, among other things, contain a clear explanation of the ways in which the data will be used. That should include both the type of recording to be carried out (eg audio and video), as well as the types and locations of the media in which the recordings will appear. As far as possible, the data releases and the privacy policy should capture the onward use that will be made of the podcast, including the processing which will be carried out by the platforms on which it appears.

Lawful basis

Controllers also need to identify a lawful basis for processing and, where they are processing special data, meet one of the additional conditions under Article 9 GDPR. It is tempting for them to seek to rely on consent. However, given the risk of participants seeking to withdraw their agreement to inclusion after recording, perhaps because they have had a change of heart or because they don't like how they are portrayed, relying on consent as the lawful basis for processing personal data is risky.

Another option is to rely on legitimate interests. This involves a balancing exercise between the legitimate interests of the producer and the rights and freedoms of the individual which will depend on all the circumstances and may have to be re-evaluated if new information or facts become relevant. In this light the clearances/privacy policy should reference what those legitimate interests are.

As far as processing of special data goes, suitable Article 9 conditions could include explicit consent, or that the data has already been made public by the individual, or that processing is a matter of substantial public interest.

Journalistic exemption

In some situations, controllers may be able to rely on the journalistic exemption. In the UK, this is set out in Part 5, Schedule 2 of the Data Protection Act 2018.

Under the journalistic exemption the main GDPR principles and rights do not apply:

to the extent that the controller reasonably believes that application of the GDPR principles and rights would be incompatible with the special purposes (journalism, academic, artistic and literary purposes), and
where processing is carried out with a view to publication of journalistic, artistic etc material, and the controller reasonably believes that publication would be in the public interest.

Public interest is not defined and each case needs to be decided on its merits. The controller must take into account the special importance of freedom of expression and information and have regard to the relevant codes of practice.

More detail about these and other GDPR obligations, and on how GDPR impacts the media, is available here.

Copyright assignments

Is it a "work for hire"/buyout arrangement or a (non)exclusive licence? Even if it's just a licence, does the commissioner want to acquire any rights in materials created for a particular season or segment? For example, should the sound recording/master copyright reside with the producer? If rights are to be assigned, do there need to be any withholdings, for example pre-existing or third-party material or concepts the host or producer use elsewhere?

If it's an assignment, it will be important for the commissioner/producer to cast its net as widely as possible – for example to include scripts, summaries, early versions of the audio and any other production material. And when taking an assignment, it will still be helpful to acknowledge the types of derivative uses the producer would like to make eg books, TV adaptations etc. They would need to be included in a licence in any event, possibly subject to options and/or first look rights.

If it is to be a licence, whether it's exclusive or non-exclusive will be important, particularly when determining whether the podcast is to be available on all providers (consistent with a traditional conception of a podcast) or whether it is intended to be exclusive to the commissioner's service.

If assignment or exclusivity is the model, the commissioner may want to consider what, if any, obligation to exploit they are willing include, especially if the creators are paid on a royalty basis. Failure to exploit can, in some circumstances, be a breach so expectations around exploitation should be set in the agreement.

Copyright clearances

Whether or not the output is assigned or licensed to the producer/commissioner, it will be important for rights in any third party material to be properly and fully cleared for the full extent of the use envisaged by the rights grant, including the various media types and ideally for worldwide use. That may not always be entirely possible for the music, or other commercially released material to be included but it is worth building in a process for how such clearances will be communicated between the parties, handled and then paid for.

If copyright exceptions are to be relied on in the absence of express clearances (eg the UK fair dealing defences) the parties should be clear on the process for deciding that clearances won't be obtained and on how best to rely on the defences, and then who bears the downside risk of a claim if the rights owner doesn't agree that a defence applies.

Finally, bearing all of this in mind, the parties will have to decide what warranties around entitlement to use, non-infringement etc would be appropriate and feasible.

Branding

The parties will need to decide who is going to own the title of the show and secure registered trade mark protection for it. A significant driver of the decision will be whether the producer or commissioner wants to be able to continue the brand (and associated profile on the providers' services and social) with another cast if the hosts/recurring guests were to leave. That will naturally come down in part to who originated the concept and/or what life the show had outside the specific production.

Application of the Copyright in the Digital Single Market Directive

Authors and performers will receive additional rights in the EU under the Digital Single Market Copyright Directive to:

receive "appropriate and proportionate remuneration" for the licence or transfer of their works and to additional remuneration if their initial payment was disproportionately low relative to the value of their work, effective from 7 June 2021, and
receive "relevant and comprehensive information on the exploitation of their works and performances" from the parties to whom they licensed or transferred their rights, effective from 7 June 2022.

Judging what is appropriate and proportionate will be context specific but licensees/transferees of works may be put under additional scrutiny to justify the basis for their payment models. Buyout fee arrangements will be more susceptible to challenge or adjustment than royalty or revenue sharing models. If a podcast becomes a substantial success and, for example, becomes the subject of derivative exploitation, the author or performers may seek an uplift on their initial payment.

The transparency obligation requires information "in particular as regards modes of exploitation, all revenues generated and remuneration due." That raises the question of how the revenue attributable to an individual podcast can be identified and reported. If the producer is entitled to insert its own ads and sell its own sponsorship then it will likely have considerable information available to it on the revenues it has generated and creators are entitled to it. Likewise, the producer may be tracking where the podcast has been listened to and, again, that is information to which the creators are entitled.

If a downstream distributor has the information on revenue and modes of exploitation rather than the initial licensee or transferee, then that distributor can become responsible for providing the information.

The transparency obligations can be limited where the administrative burden of providing the information would be disproportionate to the revenues generated and can be excluded if the contribution of the author or performer is not significant compared to the overall work.

While the Directive will be introduced only in EU Member States (and not, for example, the UK), its applicability to parties based outside the EU and contracts governed by non-EU Member State law is not yet clear. However, it would be prudent to assume that contracts for exploitation of copyright works taking place in the EU will be subject to the new rights.