Artists’ Rights Symposium - January 2018
I was recently honoured to be invited to be on a Grassroots Advocacy panel at the first ever Artists’ Rights Symposium at the University of Georgia in Athens, Georgia.
It was spearheaded, organized, and marshalled by David Lowery of the bands Cracker and Camper Van Beethoven, who is a fierce and persistent advocate for artists. Like his music, he is both elegant and scrappy. The conference was an amazing success and the diversity of the subjects and speakers was a real reflection of Lowery’s ingenuity, creativity and integrity.
I had never been to Athens before but immediately felt like home as it is a University town very similar to my hometown, Guelph.
The conference was day long mix of panels and speakers as well as very fascinating question periods from industry stakeholders, students and activists.
The keynote was delivered by Jonathan Taplin, Director Emeritus of the USC Annenberg Innovation lab, former tour manager for The Band and Bob Dylan, and author of the recent “Move Fast, and Break Things.”
His message, so well and dryly delivered, really resonated with me. While not a musician, he was an observer and participant in a time when artists were properly compensated and was witness to the sea change that left many musicians bereft - including his dear friend, the late Levon Helm.
Here is his keynote and question period in full and I urge you to give it a watch.
The basic theory of Western music, even in its simplest definition, is based on interconnection - a fluid motion forward of melody supported by harmony - a marriage of elements working together to create the desired effect.
At its foundation, it is the opposite of silo thinking - vertically integrated and monopolizing forces which is what Taplin warns us about.
Music is an ecosystem and the business of music should reflect this.
Here is my Keynote at the Economic Club of Canada in Ottawa on November 22nd, 2017.
Thank you for listening!
Here are some things that we can all do - artists, consumers, music industry stakeholders and government - to ameliorate the current situation.
The digital revolution has brought about significant change to our livelihoods over the last two decades and has presented many new challenges for artists. We need the Government to adapt their Copyright Act - as we've been asked to adapt our business model - to reflect these changes.
On August 9, 2017, the government announced that it was consulting on options for reform to the Copyright Board – the tribunal in Canada that sets many of the royalty rates we and other creators receive when our work is used. The Board is an important source of revenue for us and many other creators – and it needs to be fixed in many ways.
Here is my submission to Minister Bains and Minister Joly, as well as my letter to Prime Minister Trudeau signed by over 100 other artists and creators.
We look forward to timely, necessary and historic changes.
Economic Club of Canada Keynote - May 24, 2017
I was asked last year to deliver a thank you to Music Canada President, Graham Henderson, here at the Economic Club following his speech about the "Broken Promise of a Golden Age". Graham's speech addressed the social contract made in the late 90s that reflected a repeated prediction: in a digital world with rules that help fuel technology companies' growth, creators would be better off and playing fields would be levelled. Instead of a new Golden Age, artists have experienced a sharp erosion of their rights along with their ability to earn a living from their creative works and participate in a viable marketplace.
Being much more comfortable singing and playing fiddle behind a microphone, I asked what I should say in my thank you speech and was encouraged to just be honest about how my life and the lives of my friends look these days, so I did just that. I was quite unprepared for the reaction. A lot of people were fairly surprised at the current state of the music industry and what the realities are for a musician who is not a household name but not a beginner, someone with 17 years of professional performing experience and a career that has included a lot of recognizable works and collaborations and still has trouble making a living.
Here are the Coles notes about myself. I started playing violin at age 4. I studied Opera Performance at Western and then McGill. Currently I am most excited about my duo with Andrew Penner, called Harrow Fair, and the boutique record label I run, Roaring Girl Records. For seven years I was a member of Great Lake Swimmers and I’ve played with Jim Cuddy, Steven Page, Calexico, Alan Doyle, Dan Mangan, Joel Plaskett, and played and sung on hundreds of songs by many different artists including Cowboy Junkies, Donovan Woods and Rose Cousins as well as my own records. I do a lot of studio work for film and television. For example, I performed all the fiddle for the CBC hit tv show, Republic of Doyle and recently the film Maudie about Nova Scotia folk artist, Maud Lewis. I started and am the Artistic Director of a new Festival in the Muskoka town of Gravenhurst that we are launching this August long weekend with three days of programming including our headliner, Jim Cuddy. I am a member of Soulpepper Theatre Company and will be performing in New York City this July at the beautiful Signature Theatre on 42nd Street. I am a member of the Board of Governors of Massey/Roy Thomson Hall and on the Board of the Canadian Independent Music Association.
Sorry about the laundry list, but I’d like to get my point across which is even though I do all of that, I have a serious problem. My problem is that because of this Broken Promise of a Golden Age, I’m barely able to make a living.
When artists bring their concerns to policy makers, the response we are given – and I have heard it personally – is that creators are asking for the clock to be turned back and they are not going to do that. That is not what we want. However, we do need to look back at the policies and promises that were made in the late 90s, and recognize that times have changed. If anything, we'd like to turn the clock forward and rethink some of these ideas and assumptions that have turned out to be false and predictions that have sadly not come to pass.
At Minister Joly’s ECOC Speech last June, I was able to have a conversation with her and her message was that “artists need to speak up”, that she needs creators on her side - Out of this came Focus on Creators - a coalition of Canadian musicians, authors, songwriters, and other members of the creative class, which was created to bring focus to the artists’ perspective in light of some major federal cultural policy activities. At this years Juno Awards in Ottawa, I had the opportunity to speak to Minister Joly again and again she said that artists need to speak up. It’s a little uncomfortable to do, I’ll admit - as the outside perception of success is so often wrapped up in financial security and I’m here admitting to all of you that it’s looking pretty grim in that regard on a day to day basis, let alone saving for the future. It is also scary - and I told the minister this - to be openly critical of the hands that feed you, even if they are only feeding you morsels, but she only reiterated that we need to speak up. So here I am. Speaking up.
Every time the subject of the digital revolution comes up, the main solution creators are offered is “adapt”. There are some adaptations we have power over and some we don’t. Artists were told that part of our income should be from CDs sold off the stage. Well, I run a record label and yet I couldn’t even buy a Macbook with a built in disk drive and the only place I can play a CD is in my old Corolla. Okay, so we adapt to the new ways of accessing music and advertising our art.
We were promised that the digital age would level the playing field by eliminating the middleman. As an indie musician, I upload my tour dates on my website, Facebook, Bandsintown, Twitter, Instagram and FACTOR. I report and update my neighbouring right claims to Actra and manage my creative catalogue with ReSound. I report my shows and setlists on SOCAN, pay to report my sales on Atvenu, use Soundcloud for private streams for media, YouTube to upload my content before someone else does, and pay a percentage of my income to my distributor to get my music online and in stores.
Far from disappearing, the middleman has multiplied! Worse yet for the artist, it is an overwhelming amount of activity and does not leave much time to do the actual creating.
In 2014, a senior manager at Google Canada provided his opinion on this to Parliament’s Standing Committee on Canadian Heritage:
“The challenge is that the skills that are required to succeed have radically changed. Some are doing a better job at adapting than others because it's just a completely different environment they're operating in.”
Okay, thank you for the update on my challenges in the landscape that you created and perpetuate. So that leads me to this - a word that is very important to me. Accountability.
Well, let’s look at the current situation and who is accountable for the devaluation to which we are forced to adapt. We now have 13 competing paid subscription streaming platforms in Canada (1), among them Spotify, Apple Music and Google Play, and over 400 legal digital services worldwide.(2)
Picture each shiny new streaming platform as a shop window. Our content – at fire sale prices – fills their shop window, giving them credibility while creators of this content are asked to do the advertising. They give us – the creators – lists of "Best Practices" to get more of our hard-won fans to use their services. If we are not getting on playlists then it is our fault for not engaging with our fans enough. But in reality, it is becoming increasingly difficult for independent artists to land songs on their “curated playlists” in what is emerging as a 21st century version of payola.
The formula is much the same on the ad-based services. Except they price our work even lower!
Let’s look at the biggest music service in the world – YouTube. Did you know that 82% of YouTube users use it for music? (3) It is supported by advertising and it is based on user uploaded content. But wait. Running a commercial site based on unauthorized uploading of copyrighted music is illegal, right?
YouTube says, it isn’t our fault – we are just the shop window. We didn’t put the items in the window, so we are not accountable for them. We are a passive intermediary. We are not liable for this massive copyright infringement.
But – once again – wait. A top brass at Google just bragged that “80% of all watch time is recommended by YouTube.” He explained that “Everybody thinks that all the music that’s being listened to and watched is by search.” But it isn’t, and in his words, “that’s a really important and powerful thing.”
This means that YouTube actively directs consumers. This doesn’t seem all that passive to me. Zero accountability.
And when asked about the problem of low payments to artists, a Google executive said:
“It's important to note that on the concerns that have been flagged, there's no consensus even amongst the artistic community about the impacts of streaming and what they actually think about it or what they don't think about it. Every single time I hear a newspaper article about the reduction in royalty rates they're getting from streaming, I'll see another artist who basically says, “well, actually my royalty rates are pretty good”.
Well here’s a consensus. Your rates are the lowest in the world! Your revenue is built on the backs of other people’s talent and work and you refuse to acknowledge it.
Accountability means acknowledging value and compensating for it.
Here’s another solution musicians are presented with - Touring. So is Touring the Answer?
There are a lot of positives about touring, and you learn to find the bits you enjoy and make the most of them, but still – it’s work. Since the devaluation of music that has occurred in this new era of free, fans are more unwilling to pay for live music and the market is saturated with bands trying to eke out a living on the road.
Touring is also difficult for many artists. The framework doesn’t exist to support some genres - like hip-hop; it is unkind to people with families, to women. Loreena McKennitt - an artist/entrepreneur hero of mine, said that for artists like herself, touring was always a loss leader in order to promote her recordings. That has become entirely unsustainable.
She also points out that we should not be misled by equating fame with business viability as there are many famous people through the new technologies who are still unable to make a living.
When I was putting together the line-up for my festival, I texted a multi Juno-nominated musician friend to see if he was available. He texted back that no, he’d been full for a long time that weekend. 5 minutes later I got a text back saying “Oh, you mean as a musician? I thought you wanted to rent my Airbnb”.
He is so tired of taking his band on the road and losing money or barely scraping by with the help of grants and government funding.
This is not a business model. And it’s a far cry from a fair marketplace for our work.
As much as I would rather be writing and playing music than anything else, the truth is that I haven’t much to show for it besides a discography and a stack of lanyards. For a long time I thought I just wasn’t good enough until I started being honest with other artists friends who I had imagined were in a better financial situation than I was. It turned out, it was across the board.
So I have put some thought to that situation, the problems behind it, and how to get it right. We all have a role to play as artists, as consumers, as industry and as government.
Let’s start with Artists:
- Be as honest as you feel comfortable about your life and lifestyle. This will help us all be more honest and get the truth out.
- Create and protect your intellectual property. Speak up for your contributions to projects, make your own pieces of art and do the paperwork to safeguard your work.
- Support robust copyright laws. These are there to protect you. There is a misconception that this is only for the big fish, but that is absolutely wrong.
- If you are fortunate enough to have asked at any time during the last 10 years “Is it really that bad?” then congratulations, you’re part of the 1 percent. But here’s how you can pay back into the ecosystem that has disappeared since you got your break. Perhaps you’re in a position to bring an opener along on your "evening with concerts” or champion a young talent that you’re excited about.
As a CONSUMER:
There are a number of best practices that every streaming service gives to artists and labels. These are ways that they want artists to reach out to their fanbase that they have built and to plug into the system. Fair enough. Make it easier for your favourite artists.
Here are some FREE ways to help.
- Be a tastemaker. Create playlists for events, road trips, friend’s birthday’s. Add your favourite artists.
- Write reviews and rate. Getting reviews and ratings helps shift algorithms in favour of artists, helps their work come up as “things you might like” and can give your favourite artists an edge in the very competitive granting and funding races.
Here are some PRETTY CHEAP ways to help.
- If you think you’re going to buy a record or you’ve been tempted by a great track in advance of its release, buy the record on release day. This can accelerate an album onto the front page of whatever service you use to buy music, which is an excellent advertisement.
- Buy merchandise. Show off your band love with a sweet t-shirt, poster, tickets. Go to live shows!
- If you love an album or a book, buy it and buy one to give to a friend.
- Subscribe to a music service. For the price of 1 album a month, you not only get millions of songs at your fingertips with no ads, but you also are making a difference. The revenue gap between ad based services and their subscriber versions is significant.(4)
As INDUSTRY members:
- I wish this was a given, but respect the time it has taken for your artists to get to the point where you can help with your skills.
- Remember that this is an ecosystem. We need symbiosis. I recently heard an industry member say without irony “well, where would artists be without the industry?”. Well where would the industry be without artists? Creators are the song, Industry is the amplifier. It’s a delicate balance and we all need each other.
- Respect artists through clear and consistent language about compensation. In a profession where musicians are so often called upon to donate our talent “for exposure” or “for publicity”, and where our Union has little clout anymore negotiating fees for the vast majority of us, be upfront about payment. Be realistic about expectations and consider carefully what you are asking of them.
- Be an incubator. If you can offer building opportunities for younger artists or incentives for more established artists to support the ecosystem, do it. It will benefit everyone. I congratulate Massey/Roy Thomson Hall on their excellent Live at Massey Hall program, which helps to grow the careers of promising artists towards the goal of performing at the Grand Dame herself. They promote shows in venues of increasing size using their credibility, loyalty and taste-making status to give these artists a platform and a chance to build an audience.
- If you are in the industry, pay for your tickets. It is a common practice for label folk, managers, agents and lawyers to ask to be on the list for their artist’s shows. Yet these same artists pay you for YOUR services – why on earth do expect to get their work for free.
- If you have a company and you are in a position to redesign things or say you are perhaps a record company building a new premises.......take bold steps. Make a company for ten years, twenty years from now, not for right now. Patagonia, the outdoor wear company, opened a daycare at their offices. It recovers 91% of calculable costs annually, and the benefits – financial and otherwise – pay for themselves. Tax benefits, employee retention/engagement, more women in management, greater employee loyalty. SO imagine a record company that housed a daycare, not only for its employees, but also for visiting artists on PR junkets or musicians in town recording albums. Wouldn’t that be a draw, not only nationally but internationally? Imagine if more effort was made to help ALL women in all genres of the arts, not to make the choice between being an artist or a parent. Or being torn between those choices? If you want the executives of tomorrow, affordable childcare should be a mandate for every company and for every employee.
What the GOVERNMENT can do.
- End Tech Company Safe Harbours.
- The social contract that internet service providers put forward back in the 1990s was that they would provide connectivity to the world in exchange for immunity from liability when they are acting as a ‘mere intermediary’, i.e., a ‘store window’, or a ‘mere search engine’. The bargain was struck, and the laws were drafted to create “safe harbours” for those early-days internet companies. But over the past 20 years, business models have changed. Online services like YouTube actively direct consumers to music on their site that they think consumers want to hear. They are, effectively, selling artists’ music. They’re just not paying creators appropriately for it, because they’re pretending this isn’t their business model.
The European Commission has now acknowledged that the market isn’t functioning properly, has identified and accepted the problem as an unintended Value Gap, and agreed that legal clarification is needed.(5) Can we follow suit?
End other industry cross-subsidies.
The Radio Royalty Exemption is an industry cross-subsidy given to every commercial radio station in Canada, exempting them from paying more than $100 in royalties to artists and record labels on their first $1.25 million in advertising revenue. (6) The Exemption was introduced as a political compromise during the 1997 amendments to the Copyright Act, but it is now outdated and unjustified – if it ever was justified. It is really not right that artists and labels continue to subsidize these large media companies.
Let’s look at TV and film royalties:
Because composers, songwriters and publishers receive public performance royalties when their musical works are used in TV and film soundtracks, one would think that performers and record labels would be afforded the same right to compensation. But not in Canada. The definition of ‘sound recording’ in the Copyright Act is worded in such a way that recorded music is not considered a ‘sound recording’ when it is in a TV show or movie. (7) This means no royalties for performers like me.
For example, even though I played on almost every episode of CBC’s Republic of Doyle, which is now syndicated worldwide, I only receive the one-time union rate I got per session, which was around $280, while the composer collects residuals every time that show airs. 44 countries around the world – the UK, France and Australia among them – afford performers and record labels the right to receive public performance royalties when their sound recordings are used as a part of a soundtrack in TV and film. This contributes to the fact that there are very few ways my work will make me money unless I am there performing it in real time - and although it feels as though I try, I can't be everywhere.
It is undeniable that the landscape has changed significantly, but artists are still creating and we are asking for some accountability from the Government. We are asking for some redefining of who it is they are protecting and fostering and for the amendment of policies that date back to the late 1990s – policies that are now out of date. If we need to adapt, then so do the policies that affect us.
I know my parents worry about me and my future. Even though we are very, very different - they are brainy, introverted academics - they have been extremely supportive over the years. I think from a practical point of view - for the amount of hours I have spent learning to play my instrument they might wish I had instead spent that same amount of time becoming a doctor. But they understood that the value of a musical education goes far beyond my credit score or whether I will be able to ever afford to buy a house.
Music gave us a mutual language where there might have been none; it gave us a common ground. Music has been my passport all over the world and has introduced me to so many incredible people and places. I have been able to sit in with Howlin’ Mad Perry and his blues band at Ground Zero in Mississippi, lead a session through a set of Cape Breton fiddle tunes at the Cobblestone pub in Dublin and join a country band on my first day of moving to Los Angeles, giving me a community to make the move a soft landing.
I am proud of my label and of its focus on collaboration, something I feel is more necessary than ever. I am thrilled about my music festival this summer and the support of the artists, the community and sponsors who saw value in my idea.
I am sure my parents would sleep easier if I had a more stable job they could get their mind around. One that has a set hourly rate – like doctors get.
I recently read an article in the New Yorker about how Artificial Intelligence is providing more accurate diagnoses than doctors. In my opinion, the last thing that AI will be able to replicate, if it ever can, is the limitless scope of the human imagination. So, perhaps, if we apply some of the solutions I and many others are proposing, being a creator will become the more stable job in the long run. There’s no reason that cannot, nor should not, be so.
1. See Pro-Music’s listing of subscription services available in Canada (and North America): http://pro-music.org/legal-music-services-north-america.php.
2. See IFPI’s Global Music Report 2016, p. 38. Available online here.
3. Report by Ipsos Connect for IFPI, “Music Consumer Insight Report 2016”, p. 10, 11. Available online here.
4. For more on the Value Gap, see IFPI’s Global Music Report 2017, “Rewarding Creativity: Fixing the Value Gap”, p. 24-27. Available online here.
5. See IFPI’s Press Release on the European Commission’s proposal here, dated September 14, 2016.
6. Section 68.1(1) of the Copyright Act.
7. The definition of ‘sound recording’ in the Copyright Act reads as follows: “sound recording means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work.”
Kate Taylor's Globe & Mail article covering this topic HERE. "What Happens When We Starve Our Artists"