Copyright: where you stand as an online musician
Many members have been taking advantage of online technology to carry on earning a living through their musical activities during the COVID-19 crisis. We have developed a range of resources to help you in the online world. Digital communications make many things possible, such as teaching and performing, both live as a stream, or recorded and available to the public on demand.
In this digital environment music writers’ and publishers’ rights still remain in force. Here is some practical advice which considers some of the copyright implications involved in moving to an online teaching or performing environment.
Copyright: some background
The main copyright legislation in the UK (the Copyright, Designs & Patents Act 1988 – ‘the Act’) creates certain rights in relation to certain types of work, including musical literary works (which embrace lyrics & libretti), sound recordings, published editions, and performances.
The Act grants the person who owns the rights in these works the exclusive right to do certain things with the works they own, including copying the work, issuing copies to the public, renting or lending the work, performing, showing or playing the work in public, communicating the work to the public (e.g. by broadcasting/streaming it or making it available online for viewing on demand) and making an adaptation to the work or doing any of the foregoing relation to that adaptation.
This means that if you want to use any works in copyright, you will need a permission of some kind from the rights holder – or you must be able to show that you are covered by an ‘exception’ to copyright: (a provision in the Act which means that you do not require rightsholder permission to use a work).
Music and lyrics remain in copyright until seventy years after the death of the author of the work (or the death of the last of the authors in the case of joint works e.g. Lennon/McCartney works: these will be in copyright until 70 years after Sir Paul McCartney dies).
If you want to play music yourself in your lessons, or play extracts of recordings and display sheet music on screen, several rights in the Act will be involved, in relation to several different types of work.
What does this mean in practical terms and what should you do
If you give lessons via live streams on a one-to-one basis, using a closed, secure video-conferencing app such as Zoom, Skype, Microsoft Team, Google Hangouts and so, and you do not record or permit your pupils to record the lessons, it is unlikely that there would be any actionable infringement if you use copyright music or recordings. The usual rules around “fair dealing” under copyright law for the purposes of private study and research will apply. This means that reproduction of short extracts of music is permissible.
However, please be aware that if you or your pupil takes advantage of any facility to record the lesson, and then shares it online, this could potentially lead to copyright infringement. So we advise you to ask your pupils not to do this.
If you normally teach in a school under a contract of employment or a service contract with a school, and you are conducting lessons online, then your activity may be covered by the school’s SPML (School Printed Music Licence). Check this with the school.
Performances: live streams
If you perform music in copyright for a one-off, live streamed performance, you are creating ‘user-generated content’ (‘UGC’) which incorporates copyright works. In streaming your performance of a copyright work over the internet, you will be communicating the work to the public. You will need to be covered by a licence of some kind. Several of the big platforms, such as YouTube and Facebook/Instagram have blanket agreements with the music copyright collecting societies such as PRS for Music. There may also be agreements directly with music publishers. All these allow the repertoires covered by the publisher or collecting society on the platform.
However, it is not entirely straightforward, as not all copyright works will be covered, and permitted uses may differ. So you will need to check.
Performers also have the right to give consent to their performance being communicated to the public – before the performance happens.
Performances: on demand
If you make copyright material available for on demand viewing , e.g. via a performance which you video record and post to YouTube, you are using other exclusive rights: in this case the right to copy the music by recording it, and then synchronising the recording to the video.
Performers also have the right to consent to the performance being recorded, and for that recording to be made available to the public on demand.
What does this mean in practical terms and what should you do?
As far as copyright in musical works is concerned, the licensing framework is rather fragmented, and you will need to be careful to try and get permissions for your live streams, possibly from a variety of sources.
Please be aware that the licensing landscape in the online world is variable and ever-changing.
Generally speaking, all online platforms state that it is the user’s responsibility to clear any relevant copyrights. They also provide systems (some stricter than others) for the copyright owner to give notice that their rights have been infringed, which can result in the material you have posted being taken down or monetised by the copyright owner.
YouTube has a list of licensed works, which you can find under Music Policies. This list will also tell you which uses the music is licensed for.
If you cannot contact, or identify, the publisher, then please be aware that the online service’s copyright take-down policy could come into effect. YouTube, Facebook/Instagram and Twitter all operate various different take down policies, ranging from interrupting your stream with a notice of copyright infringement or advertisements, to blocking the stream or suspending your account.
ISM members should contact [email protected] with any queries.
ISM members have access to our legal team to help with questions on copyright, contracts and any other legal issues musicians come across.