As distribution of music (and movies and television shows including music) go increasingly digital and becoming more and more widespread, composers and songwriters are getting less money, not more. Is this because of wholesale piracy?

No. It’s actually far more interesting than that.

There are essentially two kinds of fees associated with music licensing. There’s what’s called a ‘mechanical’ fee, and a ‘performance’ fee (actually there’s a ‘synchronization’ fee for including the music at all, but that’s not really important here). Don’t forget that music is a copyrighted work, like any other.

The mechanical fee is basic music licensing. A publisher wants to include a track on a CD, or a production company wants to include a song in a movie or television show. The mechanical fee goes to the composer and songwriter to cover the distribution of the work that includes the song. Generally, though, there’s not a lot of money in mechanical fees (and indeed, they may waive those fees). The bulk of the composer/songwriter’s income from their work comes from the performance fees.

Every time the TV show airs, or the movie is shown, or a music track is played outside of someone’s personal, physical residence (say, on the radio, in a hall, or in a coffee-shop), or the song/music is performed on stage, or is played by a DJ (online or offline),or played as music-on-hold, it’s a ‘performance’, and a small performance fee is then owed to the composer/songwriter.

Performance fees are generally not very large. For an audience of 100 people or less you’re generally looking at only a dollar or two in performance fees per day. That means a number of performance fees need to be paid before the composer/songwriter can afford a hot-dog and a cup of coffee.

These artists, are getting increasingly less money from performance fees, however. Cheques for less than 5 cents are not unheard-of.

So, with the Web delivering more music, more movies and more television shows to more people, and the publishers growing their businesses and their profits, why aren’t the artists making more?

Because they’re not getting performance fees.

Think about this – you watch a TV show on television, whether that’s cable or satellite or whatever. There’s a performance fee, because that’s being broadcast to the public. Grab it from iTunes, however, and there’s not. It’s not a performance, because it’s just you and the music.

The artists who worked on the background music may be getting nothing at all, in fact, not even mechanical fees for that, but thousands or hundreds of thousands of people are enjoying their work.

Why aren't you reading more Schlock Mercenary? The question is, should the artist be getting paid the equivalent of a performance fee for private viewing, or should that be considered getting paid twice for the same thing?

There are two schools of thought here.

There’s no legislative requirements for the law to prop up an industry that is losing money because of changing market conditions, culture or technology. Many judges have argued that there is no moral requirement to do so either.

On the other hand, while the ‘starving artist’ might be something of a cliché, why should an artist make more work, if they’re not getting paid for the work that they’ve already done?

Copyright gives an artist the right to control when and how their work is distributed and duplicated (for a limited period, after which those rights are subject to mandatory expiration, and the work becomes public domain), but does not confer any innate rights or requirements to profit from it – that’s rather a separate thing.

In the case of music licensing, however, a legal framework controls mechanical and performance fees, but has failed to adapt to changing conditions, leaving artists getting less and less, as their work becomes increasingly widely (and legally) distributed and enjoyed.

Right now, it’s the National Music Publisher’s Association versus the Digital Media Association. Both trade-groups are interested in this issue. The former, to adapt the model to get their artists paid, and the latter to block this effort, arguing that the artists don’t need to be paid for twice for the one thing.

At the moment, there’s something of an impasse, but it’s certain that something needs to change somewhere. Either new fees need to be added or the entire licensing structure needs to change. Well, it’s that or maybe all those artists will have to go into intellectual property law as a career instead.

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