p2pnet special: Canadian indie musician and label owner Neil Leyton was a panelist at the Trans Atlantic Comsumer Dialogue (TACD) conference on New Relationships Between Creative Communities and Consumers, held in Paris, France, on June 19-20.

The idea was to bring people together to talk about relationships between creators and users, and identify common interests and new opportunities to collaborate.

Discussions explored new and existing social and business models for the intermediary between the creative person and the consumer and in particular, the meeting looked at models and relationships, recognizing the creative community’s need to earn a living, the interest of the public in gaining affordable access to works, and the interests of both parties in supporting an environment for creativity and innovation.

Leyton’s group was moderated by Anna Fielder of the National Consumer Council, and included:

• Christian Paul, Deputy of the French Parliament
• Jenny Toomey, The Future of Music Coalition
• Peter Jenner, International Music Managers Forum
• Aziz Ridouan, Audionautes

Here’s Neil’s first-hand report of the conference for p2pnet. >>>>>>>>>>>>>>>>>>>>>>>>

Trans Atlantic Consumer Dialogue conference
By Neil Leyton

The TACD is a forum of US & EU consumers’ organisations which develops and agrees to joint consumer policy recommendations for the US and European governments.

As one of the two directors of Fading Ways Music, a Canadian-started indie label, I was invited to speak on the Recorded Music panel and here are a few thoughts on the processes, and the challenges, facing independent musicians in the music industry of the 21st digital century.

From an artist perspective, it’s very interesting, first of all, to note that, unlike the so-called ‘artist groups’ lobbying our governments so heavily for stronger copyright, but which are in fact using artists’ name to facilitate the protection of the business models of the major labels and major publishers, multinational corporations, et al, in the music biz, the TACD actually invited real artists to the discussion table.

As a member of the Canadian music industry, not once have I been invited to such an open discussion within my own community, having instead to struggle to get my dissenting voice heard within a monopolized community.

Every self-aware indie artist knows the IFPI, RIAA, CRIA, BPI, and even most rights societies these days serve only the interests of the industry and not the interests of real artists. Score 1:0 for the consumers’ groups, then!

I won’t, however, pre-suppose you believe the tired old portrayal of the consumer as ‘pirate’. That’s pure industry spin and while it makes a catchy soundbyte for mass media outlets friendly to the protectionist agenda, in reality, consumers and fans of today aren’t doing anything new that we haven’t been freely doing for generations past.

Sharing our culture.

Yes, we have new digital tools nowadays. But that’s no valid reason for changing the laws, as the WIPO copyright treaties have done, of the digital realm compared to the old analogue one. Copyright was meant to stop one publisher from copying and selling another’s commercial work, NOT to stop the public from spreading and performing the work non-commercially.

We live in an age of distortions and abstractions where quick and easy ‘facts’, manipulated figures and statistics devoid of all reality – sometimes, made up by PR companies! - serve the interests of the multinationals.

The public always has, and always will, taken whatever opportunities are available to access culture. The challenge to the industry, then, lies not in the criminilization of ever-increasing numbers of fans, but in the monetization of the new digital reality in ways that don’t harm the interests of artists and citizens.

My two days in Paris at the TACD workshop were an excellent example of how some of these goals can be achieved, and, when the proposed treaty is drafted, it will be an articulate, sane counterpoint to the corporate music agenda that’s wearing thin, even from the stand-point of politicians in France and Sweden, to name just two countries who are considering a reversal of course in the Protection vs Access debate.

The fact so many consumer groups have come together, realizing the need to bring artists on board rather than antagonize them, as the forces running the current music industry are doing, threatens to tip the scales of the debate. The recent rise of musicians’ voices against the industry lawsuits, the CMCC group that has been created in Canada, for example, is a clear indication that the times they are indeed a-changin’.

The people at the top of present music industry grew rich and fat by largely appropriating public domain oral musical traditions (ask Dylan), establishing strands of income under an artificially divided copyright which remunerates ‘master’ recordings separately from music ‘publishing’, and arrogantly presuming that a song actually ‘belongs’ to someone.

However, the music industry of tomorrow promises to be a far more equitable place where more and more artists can earn a living while the number of super-stars dwindles.

In fact, one could argue that already, in today’s world, we see fewer and fewer big stars. I don’t think we’ll ever see another Elvis Presley, or group such as The Beatles.

Those who refuse to accept these radically different economic times we live in should pull their head out of the sand. I believe there’s an argument to be made for a split between the present biz, which I usually refer to as the “entertainment” business, and the real music industry, which is already largely made up of smaller, independent companies whose owners are artistically rather than merely profit driven. And this is an ethical as well as practical split, as my chart below indicates:

ENTERTAINMENT INDUSTRY vs the real MUSIC INDUSTRY

Entertainment Industry	The real music industry
Super-Star system	Artist Driven
Mega sales	Critical acclaim & some sales
High expenditure	Low Expenditure
Difficult to recoup	Easier to recoup
Harder to sustain careers	Life-long sustainable careers
Market driven	Fan-oriented
Protectionist	Encourages sharing
Top down	Bottom up
No artist creative or biz control	Artists-first approach
Exploitative	50/50

What this means, and what formed the essence of my presentation in Paris, is:

The public doesn’t always need to be on the defensive when it comes to dealing with the industry’s legal threats and DMCA-style extortion. The TACD’s Paris Accord, when fully drafted, can instead point the way to the creation of a DRM-free new music industry that’ll improve the cultural lives of both artist-songwriters and the general public, who are in turn are also increasingly able to create, rather than be limited to the role of unthinking consumer.

One problem I illustrated during my panel is the problem of the present rights societies, for example.

In Canada, SOCAN distribution of the private copy levy is a typical example of how the present model of the entertainment industry feeds the rich and starves the poor. Money is distributed according to two criteria: Soundscan sales, and commercial radio airplay.

This means independent artists, selling their records by the thousands through small indie shops that don’t Soundscan (log barcodes and pay a yearly fee to Soundscan Corp for the privilege of communicating those sales to them) or off the stage, on tour, fly completely under the industry radar, as we’ve been doing for years.

Secondly, most indie artists are played on community, not commercial, radio - centralized play-lists Clear Channel style, and the traditional practice of payola, making it inaccessable to indies. In practice, that means every time our fans buy blank CDRs to burn the mp3s we want to offer them via Creative Commons licenses - and there are thousands - the bigger publishers get a cheque.

We, however, get nothing.

But enough is enough. The time has come for a new artist-based global rights society, a non-exclusive, non-protectionist, transparent body that’s artist- and not publisher-controlled. It’ll assist in the commercial collection of fees due to artist-owned works whose copyright hasn’t been artificially splintered into four streams.

While managers with years of experience might advocate the changing of the existing rights societies (Peter Jenner, International Music Managers’ Forum, and manager of Billy Bragg), from within, remaining optimistic about their role, I believe there are plenty of artists who’d be ready to withdraw from the system altogether, pointing out to governments the anti-trust monopoly nature of these organisations in the process.

Existing Pro’s	New Artist Pro
Music publisher-controlled	Artist/composer controlled
Analogue era playlisting	New net-based sampling system
Tends to compensate mega-hits	Balanced distribution of royalties
Incompatible with new models	CC compatible
Controls copyrights	Administers collections of rights
Exclusive	Non-exclusive

The TACD workshop opened with the “setting the stage” panel, where Mr. Cervera Navas from the European Commission called for the need for more data rather than unsubstantiated arguments (such as those I’m making, perhaps).

Peter Jenner pointed out that not everything relevant to the argument can be measured; and accused the publishers / industry of having hijacked the debate. That much was obvious in the industry jargon that littered WIPO’s Jorgen Blomqvist’s opening. While claiming to be entirely open to new business models, he proceeded to describe Creative Commons as “giving away” rights - a common music industry misconception many industry insiders (for example David Ferguson’s Music Week UK articles published last year) have worked hard to perpetuate in a sad attempt to scare artists away from even considering CC.

Blomqvist went on to actually suggest publishers should also be involved in the discussions, talking of “balance” whilst perverting the very essence of the word.

Fortunately, he wasn’t seen much for the rest of the two-day conference; and Cervera Navas’ repeated promise of giving out his e-mail address so participants could share their views with him remained empty.

He did, though, draw a few laughs when he also asked for proof that DRM can be damaging.

Rootkits, anyone?

For my part, I spoke alongside Peter Jenner, Jenny Toomey from the Future of Music Coalition, Aziz Ridouan from the French Association des Audionautes, who proposed a global license for the digital domain; and French Parliament Deputy Christian Paul, who’s also been working towards the legalization of p2p in France with the establishment of such a global license.

Whether the license would be compulsory or opt-in was up for discussion, but everyone who was left in the room by that point pretty much agreed any such scenario would be preferable to the criminilization of music fans of all ages - and many sons and daughters of politicians, lawyers, and music biz execs.

The madness can only go so far; and the TACD workshop went a long way towards the restoration of sanity to the copyright debate.

The speakers on my panel were asked five questions. I reproduce them below along with my answers:

1) From the point of view of creative persons and the public that enjoys listening to recorded music, how best to support both the livelihoods of songwriters and performers of music, and access to works?

• The livelihoods of songwriters and performers of music should be improved along with access to works; the two are NOT mutually exclusive;
• For up-and-coming artists, access to works in the form of free downloads is very often key to much needed exposure to new audiences and fans;
• For established artists, there’s no need anymore for anything to go out of print - if a work isn’t continuously exploited commercially by the original company that owns the rights to market (masters and/or copyright), that work should automatically become available both to the original artist and any new company that wants to market it; on a simple 50/50 split with original artists and composers;
• If a record company or music publisher is not exploiting a work that is bound to them by contract, there should be legislation forcing the automatic termination of such useless contracts so that the work can once again be made available to the public - this in turn would earn many artists much needed additional income.

2) What are the most interesting new economic models for doing so?

Fading Ways has been experimenting with Creative Commons as a tool for viral marketing via our street teams of fans;

• CC Non-Commercial licences, that allow private copying and/or not-for-profit remixes, are an interesting proposition;
• Other artist-to-fan direct marketing, like support packages in exchange for exclusive content, are excellent ways to cement relationships between artists and their fans;
• Playlouder DSP merits mentioning as a “walled-garden” legal p2p system that would track exchanges between users and monetize the artists accordingly; majors yet to sign on;

3) Should songwriters and performers be protected from unfair contracts by publishers and producers?

• Yes, of course.
• Legal assistance in the music biz is not enough; when we have entertainment lawyers being taught at law school by the head of the CRIA their education is bound to be incomplete, skewed, and generally deficient.
• A lawyer at a UK conference I spoke at last year actually told me about how he’d convinced a client (an artist) to sell his publishing after he’d been instructed that that was the last thing he wanted…(after criticizing CC for doing a poor job of explaining copyright to artists), as that was the only way they would get the deal signed;
• Contracts should keep copyrights squarely in the hands of the creators; recording artists should always control their own masters.
• Finally, governments should take steps to limit the powers that some rights societies (collection societies) gain through their extremely broad writer membership agreements - with some societies, when you join as a writer, you are actually assigning all your copyrights to them including your inherent right to non-commercial distribution; there have been situations where artists have had to pay the society for using their own works!

4) Can collection societies be transformed?

• Wave of UK music biz opposition to new business models like CC was not encouraging; many “respectable” execs ie, David Ferguson (British Academy of Composers) printed articles bordering on slander: misinformative, misleading and clearly ruled by an obstinate fear of the unknown / fear of change;
• Existing PROs tend to favour the already-established writers rather than independents; ie. SOCAN’s distribution of the Canadian blank media levy according to commercial airplay and soundscan sales completely ignore college radio & indie CD sales, not to mention downloads;
• A TEOSTO Executive I met in Finland last year was very clear that in order for these attitudes to change (ie. Acceptance of CC model) they can only be transformed from the inside, via each Board of Directors and members demanding change from the inside;
• Alternatively, a new PRO for self-published writer-artists is another possibility for the establishing of a more level playing field for independents.

5) Do we need new competitive intermediaries?

• Not unless they’re strictly controlled by artists themselves; such as under a new artist-run PRO
• Fading Ways challenges all new indie labels to adhere to an ethical 50/50 split with their artists, allowing artists full freedom of motion both creatively and business-wise;
• Other new artist and consumer-centered initiatives are welcomed by the artist community.
• New partnerships should be fostered between artists and consumers groups, such as the BEUC campaign from last October, to advance not only consumers’ lobbying, but also artists’ concerns when facing a self-serving, vested-interest music industry which declares, “our way or the highway”;
• Competition is the great leveller of a truly open market. Perhaps that’s why the rights societies want to remain monopolies;
• On an appropriate price for downloads, the (questionable?) practice of the Russia’s AllofMP3.com (whether legal or not under Russian law regardless of the BPI’s whimpering lawsuit) is a good example of how different markets can, and should, price music according to the public’s purchase power.
• How do you beat so-called “piracy” in India and China? Sell proper product at the same price.

For additional info: http://www.cptech.org/a2k/pa/

Neil Leyton - Fading Ways Music
[Leyton founded Fading Ways Music in Toronto in 1999. He’s released two critically acclaimed solo records, “Secret Avenue” and “Midnight Sun”, with his third, “The Betrayal of the Self”, due this September. Last year he started Fading Ways UK with business partner Ashlyn Eaton, and the labels can be found at www.fadingwaysmusic.com / www.fadingways.co.uk. The Fading Ways mail-order service is at www.fwmusicstore.co.uk.]

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