Written evidence submitted by Dr Sasha Valeri Millwood



I am a professional musician and musicologist active in Western classical music, both as a practitioner and as an academic researcher. My professional activities as a musician include performing, composing, arranging, and the creation of bespoke editions of existing musical works. The outputs from each of the aforementioned activities attract one or more types of copyright protection; however, in my experience, the currently prevailing structures of online streaming have the propensity to inhibit the capacity of classical musicians to make successful claims for equitable royalties. Much of the public discourse on the inequitable nature of online streaming has focussed on pop music, and has thus overlooked further inequities that arise in Western classical music, or inequities that are exacerbated by the particularities of Western classical music. In particular, I wish to draw attention to the following issues:

1. inaccurate and incomplete metadata disenfranchising rightsholders; and

2. on many streaming platforms, the near impossibility of rectifying errors and omissions in metadata, especially in respect of a recording that has not been promulgated as a "commercial album".

As a result of these issues, many musicians find themselves receiving no royalties whatsoever in respect of a given recording or track.

In the praxis of Western classical music, there is typically a separation between the role of composer and performer, including in respect of music by living composers (although it is true that many living composers cultivate a close interest in and a modicum of involvement with performances of their works). Ontologically, the purview of and relationship between these two roles are the subject of considerable debate and negotiation (my own academic research has explored this issue in some detail). Practically, there are many musical activities, such as improvisation, that defy attempts to separate composing from performing (and rightly so). Nonetheless, a separation does exist for the purposes of intellectual-property rights and of according recognition to individuals who have made a significant and distinctive creative input (again, rightly so). Whilst it may not be possible to determine a universal and unassailable definition for labels such as "composer" and "performer", there is little doubt that such labels are useful and of particular relevance to most facets of the Western classical music tradition.

Consequently, a typical recording of Western classical music is likely to have a far larger gamut of rightsholders than a typical recording of pop music. Depending on the precise nature of the musical work, these rightsholders may include: individual performers (including pre-recorded performers in respect of works that involve interaction with a pre-recorded tape); ensembles (which may or may not have a stable corporate identity); the composer; one or more arrangers (if the work has been arranged); one or more publishers (if the work has been arranged, it is possible that the publisher of the 'original' version may differ from the publisher of the arrangement); the author(s) of any literary text that is sung or recited; the persons involved in typesetting or editing the sheet music (under UK copyright law, a "typographical arrangement" enjoys some protection even if the composer is out of copyright and even in the absence of any significant editorial originality); sound engineers; and videographers (where the recording is in video form).

Typically, the management of many of the rights involved will have been assigned to various collecting societies, such as the Performing Right Society (which includes composers, arrangers, literary authors, and typesetters/editors in its remit). However, many rightsholders are not effectively credited, or, where they are, the credit does not translate to accurate assignment of royalties by the streaming platforms, because said platforms have few or no mechanisms for metadata of this type to be recorded or updated. Another common issue in Western classical music is that some rightsholders may be involved in only a small part of an "album"-length recording (for example, if the "album" constitutes a concert, and a given performer or composer is associated with only one short piece within the concert), and so may be uncredited.

A seminal example of this problem can be found in Youtube. Although the platform has licences with various collecting societies (including the Performing Right Society) to cover many categories of rights, it does not provide any manual mechanism for registering the rightsholders correctly. Instead, it relies on an automated "ContentID" system to identify rightsholders by checking for correspondence between the uploaded recording and existing "commercial albums". Evidently, this approach is completely unfit for purpose in respect of music recordings and streams that have not been released as a "commercial album". Worse, the "ContentID" system is in the habit of misattributing a recording, even where the title or description of the video makes the identities of some rightsholders abundantly clear. To make matters worse, there have been numerous complaints by performers of their performances being misattributed to another performer who had played the same work by the same composer (or even, in some cases, a different work or different composer). This has resulted in some musicians being accused of copyright infrungement, whilst allegedly infringed rightsholders (as identified by the automated "ContentID" system) earn royalties on a recording to which they made no contribution. This problem has been documented and discussed widely among classical musicians, notably at https://slippedisc.com/2018/10/anyone-else-getting-hassled-on-youtube-and-why-is-it-always-sony/ (the comments-thread mentions further examples), and yet there is no sign of improvement.

Although I have focussed on Youtube above, similar issues arise with many other major platforms, whilst some other platforms (such as Vimeo) avoid the issue by demanding that content creators own all rights in their recording or video, and waive any right to receive royalties. Given the large number of rightsholders associated with many recordings of Western classical music, this results in either the exclusion of a large part of our musical traditions or the widespread infringement of rights in the hope that they are not enforced. Either alternative is manifestly an unacceptable state of affairs.

Many of the shortcomings in identifying rightsholders accurately may have been more forgivable if only there had been a straightforward means of rectifying errors and omissions in the metadata. Unfortunately, most platforms fail to provide any mechanism for creators to give accurate metadata at the time of upload. Moreover, most platforms demand that, in order to challenge these metadata, one must be (or represent) the exclusive rightsholder oneself. Given that, in Western classical music, there is very rarely only one rightsholder implicated, this is an impossible demand. Moreover, it is unfeasible even for a major agency or publisher to comb (other than by exceedingly unreliable automated means) all of the streaming platforms for content in which one of their artists posesses rights. For the musician who is not represented by an agency or publisher, the onus falls solely upon him/her to press these claims, even if he/she is a member of a collecting society such as the Performing Right Society. There is no mechanism for a "concerned citizen" to help streaming platforms identify and rectify rightsholders -- given the popularity of crowdsourced online repositories such as the Petrucci Music Library ( https://IMSLP.org/ ) and the LiederNet Archive ( https://www.lieder.net/ ), it is reasonable to suppose that there will be a substantial corpus of competent third parties willing to assist streaming platforms in this way, especially those who are fans of a given artist.

Ultimately, we cannot rely on powerful streaming platforms, many of which have quasi-monopoly status, to do the right thing when it does not further their own financial interests. Many platforms actually stand to benefit from royalties remaining unallocated or under-allocated, since that allows them to retain a larger share of their subscription and/or advertising revenue attributable to the recording in question. It is vital that such platforms are placed under a legal obligation to accept and review notifications that rectify errors and omissions in rightsholder metadata, irrespective of whether the notifier is a rightsholder. Failure to compel this will exacerbate the divide between a small number of big and powerful companies and the rest of the music profession (especially musicians without representation). Given the growing expectation among the general public that a "serious" professional musician ought to have recordings available on streaming platforms, many musicians are confronted with a choice between making content available for free (because the structure of the major streaming platforms inhibits or prevents the correct allocation of royalties) or languishing in obscurity (because they do not make recordings available).

Dr Sasha Valeri Millwood, MA (Cantab.) MMus (GSMD) PhD (Glas.)