Written Evidence – Incorporated Society of Musicians (UST0012)
This is a submission produced by Incorporated Society of Musicians (ISM) responding to the House of Lords EU International Agreements Sub-Committee inquiry into the ongoing UK-US trade negotiations. Although not included in the terms of reference, we have outlined specific sectoral issues in relation to musicians’ mobility. We also outline relevant provisions that would bring the most benefit for the music sector as part of a new full free trade agreement.
1. Summary
2. The ISM and the wider music sector
3. Impact of Brexit
4. Key issues affecting musicians travelling to the US to work
a. Visas
b. Role of the US labour unions
c. Common visa problems
d. Possible visa solution
e. Transportation of instruments and sound equipment: carnets
f. CITES and transportation of instruments
- Mobility is crucial to musicians’ ability to work and earn a living. Whilst musicians have typically toured to the EU more frequently as it has been relatively cheap and easy (due to freedom of movement and the free movement of goods), musicians also visit the US as part of their touring careers.
- UK musicians need to be able to carry out temporary paid engagements in the US without significant mobility restrictions, and without financial and administrative cost. In the forthcoming UK-US trade negotiations we would strongly advocate for a solution to alleviate the current difficulties with touring to the US.
- One possible solution is to create a new visa for shorter term visits, for example one that was valid for up to 90 days, that was easier and quicker to obtain. This could bear some resemblance to the UK’s Permitted Paid Engagement visa, but for 90 days.
2. The ISM and the wider music sector
About the ISM
- The Incorporated Society of Musicians (ISM) is the UK’s oldest professional representative body for musicians, set up in 1882 to promote the art of music and to protect the interests of all those working in the music sector.
- The ISM’s membership comprises approximately 10,000 members working in the music sector, including performers, composers, producers, conductors, agents, teachers, academics, advisers and sound technicians in the UK. We support our members with legal services and advice, insurances, professional development and guidance in their work as a musician.
The wider music sector
• The UK’s highly successful music industry is worth £5.2 billion each year to the UK economy. Music is integral to the UK’s national identity, soft power, and position on the world stage.
• According to DCMS data released on 6 February 2020, the creative industries contributed more than £111bn to the UK economy in 2018 - equivalent to £306 million every day or £13 million per hour. By way of comparison, in 2016 the fishing industry contributed £1.4 billion to the UK economy whilst the creative industries contributed £92 billion. This works out as approximately £10.5 million per hour for the creative industries, and only c.£160,000 per hour for the fishing industry.
- As the ISM’s recent report (May 2020) on the impact of Brexit has shown, musicians and the music profession rely on the EU market for a substantial part of their earnings.[1] Touring in the EU is vital to the livelihoods of UK musicians.
- According to our research, just over 50% of survey respondents have identified an impact on their professional work since the EU referendum in 2016 – 99% of whom said it was a negative impact.
- This is a slight increase from last year and reflects a year-on-year increase – 19% in 2016, 26% in 2017, 40% in 2018, just under 50% in 2019, just over 50% in 2020.
- 71% of respondents cited difficulty securing future bookings in EU/EEA countries (for reasons such as reluctance from EU promoters to offer work and musicians’ inability to confirm future work due to uncertainty caused by Brexit).
- More than half of survey respondents (56%) said they expected to be offered less work now that the UK has left the EU.
- 92% of respondents said they were concerned about their future ability to work in EU/EEA countries, of which 64% were ‘very concerned’ and 28% were ‘mildly concerned’
- Nearly a fifth of respondents (18%) claimed they had experienced a loss of earnings due to reduced or cancelled work in the EU/EEA as a result of Brexit, and a further 36% were not sure
- There has been a 14% increase in the number of respondents not earning in the EU/EEA since the referendum. Overall, respondents are earning less in the EU/EEA than they were before the referendum.
- 78% of respondents visit the EU/EEA at least once a year; 20% of respondents visit the EU/EEA more than 11 times per year.
- Nearly three quarters (73%) of respondents spend more than a week in the EU/EEA per year; roughly a third (32%) of respondents spend more than a month in the EU/EEA per year.
- 11% of respondents have less than a week’s notice between being offered work and taking it.
- Nearly two thirds (61%) of respondents reported that they were concerned about the transportation of instruments and equipment to the EU/EEA in the future.
- This section outlines some of the key challenges of the US market that musicians currently encounter and attempt to overcome when travelling to the US to work.
- Mobility is crucial to musicians’ ability to work and earn a living. Whilst musicians have typically toured to the EU more frequently as it has been relatively cheap and easy (due to freedom of movement and the free movement of goods), musicians also visit the US as part of their touring careers.
- Musicians visit the US to perform, teach, give masterclasses, take part in competitions, auditions, and showcases, make recordings and collaborate. ISM research (May 2020) showed that just over a third (34%) of musicians said that they travel to the USA to work.
- Musicians typically use O and P visas to visit the US to work, namely the O-1 visa (Individuals with Extraordinary Ability or Achievement) and the P-1 visa (A member of an Internationally recognized entertainment group, e.g. bands). However, these visas are very difficult to qualify for unless you have an extremely distinguished career and well-documented profile.
- For unpaid performances, competitions, and showcases, musicians often use the B-1 visa (Temporary Business visa). However, due to the scarcity of O and P visas given the high bar of eligibility, musicians do also abuse the Visa Waiver Program (ESTA) by saying they are a tourist and not declaring their paid gigs.
- The difficulties surrounding the US visa system for UK musicians (outlined in the next section) are not only a question of US immigration policy implemented by USCIS. The role of labour unions in the US was highly influential in the creation of the US immigration laws, because the unions wanted to protect the interests of US musicians and performing artists from foreign competition. This resonates with today’s political climate regarding President Trump’s ‘America First’ policy.
- Protecting the interests of US musicians is manifested in the visa process by making it extremely difficult for UK musicians to qualify for O-1 visas (which require ‘extraordinary ability’) and P-1 visas (which require ‘exceptional ability’). Petitions for O-1 visas require proof that an individual has something ‘irreplaceable’ to offer by an artist already residing in the US. This is a very high burden of proof for UK artists to meet, which in reality is only achieved by those with long-standing, renowned careers. Consequently, younger musicians and emerging artists are unable to perform in the US.
- Musicians typically face a range of problems when applying for visas to the US. Below is a summary of common problems, collated from ISM research.
- Cost of visas, especially if ‘fast-tracked’ or ‘premium’.
- The cost of the visa is not returned if the visa is denied, nor is there an appeals process. The embassy can also question the legitimacy of the petition and revoke it, thus denying the visa application.
- High administrative burden required to obtain petition in the US and visa at the embassy in the UK, usually requiring paid services of law firms or visa specialists – which escalates costs.
- Very high burden of proof to be eligible for O-1 (extraordinary, individual) and P-1 (exceptional, group) visas, which excludes the majority of musicians.
- Time taken to process visas – doesn’t allow for short-notice opportunities or last-minute replacements.
- Surrendering passports to the embassy restricts musicians from working in other countries in the meantime. Some musicians are able to obtain a second passport to alleviate this problem, though this incurs an additional cost. Surrendering passports may become more problematic depending on the outcome of negotiations with the EU regarding passports and visa requirements to work in the EU.
- Time spent at US Embassies waiting and queuing to be seen, without luggage or instruments, which is highly inconvenient especially when musicians combine a trip to the embassy in London with gigs in London.
- No flexibility in dates afforded by the visa – even though an O-1 visa can be valid for 3 years, it isn’t usually granted for that duration because musicians must account for the dates of each paid gig. This doesn’t allow for additional work or extra performance dates picked up while in the US. It also requires repeat visas which incurs extra cost.
- Requirement by USCIS for applicants to disclose social media handles and details is particularly problematic for emerging artists who rely on social media to grow their fan base and promote their material. These emerging artists (whose careers are not renowned enough to qualify for O-1 or P-1 visas) have been known to unlawfully use the ESTA visa waiver programme to gain access to the US to tour; the recent move from USCIS to disclose social media handles is an attempt to clamp down on this unlawful touring practice.
- Immigration officials at the US border can deny entry even when visas and documentation are legitimate. This susceptibility to the discretion of border officials is incredibly frustrating and can result in cancelled work and substantial loss of earnings.
- We have urged the Government not to adopt the US visa system as a model for temporary work when negotiating with the EU.
- UK musicians need to be able to carry out temporary paid engagements in the US without significant mobility restrictions, and without financial and administrative cost. In the forthcoming UK-US trade negotiations we would strongly advocate for a solution to alleviate the current difficulties with touring to the US.
- One possible solution is to create a new visa for shorter term visits, for example one that was valid for up to 90 days, that was easier and quicker to obtain. This could bear some resemblance to the UK’s Permitted Paid Engagement visa, but for 90 days. One major problem is the length of time it takes to get an O or P visa approved both in the US and at the embassy (the guidance states that these visas should be applied for 45 days in advance) unless musicians pay thousands of dollars to get it fast-tracked, which only a very small proportion of them can afford. Another major problem is the standard of career success and/or fame to which musicians must prove in order to be eligible for the O or P visas. This level of eligibility is unattainable for most musicians, particularly younger or emerging artists. Therefore a new type of visa that allows for emerging artists or early-stage artists to conduct a paid engagement (concert, festival, recording) should be introduced as a middle way between the O and P visas and the ESTA.
- Musicians travelling to the US with instruments, sound equipment, sets and gear typically use ATA carnets in order to clear customs. ATA carnets (‘carnets’) are international customs documents which allow for the temporary importing and exporting of instruments and equipment. When bands embark on international tours their equipment and all the necessary gear they ship out for touring must clear customs without any delays, import tax, or duty fees.
- Carnets are generally disliked by the music industry because they are expensive and rigidly enforced. In terms of cost, a 12 month carnet costs around £344 from the London Chamber of Commerce plus security/bond which is calculated as a proportion of the goods being taken. This can run into thousands of pounds for a large band or orchestra. In terms of enforcement, every single instrument and piece of kit must be listed on the carnet, and must return back to the UK to prove that nothing has been sold or altered. This can be as extreme as counting the number of drumsticks or guitar picks.
- There are often problems transporting instruments through US customs, due to damage during inspections and when musicians are forced to check their instruments into the hold. In February 2020, the US TSA irreparably damaged a famous Malian musician’s kora.[2]
- Another issue for musicians travelling to the US is the variable enforcement of CITES regulations. CITES is the Convention on International Trade in Endangered Species of Flora and Fauna, which affects the movement of endangered materials such as ivory, Brazilian rosewood and tortoiseshell – all of which are common components of musical instruments. Musicians are required to obtain Musical Instrument Certificates (MIC) from the Animal and Plant Health Agency (APHA), which sits within DEFRA. There is complicated paperwork associated with obtaining a MIC, and whilst MICs are currently free of charge, the ISM is aware that CITES permits are under review and MICs are expected to incur a charge from 2020.
- The implementation of CITES checks at the US border is frequently fraught with difficulty. US customs officials are generally not trained in the specificities of CITES, types of ivory or woods, and there have been instances of instruments being seized, impounded, and damaged.
- In June 2014, several members of the Budapest Festival Orchestra had their bows seized at Newark International Airport because they contained ivory, and officials could not determine which type of ivory it was. This is important because elephant ivory is banned, whereas mammoth ivory is legal. The lack of specialist knowledge is clear from the following quote:
“There was one person who brought two identical bows — and one of these bows was confiscated, and the other not,” Mr. Englert said. “It was the same bow maker, the same materials, the same year when the bows were made. So that was a bit surprising.”[3]
24 June 2020