MusicTank paper shines a light on the Making Available Right ahead of London event

MusicTank has published a new insight paper that shines a spotlight on a little-understood segment of music copyright law, the Making Available Right. 

This right was initially created at a global level through the WIPO Performances and Phonograms Treaty (WPPT) and the intention was to account for digital works accessed by a user “at a time and a place chosen by them”. 

However, the right was only broadly defined and varied with each type of creative work. 

The paper (in broad strokes, for details you'll find the paper here) highlights that the right should include two parts, the Performer Approvals, which are rights assigned to a record label by the Featured Artist through their contract, and the Equitable Remuneration which are unassignable rights that should guarantee a remuneration to the performer or author. 

However, the Equitable Remuneration right is not applied to Making Available when it comes to some of the best-used streaming services in today’s digital consumption ecosystem, and most performers transfer their exclusive rights in the event of a recording contract - with no power to negotiate the payment of royalties for the exploitation of their Making Available right. 

This, according to the paper, is the main reason why both Featured Artists and Session Musicians are not seeing the level of increase in digital revenue enjoyed by - for example - record labels.

This means - according to Paul Pacific from the Featured Artists Coalition - that “the Making Available Right that was meant reward creators in the digital age has failed. Most artists simply do not have the negotiating power to get a good deal from dominant players in music.”

The paper makes four recommendations as to how the situation could be improved, but also calls for changes in the law including harmonisation at European level to ensure that every state knows how to implement and define the Making Available right.

The paper is being published ahead of a MusicTank event scheduled for November the 10th and entitled “Creators’ Rights In The Digital Landscape”. The event will be chaired by Keith Harris and will feature Fiona McGuan - author of the insight paper - as well as Benoit Machuel (FIM), Alexander Ross (Wiggin LLP) and Horace Trubridge (Musicians’ Union). 

 

(Andrea Leonelli)