No Gaps or Awkward Silences — Image: Maurice Powell 2020

FAIR PLAY — A Response to the ACCC Determination to Reauthorise APRA

JULY 2020

The ACCC has re-authorised the monopoly of APRA and by extension, OneMusic Australia. Until 2024 APRA will maintain the status quo as the exclusive power broker between Australian small businesses and music rights holders.

Over 18 months the publicly funded ACCC received a total of 76 submissions of which 88% were critical of APRA and OneMusic. Queensland’s Nightlife Music alone invested over half a million $ to fight for music industry reform to benefit Australian artists and businesses.

Urgent reform could have expedited crucial growth of Australian innovation and technology and returned increased revenue to Australian artists when their music is played in public places.

The 48 Conditions of Reauthorisation (Attachment A) focus on long overdue demands for transparency of reporting, licence fee methodology and distribution arrangements of a half a billion dollar copyright collection society.

· The ACCC Determination DOES NOT include any mechanisms for APRA to accurately collect, measure or report on the % revenue distributed based on real play data.

· There is NO incentive for APRA to use real play data.

· There is NO incentive for APRA to report on Australian music and songs being played.

· There is NO requirement to reform practices to benefit the public good, for Australian artists to be played more and paid accurately from the revenue raised from Australian licensees.

· The ACCC Determination DOES NOT expose APRAs mandate to their reciprocal rights deals to overseas rights holders — not Australian artists and publishers.

The question remains.

How can APRA be made accountable to deliver, or the ACCC enforce, the conditions of authorisation ?

Although increased transparency and reporting will allow the Australian music industry to become aware of the shuffling of revenue to artists — with NO ENFORCEABLE KPIS it will once again be beholden upon the (now very COVID-broke and stressed) music industry, artist members, licensees and peak bodies to make APRA AMCOS accountable over the next 4 years.

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The Status Quo continues for the OneMusic ‘copying’ licence

With no incentives or requirements for APRA to significantly modify their misleading and anti-competitive “copying licence” the ACCC has sanctioned the stifling of innovation, data solutions and Australian owned world-leading business models.

The ACCC Final Determination report acknowledges the “potential detriment from APRA’s licensing of businesses that use ‘consumer’ music services” and the ambiguity of the OneMusic ‘copying’ licence. (pp 50–53)

At 4.147 the ACCC reinforces the truth that “the licence APRA provides to the personal use only digital streaming services does not provide for the streaming service to supply music to commercial uses.”

At 4.149 the ACCC has obliquely manoeuvred the current terminology of ‘copying licence’ to “APRA levies an additional ‘digital copy/delivery charge’ on some businesses.”

This section presumably quotes APRA and their justification for their licensing of personal digital music streaming services eg Spotify and Apple Music in Australian business premises:

“the additional cover you need from us if for example you have copied a CD onto a hard drive or made a copy of a digital download. You will also need this additional cover if you are using an existing recording for a purpose for which it has never been licensed for such as in the case of personal digital music streaming services like Spotify or Apple Music. “ 108 (NB the footnote reference is absent from the report)

At 4.154 APRA argued to the ACCC that if they did refuse to licence personal digital streaming services that they would then have to pursue the business for infringement and that “those businesses may well approach the Copyright Tribunal on the basis that APRA was refusing to grant them licenses.”

Even in a pre-COVID business environment, would small businesses actually take APRA to the Copyright Tribunal to use Spotify or Apple Music in their bar or café? Or would they first prefer to be informed by APRA of the 31 licenced commercial digital music streaming services that exist and refer them to best practice licensees here.

APRA, through the ACCC, argue that it is simply easier for them to licence personal streaming for use in business rather than expect Spotify, Apple Music or YouTube to police the practice. That by NOT licencing them it would incentivise piracy whilst providing no opportunity for revenue for their members.

The ACCC does make a concession at 4.161 that arguably “charging a fee to businesses specifically tied to their use of personal digital music streaming services could potentially be interpreted by businesses as legitimising the use of such services.” (p.52)

There is one Condition of Authorisation for APRA with regard to this ambiguous practice:

“C1.8 Any time a person using the ‘Get a Quote’ function on the OneMusic website answers yes to a question about the use of a digital music service or device to play music in their business APRA must ensure that the following statement is prominently displayed before the next question appears:

Even with our licence, the use of digital music streaming services by you in your business may^ be in breach of the terms and conditions of your end user agreement with that service. You should check with your service provider.”

Without the ACCC requiring the inclusion of the keywords “personal and/or consumer” in the ‘prominent statement’ the end user will be sent down an application process that is confusing and is issued a non-compliant licence to play Spotify or Apple Music in their business — even when they are in fact using a legitimate commerical music streaming supplier!

^ “may.” No. There is NO circumstances where a consumer service is legimately used in public performance.

Edit: 29/7/20 For another great piece on this subject and the implications of the ACCC Determination on when a business owner/licencee takes out this licence they could in fact be playing tracks that are covered under APRA’s catalogue but NOT under the ARIA/PPCA’s and as a result are more than likely infringing copyright as a result of this licence >>> The Elephant in the Room : Part 2.

So, as at July 2020 APRA have once again succeeded in reinforcing the status quo:

· let’s excuse piracy by licensing Australian businesses for consumer/personal digital streaming services

· a continuation of anti-competitive behaviour with commercial music streaming services

· doubling down on the misleading “get a quote” process for business licensees

All to raise desperately needed revenue for rights holders and Australian artists. Revenue raising with no incentive for APRA to collect available play data from available sources. Revenue with no KPI or metric to require APRA to distribute public performance royalties accurately based on real play data.

Could there be a campaign to disguise the ambiguity of a ‘mechanical copyright’ as applied to digital streaming not being a ‘copy’ ? As outlined in FAIR PLAY Part One here.

Would it be unsurprising that APRA have been afforded the privilege to examine the ACCC Determination report and agree to proposed conditions before being made public? The power and influence of APRA is outlined in FAIR PLAY Part Two here.

Nightlife Music alone estimate they have spent approximately $500,000 in costs fighting APRA on this issue plus $2–3M over 5 years on R&D developing a solution to benefit rights holders and lost potential revenue in the tens of millions of dollars per annum.

Why stop speaking truth to power now.

Like many small businesses Nightlife Music is fighting for its survival through COVID. As a generator of jobs and revenue for Australian rights holders — why is it so hard for APRA to collaborate with the background music providers and agree on the solution for the ultimate benefit to the bank accounts of Australian rights holders?

Leanne de Souza is a Non-Executive Director of Nightlife Music, (her husband Tim de Souza, is a co-founder and programmer), a trustee of the Queensland Performing Arts Trust (QPAC) and co-founder of the Rock and Roll Writers Festival.

Her recent work included the role of Curatorial Advisor (Music) for the Museum of Brisbane’sHigh Rotation 30 Years of Brisbane Music” exhibition, and as a researcher for the Brisbane City Council30 Years of Riverstage.”

Leanne was the 14th most influential person in the music industry for 2019. (Source: The Music, 7 March 2019), a life-member of Q Music, a Legacy Member donor to the Association of Artist Managers and an advocate for gender equity, cultural diversity and inclusion in the Australian music industry.

Twitter: @rebelbuzz

I pay my respects and acknowledge the Turrbal and Jagera/Yugera Peoples as the Traditional Owners of the lands where I work, study and live.

Governance | Leadership | Advocacy | Strategy | Research | Undergraduate at UQ | music, books, conversation, alchemy, justice and champagne