I’m about to start writing the 733rd episode of The Ongoing History of New Music, the radio documentary I’ve hosted almost continuously since 1993. Each program requires anywhere from 10 to 14 hours to research, write, record, and produce. And after an episode goes to air on stations across North America, it disappears.
Vanishes. Evaporates. Archived to a network hard drive. And it stays gone until we’re able to run a repeat during the holidays or through the summer.
Can past episodes of The Ongoing History of New Music be accessed for on-demand listening? No. Can past episodes be made available as podcasts? Nope. Can anyone get caught up with the audio of older shows anywhere online? Uh-uh.
Why? Insurmountable legal issues surrounding the music embedded in the show.
It’s perfectly legal for music-based radio shows like mine to be broadcast over-the-air–the legal framework for that goes back to the 1920s–but the moment anyone wants to make the shows downloadable, podcast-able, or even stream-able, a whole new set of rules come into play. These rules are so onerous that we just can’t make it work. If we tried, we’d get sued to death. And the music industry isn’t interested in helping to change the situation.
This is complicated, but since I get dozens of emails on the subject every week, let me give it a try.
When it comes to over-the-air broadcasts, Canadian radio stations pay a series of performing rights fees for the privilege of playing music as part of their commercial business. The amount of money paid out depends on a station’s pre-tax revenues. The more money you make, the more it pays out on a percentage basis. Fees go-to composers, musicians, and various rights holders. It’s a built-in cost of doing business. Perfectly legit, fair, and cool. No issues.
But things change drastically when it comes to broadcasting music online.
A real-time stream of a station’s programming (i.e. a simulcast stream of the same programming that’s currently going out from the terrestrial transmitter) is grandfathered into the old performing rights deals; there are no extra charges or fees. This is why just about every radio station on the planet is able to offer a simulcast stream of their on-air programming.
Where it gets weird is with on-demand listening, podcasts, and downloads.
Spoken word isn’t an issue; it’s music. It’s tracking what songs are played when they’re played and how many people listened to each song when it was played. This is relatively easy when we’re dealing with a streaming music service like Rdio or Spotify; each song is a discrete file that can be tracked and reported individually.
However, a program like The Ongoing History of New Music is produced with songs embedded into much larger files. In the case of this show, it’s put together in four audio file chunks: three main segments and an epilogue. Music–anywhere from eight to a dozen songs per episode–is woven into the spoken word pieces in segments one, two, and three. Rob, my long-suffering producer, layers my voice-over music to create a pleasing flow of audio.
This is fine for over-the-air broadcasts because music rights are paid with blanket licenses. But no such licenses exists for non-simulcast online audio. Such licenses are not available from anyone or anything.
Here’s where the insanity begins.
To make the show stream-able online, we would have to UNproduce the entire show into its constituent parts: all the spoken word segments (a dozen or so) would each require a separate audio file as would each individual song (again 8-12 per show). That careful layering of audio would disappear.
We’d then have to load everything into a player that ran all the segments–up to two dozen of them–in exactly the right order every time. From that, we’d be able to draw data on which songs were heard when and by whom.
This is technically possible. A massive pain in the ass and very error-prone, but possible. We once tried something like this by loading up spoken word pieces that led into YouTube streams of the songs (thereby substituting legal streams for the songs we’d embedded), but loading a single program took the better part of a day and inevitably, the order of the files somehow got jumbled. So we gave up. Besides, it wasn’t a duct-tape-and-bubble-gum solution at best.
Ideally, we want to make the on-demand online show exactly the same as the over-the-air show. However, the law, as written, makes that pretty much impossible.
In order for us to play the full songs embedded within the show, we’d have to go to every single record label and rights holder for each individual song in every single show and ask permission. Then we’d have to individually negotiate how much of an advance they’d want against the play of each song. Then we’d have to pay this advance (in the tens of thousands of dollars to each rights holder). Each month, we’d have to comb through each individual stream of each individual song to see how many individual people listened to each song. And then we’d have to write cheques. A bunch of them.
Labour intensive? Insanely so. Expensive? Hideously. That’s why it’s just not possible to make full The Ongoing History of New Music shows available for streaming.
It gets even weirder when we start talking about podcasts and downloads because they involve the reproduction of music files. We’re not allowed to copy/duplicate copyrighted music for redistribution without compensating the rights holders. Again, there is no such thing as a podcast license or mechanism for this sort of thing. No flat fee, no rev-share, no nothing. No way for us to make a frictionless payment.
The only real option to make The Ongoing History of New Music episodes available is to edit out most of the music from each show. Legal opinions vary (we’re still working on it), but it seems that we can use 29 seconds of a song under a “fair use” proviso. And given that the show does have an educational component (at least I like to think it does), we should–should–be free from being on the hook for royalties, fees, and tracking requirements.
But like I said, opinions vary. We need more time to sort this out. And despite asking for help, no one from the industry seems to be able to give us (or want to give us) a straight answer.
But say we can make those edits. Will people listen to shows with the bare minimum of music? How long will it take to re-edit all these shows? Will it be worth the time and effort? If we manage to monetize this effort–and we’d have to to make it worthwhile–would anyone come back at us asking for money? I guess we won’t know until we try.
Meanwhile, The Ongoing History of New Music continues to be recorded and placed on torrents by persons unknown. I don’t get paid. My producer doesn’t get paid. The radio station doesn’t get paid. And none of the rights holders of any of the music contained within these shows gets paid. The result is copyright infringement, theft, piracy, and lots and lots and lots of money left on the table.
Super-stupid, right? Yeah, I thought so.
I’ve tried–really, really tried–to get key members of the industry to understand how crazy this situation is but no one seems interested in working towards a solution. None of them even seem to talk to each other. The only answer I get back is “Well, if you pay us you can do it.” Others say “Good question. Let me get back to you.” Then things go nowhere.
This is puzzling. You’d think that the recording industry would be happy to explore all potential new revenue streams. Hell, we’d be happy to pay for the privilege of using music this way, just not in the ways and the amounts current rules dictate. It’s a total non-starter. Forever.
And it’s not just my show. Every other music-based terrestrial radio show is in the same boat. Wouldn’t it be cool to be able to access a station’s weekly countdown program on demand? Can’t do it. How about full podcast of your favourite morning show? Can’t do it unless you edit out all the music. Then there’s that Saturday night mix show. Wouldn’t that be great for grooving to in the car on a long commute? Illegal.
There are tiny exceptions to the above rules (so-called podcast-friendly music, special licenses for certain apps, etc.), but when it comes to old-fashioned radio wanting to make its music programming available to audiences in ways they’ve come to expect in the age of the Internet? Forget it.
So what do the hardcore faithful do? Steal.
This is madness. It’s got to change.
If you want to learn more, read this article from Radio World called “So You Want to Podcast Legally? Good Luck!“
UPDATE: I have a meeting with the CMRRA scheduled for January 12, 2016. I’ll plead my case and see what they have to say. Wish me luck.