, , Published 09/30/2019

By Alan Cross

Since its debut on January 25, 2017, my Ongoing History of New Music podcasts has been downloaded 5.9 million times by people in virtually every country on the planet, save French Guyana, Western Sahara, Niger, Chad, South Sudan, Eritrea, the Republic of the Congo, and North Korea. That’s 188 out of 195 countries.

Not bad for a documentary program that goes deep into the music, despite not being able to play the songs – copyrighted commercial music – about which I talk. It’s a music documentary without the music because, well, them’s the rules.

When an artist signs a deal with a record label, the label is granted the sole and exclusive right to distribute that artist’s music. When a podcaster includes a song in a production, the podcaster becomes a de facto distributor of a digital file of that song. That breaches the contractual rights owned by the label, opening the podcaster to charges of unauthorized duplication of a copyrighted work. Piracy, in other words.

The most we can do without getting into any kind of trouble is offering short clips to illustrate points made by the narrative. But even this is officially verboten. (More on that risk in a moment.)

There’s no licensing mechanism by which podcasters can legally include this sort of music for distribution in their programs. No matter how much money you want to throw at the situation, there’s no one that’s empowered to help you.

You may have done some research that says it’s permissible to use commercial music in podcasts, even if it’s just a 15-second clip. This is not true. There is no minimum duration that makes using the clip of a song okay.

Some people will justify their use music based on the concept of “fair use.” But if you dig into the Berne Convention, you’ll see that the applicable copyright law is in the country where the podcast is available and consumed, not where it’s hosted.

For example, the U.S. has fair use in its copyright law. But that only applies to the United States. Canada, the U.K., and Australia do not (we have something called “fair dealing,” by the way). Many countries haven’t even got that far. And even then, “fair use” (or its local equivalent) is something you’d only use if you’re hauled into court, which means you’ve already spent a gusher’s worth of money.

Does it matter that your podcast doesn’t make money? Nope. Irrelevant. Move on.

“What if,” you say, “I have the permission of the artist to use their music?” That’s fine, but the artist is just part of the chain. You still need the okay from the label, the publisher, and the composers (if different from the artist).

Chances are, too, that the artist has signed up with a performing rights organization. You’ll need permission from them, too. Currently, anybody can license the performing rights for music in their podcast by getting a Tariff 22F license from SOCAN, but that’s only for the performing rights, and only in Canada. They’d still need to license the master recording, and the reproduction rights.

Confusing matters are that some broadcasters – the BBC and U.K. commercial broadcasters leap to mind – have spent millions on music licensing, as part of all these do with music. About a decade ago, they negotiated a 30-second limit for songs within podcasts heard within the U.K. only. Everything else is supposed to be geo-blocked to avoid copyright infringement in non-U.K. territories.

Some people have tried to skirt the rules by placing their podcasts on YouTube. Nice try, but then we’re talking about a stream, not a podcast, so different rules apply. And even then, the chances of YouTube’s ID algorithms flagging the podcast for a copyright violation on music are pretty good. Spotify, which had gone deep with podcasts, also appears to have some copyright bots searching for similar violations, and have kicked off a few podcasters.

To be clear, there’s been no takedown of a major podcast for running afoul of these rules. That would require time and expensive lawyers. But it’s also possible that rights holders are just waiting for things with certain high-profile podcasters to reach critical mass before pouncing on violators with a big bill.

There’s no doubt that a lot of money is being left on the table, so why can’t someone just come up with a blanket license for music in podcasts? Various proposals are being floated, especially since the U.S. podcast market is predicted to exceed US $1 billion by the end of 2020. The new medium is exploding, and the bigger things get, the more difficult it’ll be to keep things orderly and legal.

But first, there are endless negotiations that need to be conducted with rights holders around the planet.

All artists, composers, and those associated with a song deserve to be compensated for their labour. The situation with music in podcasts is one of the most challenging things the industry has had to face since the blanket licenses that came in with radio almost a hundred years ago. Except, like, about a million times trickier.

About Alan Cross