Using Copyrighted Music in Podcasts

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

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About Alan Cross

Alan Cross is an internationally-known broadcaster, interviewer, writer, consultant, blogger, and speaker. In his nearly 40 years in the broadcasting and music business, Alan has interviewed the biggest names in rock, and is also known as a musicologist and documentarian through programs like the long-running show, The Ongoing History of New Music. Outside of radio, Alan’s resume includes four books, dozens of public speaking engagements, a national music column for GlobalNews.ca, voicework for film and television, plus creating content for various film and TV studios, record labels, artist management companies, streaming music services like Spotify, and a travelling museum exhibit called The Science of Rock ’n’ Roll. Alan is also sought-after as a consultant for radio content.  His current client is 102.1 The Edge/Toronto. One of his companies, Major League Mixes, provided music advice for professional sports teams like the Toronto Maple Leafs. Alan has been deeply involved exploring the present and future relationships between music, technology, and social networking.

Comments

  1. Debby

    Thinking only if your podcast… I think it only helps the artist etc I’ve gone and purchased many albums as a result of hearing a snip in your show. Most I already have the LP, but you reminded me of it and so I wanted it on CD or mp3. I don’t see how the snips of music do any harm to the ones who hold the licences, but they definitely enhance your stories.

    Reply
  2. Sean Flynn

    This is not quite right. Fair dealing rights all have exceptions for quotation for criticism and review. Indeed, the Berne Convention mandates that all countries have such rights. If you are quoting songs for purposes of criticizing or reviewing the content of the music rather than to substitute for the work then you should be fine in every country.

    Reply
  3. Nathan Brydn

    How about paying the royalties. They arent that extreme.. Or it being 2020, develop a relationship with the artist and their publisher. Blanket licenses are sneaky and that’s reflected in the podcast content.

    Reply
  4. Jennifer Brown

    Thanks for this Alan. We hear you and are working to develop something to help in the Canadian market.

    Reply
  5. Jennifer Beavis

    I consider a podcast a sync licence. That is how I would suggest proceeding.

    Reply

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