With the pace of new use cases increasing by the day, Nick Bennett explores whether our existing interpretation of sync will be fit for purpose in the future.
The overwhelming reaction of anyone who is newly introduced to the topic of music rights is “why the hell does it work like this?”
At its origins (roughly the 1700s) it made perfect sense. The way music was created, performed and licensed was appropriately designed to try and ensure as many people as possible were remunerated for their specific part of the process. Since then there have been many leaps forward, including the forming of the PROs at the start of the 1900s.
The problem with systems that were designed out of context (i.e the copyright system as a whole and how royalties and music payments flow) is that the more tinkering and expansion happens, the less well the system functions. Even with the introduction of the DMCA and other updates to copyright regulation, these changes normally trail consumer behaviour and use cases by some distance. A great example of this is DMCA being introduced nine months before Napster launched.
Talking about whether the current approach to music copyright in general is fit for purpose is one I will leave to those with more qualifications and more skin in the game. Instead, this article will look specifically at music rights in the context of sync and the complications arising from the rapid development in technology and use cases that have appeared over the last decade or so.
Sync As it Was Intended
Without wading too deeply into the history of sync, its origins can be described in a similar way to the origins of music copyright in general, fit for purpose. The categories of music available (library music, bespoke music and commercial music) havn’t changed music over time but the amount of content created, how it’s distributed and how it’s cleared certainly has. Even just looking specifically at the film industry (via some helpful soul on Reddit) there has been a seven fold increase in the number of films created since the late nineties. If we look at the big technological changes that have delivered this growth they can be categorised in two ways; the democratisation of content creation and the explosion of distribution options.
The obvious lens to use here is the challenge of scale. How do those same library, bespoke and commercial music companies serve the exponential number of new customers with new licence requirements and the answer is relatively simple, e-commerce. Although it would be possible to spend a great deal of time analysing how a large number of the incumbent libraries, publishers and labels have struggled with this transition, what I think is significantly more interesting is to analyse the other parts of the system that have broken as a byproduct of a few companies solving the e-commerce challenge.
To dive into this topic we must first explore the model that was trying to be recreated on the internet. Historically, for profit broadcasters had a very simple business model that worked effectively when competition was relatively limited. The model focused on creating programming that an audience wanted to watch, attracting them to watch that programming, and then selling adverts to brands that wanted to reach that audience. The music element of this model seemed to work cohesively, with sync licensing being obtained (via blankets or per programme/ad) and public performance being paid via the PROs. There was (and still is) enough money to go round in this model and the existing music rights system held up well.
Although the systems have now been mostly automated, even filling out cue sheets by hand seemed to work well enough with the scale that most broadcasters operated under. Transferring this model to the internet is where we start to play an infinite game rather than a finite game, and the model becomes more challenging. Not only is the scale a problem, but the business model of most internet/software businesses rely on high fixed costs and low marginal costs, contrary to the music industry’s preference. Businesses trying to build themselves around user demand quickly ran into issues with their ability to allow users to use the music they wanted.
YouTube’s beginnings (as with most social content platforms) were fraught with legal issues. The bigger headline issues came from the Premier League and Viacom, however, the major labels made headlines of their own by insisting most of their content was blocked on the site. The usual defence of ‘fair use’ never really works for very long and that was the case with German courts siding with the PRO GEMA in 2012 with them ruling that YouTube hadn’t done enough to try and stop copyright infringement.
With the launch of the Content ID system in late 2013, the biggest shift to date happened. The much derided manual approach to DMCA claims and take downs was replaced by the similarly derided automatic approach via Content ID. Content ID provides rights holders the option of blocking, monetising or tracking their assets on YouTube. Undeniability this was a step forward in terms of rights holders being able to enable licensees to use the music they’ve paid for but equally it has thrown up even more headaches.
One of the biggest headaches, which will most likely never go away, is the pandoras box of music rights that it opens up. Most hobbyist and professional content creators never really delve too deeply into the world of music rights and even when they do, trying to understand why they are still getting copyright claims on their videos when they’ve paid for a sync license is a bit much to ask. This challenge must then be laid at the door of the copyright system.
Whether the underlying rights themselves change or the way they’re presented and experienced by the end user, it’s definitely something that should budge.
For the historic use case of big production companies making programmes and adverts for big brands and broadcasters there was the time, opportunity and expertise to patiently explain the different types of music rights and why they were needed. If we now fast forward to someone creating a video on their iPhone 13, buying a track from a music library and then uploading to YouTube, then it’s obvious to see the need for change. Whether the underlying rights themselves change or the way they’re presented and experienced by the end user, it’s definitely something that should budge.
The second headache, which is a far more recent occurrence, is the limitations of the Content ID system. In this instance the music copyright system is not completely innocent and the complexity of multiple writers, performers and interested parties means that when it meets the need of the Content ID system to be administered by one representative head on, there is serious friction.
There’s great work being done by Adrev, Orfium, Pex and others but the small size of the impact on YouTube’s (let alone Alphabet’s) business is something that may mean this is some way off being resolved. Those who don’t create specifically for sync or those who do but would like to take a more complex route to monetisation (third party support etc.) risk being unable to give the end users the flexibility they desire. Some of the issues are so complex to resolve that even Bieber can’t avoid it.
The challenges of music and TikTok are rarely discussed in comparison with its positioning as the music industry’s saviour. TikTok is clearly serious about music. Since the platform’s infancy, music has been a core feature of its value proposition and not only has enabling users to bring music to the platform been important, it’s also been important to consider how brands interact with it. Looking across similar social platforms, most of the effort is concentrated in enabling the legality of music by its users, but very rarely does this extend to the levels seen by TikTok.
Beyond just securing the deals with the majors, TikTok have extended to creating a fairly large in house music supervision team as well as securing preferred partnerships to enable ease of use from their paying advertisers. All of these services clearly paint an ambitious picture but for this to be worthwhile you must believe that TikTok is completely unique in the social landscape. If advertisers stray beyond creating content specifically for TikTok (i.e the campaign is distributed to TV, other social etc.) then the point of licensing music no longer likely sits with TikTok but at its more traditional placement between creative agencies and music companies.
Moving beyond the more traditional social media sync uses we land on Twitch. With its origins as a different kind of social platform (gamer’s streaming), there is a different challenge presented by the rights issue. Rather than soundtracking the videos in a conventional sense, the music issues could sometimes be categorised as being more incidental. Twitch obviously suffers twice in this issue, with the gaming IP and the music IP, however, at one stage the whole service could have been viewed as a big advertisement for the gaming industry but the same can’t quite be said for the music industry. As with most platforms, Twitch have tried to get around this by curating a rights cleared music collection but, as with audio swap on YouTube, it’s difficult to see this ever completely solving the issue. The larger question is whether the definition of sync is really fit for purpose here.
Roblox offers a perfect opportunity to continue the theme of whether sync, as it is currently defined, is always fit for purpose. The history of sync in gaming is fairly uncontroversial on the whole, especially where AAA games are concerned. The publishers of the games would normally negotiate a licence for a number of tracks for the soundtrack of the game in the same way all traditional sync has been acquired, in addition to regular use of bespoke music. This approach worked well as the games were discreet creations, mostly delivered on physical products that never got updated. The two challenges to this approach are the shift to digital delivery of games that then allowed for uploads, potentially creating multiple syncs, and then the creation of infinite games like Fortnite and Roblox.
Roblox specifically offers a really interesting example of the complexity from a music rights perspective. Rather than the owners of the game also being the creators of the game (or at least them being individual companies), Roblox is simply the platform on which others create games. As of October this year there were 9.5 million developers creating games on the Roblox platform and it’s claimed some make as much as $2m per year. This number is likely to be subject to the same power laws that govern the rest of the internet, meaning a very small percentage of the developers actually make anywhere close to that.
This business model (even when developers are making $2m) doesn’t really fit with the original licensing model of AAA games. Developers are likely to be unwilling to pay large sync fees upfront to license music for their games and given these games can be updated at any point, the terms would be challenging. This has pushed the Roblox community into some interesting tactics to get their favourite music in the game.
Is Sync Fit For Purpose?
Looking at the more traditional use cases across social platforms it’s clear there are still some issues to be resolved. The complexity of trying to enable millions of users and advertisers to access music in a way that benefits all parties needs more focus and capital than perhaps anyone is willing to invest. This, in the short term, will mean those with the simplest rights structures or business models will have a much easier time than anyone who isn’t focused primarily on sync or hasn’t done it with a digital first mindset. In addition, the social platforms trying to solve this are probably more of a distraction than something that is going to provide a true breakthrough.
The complexity of trying to enable millions of users and advertisers to access music in a way that benefits all parties needs more focus and capital than perhaps anyone is willing to invest.
The more unique use cases, especially in gaming, could require a more wholesale rethink of what is classified as a sync. There have been wide scale issues in platform and gaming companies where the user experience has been significantly impacted because the correct rights haven’t been able to be acquired or agreed, with the musician and the fans being the main ones to lose out. The challenge of finding the correct wording, legal definition or technology that enables use of music (and fair remuneration) in these spaces, whilst not damaging the traditional sync deals, is something that is also going to require significant focus and capital. In this instance I think the reward is worth the effort.