IP and Copyright Within the Music Industry, featuring Dr. Hayleigh Bosher

In this episode of Innovation Capital

In this episode we sit down with Dr. Hayleigh Bosher to discuss the world of IP and copyright within the music industry and how technology is changing the game.

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Episode transcript

Ray Chohan: So welcome, Hayleigh, to Innovation Capital, hope you’re keeping well.

Hayleigh Bosher: Well, in the current climate, I’m doing pretty well.

Ray: Excellent, brilliant. So we were really excited to kind of connect with you today. A number of our team have started stalking your YouTube channel, some of your content. And also I know you’ve recently published a book. So we’d love to just get a an overview of your mission and vision in today’s, kind of, meeting. But we’d love to kick off about your story, how you ended up in the wonderful world of IP, and most importantly, IP being such a big universe, what really kind of excites you in terms of your focus area?

Hayleigh Bosher That’s, those are some really nice questions. I’m very happy to answer those. I actually did performing arts before I did law. I had a lot, I just have a love for theatre, music, film, the creative arts. And at that age, it was really my ambition to be in the UN on that side of things, really. But I got to the end of my college diploma in performing arts and thought, I’m quite distinctly average at this. And I’d quite like to do something where I could make some money. So I took off to university and did a law degree instead. And which — I wasn’t that engaged. To be honest, I thought most of it was pretty boring. But in the final year, I studied entertainment law and intellectual property law, and I loved it. And, and from there, I was offered a scholarship to do a PhD in copyright law, which, to be honest, at the time, I had no idea what that was. But they said, if you do it, you get to be a doctor. And I thought, that sounds pretty cool. I’ll do that.

And so it was kind of quite serendipitous. And I sort of fell into it really, and now what I do is, I’m an academic, I’m a senior lecturer at Brunel University London, and I teach intellectual property law. I run the intellectual property pro bono service there. And I research mainly in the area of copyright, but also I do a little bit of trademark as well. And as you mentioned, I’ve got a book coming out, comes out this month, it’s called Copyright in the Music Industry. And it’s all about, like, I want to say that with lots of research that you do as an academic, the purpose of the research is, you know, to inform the literature and move things forward and research. This book is really not that. I wrote it for creators, it’s just a gift. There you go. I wrote it for musicians, for artists, for people in the music industry, to help them understand more about their rights. It, I think, also will appeal to people who are researching and interested in, in copyright in the music industry. But the primary audience — it’s not, it’s not a law book. It’s not written like a law book, I joke around in it quite a lot, which is not normal in academic research. But it’s there to help people understand more about their rights, which I think is so important. It’s just always been my philosophy: that knowledge is power. And so it’s there to help inform people about their rights, and help them kind of navigate the copyright sphere, in the context of the music industry. And as you said, alongside that, I’ve done a little podcast, too, where it’s so fun! We’re interviewing people from all areas of the music industry, to talk about their experience of copyright, and the industry and the rights and stuff like that. So it’s really fun.

Ray: It’s fascinating. So the music industry from a technological standpoint, ever since Steve Jobs came up with his amazing set of innovations around completely disrupting the old guard, with a first the iPod, and then the music store. So I’m guessing there’s been so much change, which was led by technology, disrupting the IP front, but fast forwarding on to 2021. What are some of the key areas that content creators, talented musicians, have to keep a pulse on in terms of ensuring they have good command of their IP? What are some of the big things which they need to keep a kind of a close eye on?

Hayleigh: Well, I would say that copyright and IP is always evolving alongside technology. So you’re right, Steve Jobs made a big difference. And the invention of the iPod changed things, but at the time, so did the cassette, so did vinyl, you know, so did the printing press. So every time we have a new technological invention, or even changes in society, often you need a new law to kind of understand where where things lie around that technology. So copyright and technology have an intertwined relationship, and they should always continue to evolve, right? And that’s part of the reason why you need a little bit of understanding about copyright because it is always changing. This is not like a one time task where you learn all about copyright. And you’re like, “I’m done for the rest of my life,” because it will keep changing. And at the moment in the UK, we’re having a review of some of the rights that affect artists and musicians and people in the music industry, particularly in relation to how the streaming model works with Spotify and YouTube to try and figure out if there’s a way that artists and musicians can be better remunerated for their work when it’s streamed. And that’s going to be really huge development in the law. It’s ongoing right now, for copyright nerds like me, it’s super exciting. And something that definitely musicians and people in the industry should be aware of, I think it’s, especially in the UK, but also around the world to keep a pulse, like you say, on what’s going on. Because with the developments, as we evolve with technology, nothing really happens in isolation. So we always keep an eye on what’s going on in America and Canada and Europe, and, you know, learn from each other. And so it tends to be that they don’t happen in isolation. It’s not like, although every country has a different copyright law, we have these international agreements and, and some basis, and I think we learn from each other. You see how it’s being done in America, you see how it’s being done in Germany, and you think, well, how can we do it here that serves our community the best?

Ray: It’s fascinating. You mentioned some of the technological changes, because that’s something that we’ve observed here were some of the amazing platforms, they’ve made a huge change in the market. So you have YouTube, Spotify. However, it does seem the artist is shortchanged, in terms of compensation, but also kind of ownership rights on how that content is distributed. And we are hearing, or we are working with now, a bunch of fascinating folks deploying blockchain and more of a decentralized way of an artist actually permanently owning their IP. Are you seeing some exciting developments on that front, Hayleigh, where blockchain and decentralized platforms, kind of are the future for artists to really take ownership of the great work they do?

Hayleigh: So in my book, I have two chapters, one on blockchain and one on artificial intelligence. It definitely is an important area to keep an eye on the developments that are happening at the minute. And it could have a big impact on the way that artists manage their IP, or their copyright. I have some reservations about blockchain, because as you probably know, it’s a ledger that can’t be edited. And the thing about music data is that it’s not static. And so we might need a way that the data is more flexible, to be able to really serve the music industry. And that’s something that’s not yet been figured out.

I think some people dream that blockchain can save or solve so many of the big problems in the music industry, as you say about remuneration getting to the artist because sometimes this can take years, or sometimes it never happens at all. And there’s a big data issue in the industry. What I think is more of a realistic kind of understanding of what blockchain can do is, I think it can be an assist. I don’t think it’s going to solve the problem. I don’t think we’re going to have necessarily blockchain licenses operating on their own, or you’d like a blockchain registration system, basically for copyright, which I think is some people’s ambition. But as I said, I just don’t think that copyright and music data is that static, it needs to be edited, the way that we make music is so fluid, you have different people coming on, information gets changed. And, yeah, I’m not sure it can work because of the fact that it needs to be editable. I know for example of some work being done in a London based company, where they’re looking at it, and I was just thinking before I said it, like whether they’d be fine with me sharing this information, but very vaguely without disclosing anything because it’s not on the market yet. And it’s an app that would assist artists and music makers. And in connecting who the creator is, with a register or with the collecting societies to help them get paid quicker and to try and avoid a situation where we don’t know who should be credited on a track.

Ray: Okay, that’s interesting. So that’s fascinating. So potentially lead technology is the future because an artist can permanently track where their contents going, where it’s being used. So that’s a fascinating space that we closely observe here at PatSnap as well. And on a broader level, does this spin out to general content creators?

So musicians aside, that’s an absolute amazing influence out there now. There seems to be a new style every quarter, especially during lockdown. And I’ve personally definitely been introduced to some new channels on YouTube, especially during the lockdown period. So how does this extrapolate to content creators on Insta or YouTube who might be in health and wellness or doing something in the finance space? What does it look like in that ecosystem?

Hayleigh: So in some ways, you’re right. In some ways, it’s similar. And it will be the same situation for people making film, audio, photography, creative outputs, which are all regulated by copyright, and managed through the same mechanisms. And for some content creators, it will be more straightforward, especially if you’re a solo person, just doing it on your own. There’s no confusion about who owns what that could actually be much more straightforward, and as you said, could be used to help trace when content, when and how and where content is used. And that could help you get paid, if that’s what you’re doing. And for other areas like film, it’s just as complicated if not more, because there’s more people involved in the creation of a film. And actually, I used to live in the Netherlands and work at a creative institution teaching filmmakers about the laws they need to know to do with making a film and documentary film as well. And it is that is actually a bit of a minefield, because you’ve got the director, you’ve got the producer, you’ve got different people, and and then you’ve got the soundtrack, like there’s so many elements from a copyright perspective that make up a film, that can actually make it more complicated. But in terms of like, a content creator, like a YouTuber, then it’s usually like one person or small team. So it’s a bit more manageable.

Ray: So, spinning off slightly to something else you build out, which really inspired a lot of our team members here, perhaps not because we’ve got a very equally deployed workforce, in terms of gender, is your amazing work around the world with IP Women. So what led you to create that association, because we had a chance to really dig into the online portal, we’d love to get the backstory behind your inspiration for building that out.

Hayleigh: Great, I’d love to tell you that. So basically, the true story is it was Christmastime. And I needed to, I was doing an editing job where I had lots of different authors talking about different intellectual property aspects. And I looked at the list, and they’re all male. And I thought to myself, this can’t be right.

I was previously not the editor. So somebody else did it, and then it became my job. And that’s when I reviewed it. And I was like, This is not, I’m not okay with this. And then I thought to myself, Okay, well, I’ll just, you know, invite some female authors to contribute to this edited collection. And it occurred to me that other than the women that I know, directly, and IP is a fairly small community, but at the same time, you know, that wasn’t the best strategy to be like, contact all the people I know who do IP, in terms of helping me with the resource. So I was just thinking, like, what would be great is if I had a better way to find out where there are some women who do IP, because visibility is not great. And just to give some context, this is something that had been playing on my mind for a while, because as a woman who works in IP, it’s so glaringly obvious to me that I go to conferences, and there’s an all male lineup. And I’m the kind of person who goes up to the organizer and says, excuse me, why are there no women here? You know, where’s your diversity? And, seriously, a lot of times, I’ve been told, or had been told, there’s no women here because we didn’t know any, we can find any, or whatever excuse they had about not the lack of visibility of women and IP.

And I know that there are women who work in IP, it was really a visibility issue. So I decided to just create this database where you can easily find any woman who works in IP, in any field of IP, in any position, anywhere in the world. So there’s no excuse if you are creating a edited collection, which is what I was doing at the time, or a panel discussion for a conference. You can just go to the website and search you can search by name, location, area of expertise, position — and contact a woman in IP to diversify your panel or whatever the projects that you’re working on. So it was really, for me just solving a gaping problem of visibility of women and IP to push that forward and make that easy. So then there wasn’t really an excuse. What came of it was also a community. So I created just like a LinkedIn group. And again, at the time, as I said, I was just, it was Christmas holidays, I sat in my living room on my laptop, like, I’ll just do this, this is fine. It won’t take long. And now we have like, I can’t remember the last time I checked, I think, literally 1000 people or something in the LinkedIn group, about 500 women on the actual directory where it became a space for supporting each other and sharing information. Sometimes I put job adverts on there, or discount codes that people offer as part of the — just to kind of enable women in IP as well. So that’s how that happened.

Ray: I’m guessing post-COVID will move back to some form of normality. Is there any plans to do events where you get the community together and, and kind of present and really push this initiative forward? Because it inspired a lot of the folks here in our team. So what are the plans moving forward for this motion?

Hayleigh: Yeah, before COVID, there was definitely plans to do events. And we did have one social event in London, but it was just, literally, we went for drinks, which was quite nice. But then I thought exactly like a maker platform where we can, you know, have a conference or whatever. And I’ve got some partnership organizations that are similar or have similar goals. And we have a division, like a Scandinavian division of women-and-IP group who work who sort of do their own networking as well. So absolutely, we’d love to do an event. And quite honestly, the only reason we haven’t done one, because we could have done one online is that, as I said, I just did it myself, and it’s not funded. And I’m quite busy. So I just haven’t got around to it, quite frankly. So yeah, we will absolutely do some events in the future. I like the goals are twofold. It’s like about making women more visible. So it gives them a platform to talk about whatever is the area that they’re working in. There’s also a community. So it’s nice to get together and talk about the perils of being a woman and working in IP, I guess.

Ray: Okay, make sense. And going back to the work, you’re releasing this month, Copyright in the Music Industry. There’s definitely a component in the book which caught my eye: the impact of social media on copyright infringement. So obviously, it’s been the last, like, I feel now, the last 14 years, I’d say, kind of five years onwards is where social media, these platforms have really transformed our day to day. To be fair, in a good way, and sometimes in a bad way. So from a copyright standpoint, what have been some of the big macro mega trends, which are called “cause challenges” in the marketplace, which have led to people needing to develop a brand new way of approaching copyright in social media?

Hayleigh: Yeah, so I’ve done a few papers and research projects in social media as sort of like the topic of the of the research. And I kind of transplanted that into the context of the music industry for the book. And I think there’s kind of like general issues, like ownership of copyright material on social media, the sharing of copyright protected material, whether it’s copyright infringement or not, I mean, one of the biggest problems I came across in general is that people don’t understand copyright. And they, they share things that they think they can share, because the whole point in social media is sharing. And the platform is designed to, obviously, they want you to stay on there for as long as possible. So they can make as much money as possible from advertising revenue. And that is by sharing your own content and third party content.

So through my consultancy, and also the pro bono and things like that, I’ve had clients who have had letters asking them for money, and for sharing copyright protected content, and that it was infringement. We’re not really seeing this in the courts. Because when you get a claim like that, you pay it because you have infringed copyright. It just seems a bit absurd because we’re like, this is what everybody does on social media, and it’s just bad luck if you get caught.

So there’s a big disparity between how we use and understand social media and copyright regulation, which says that sharing content, copyright protected content without permission is infringement. And so that’s a big aspect of the social media research that I do. Looking at that, and also the terms and conditions. And we saw some hope, high profile disputes about this, you know, with Khloe Kardashian, and Gigi Hadid, or having court cases around sharing pictures of themselves on their own profile. And I think that just kind of exemplifies the bigger issue around that area. In terms of the music industry, in my book, I look specifically at things like TikTok, which has had a huge impact on the music industry, some positive some negatives, you could argue, but the fact of the matter is, if you’re in the music industry, if you’re releasing music, if you’re a manager, if you’re a record label, publisher, everything like you need to know about TikTok, it’s like a big part of making a hit.

Now, when you imagine like, literally five years ago, this wouldn’t have been a thing. But now when you release music, especially pop music, in particular, they have a TikTok strategy as part of the marketing campaign. So it’s really important to understand the impact of social media on consumption behaviors and consumers, how fans find music, discovery, all that kind of stuff. And then obviously, like the regulatory side, being that for a long time, TikTok was unlicensed, and people weren’t. So the artists whose music was being played on TikTok, they weren’t being remunerated for that. Now, it is mostly licensed, so they pay a license to record labels, who then should show they do (or will) distribute that wealth to the artists and the musicians, and then there’s different, like, global licensing agreements around the world. And there’s still some to be decided. And it all happens behind closed doors. So we don’t even know what they say. It’s very controversial. But it’s an interesting area, and definitely something that people need to look at in the music industry.

Ray: On a broader level, you mentioned some of those popular names in content creation and mainstream media. But do you see now in the next four or five years more power being shifted to the actual content creators in terms of copyright, freedom to operate more control? Because the rise of the individuals versus the platforms? Do you see some of that bubbling up and causing big platforms to kind of change their strategy?

Hayleigh: I think the power of the people yeah, I think is massive, like I couldn’t agree more. We’ve seen it with the Wall Street thing, I don’t want to go into the details of it. But you know, that is the mass individuals rising up against the big corporations, where, as I mentioned, with the big streaming inquiry we’ve got going on in the UK at the moment, that is also a massive example of artists collectivizing. And coming together to, for the first time really in history, standing up to the record labels and being like, We’re not happy with this. Because before there was always this like, kind of David and Goliath, like the big record labels have all the power and, and they do and it’s not even to say like that they don’t offer a service. And they do. You know, there are many artists and musicians are happy with their record deals. But there are maybe many more, especially those on legacy deals who are not getting the fair remuneration for their work.

And I think social media, in general, really empowers the people. And a friend of mine, who I did a joint paper with, is a social media expert, and I did the law side. And we were looking at, like Russia and and her research in particular looks at like why people go onto social media and complain about a company. And so interesting, about like, the motivations of the people. And the difference between you know, before social media, if you had a complaint with a company, you the word of mouth, you know, you can tell a few people not to shop there or whatever. And, and they might listen, but now I can go on social media and tell the whole world or anyone who will listen, whether I’m happy with this service or this product or not. And so that does put a lot of power in the hands of the people. I’ve seen it with things like intellectual property claims, as I mentioned, like some of the stuff I do is to do with trademarks. And I’ve seen like, cases where big brand has sued a small family run company, the family run company, put it on Twitter, people go mad. And then the big brand is like, “Oh, sorry. Actually, we’ll just reverse that. We didn’t mean it.”” Because of the the reputational damage was worse than the fact that their trademark was maybe being infringed by the smaller company. So. And I think that that applies across the board, from Wall Street, to music. I’m not trying to say that all the individuals necessarily should get what exactly what they want. Copyright especially is all about balancing the interests of different stakeholders, you have to take account for the rights holders, and the public interest. And when I say the rights holders, I mean, you know, in the music context, that’s the record label, but also the artists as well and the creator. And copyright is like this balancing act, where they’re always trying to balance like how much power and rights they give to the rights holders, versus the limitations and exceptions and ways that the public can use and access that material. And this has always always been the copyright kind of agenda. And I think the difference is now that especially when I do my PhD, I looked at kind of like some of the engagement of when they were changing the law. And when we had that we had a change in the law in 1952, and then 88. And you could see that, in the beginning, it was only companies lobbying the government getting what they wanted from the law. And then over time, we’ve seen more individuals, more organizations that represent creators. And so all the voices are being heard. And that’s really important. So I think social media and collectivizing. And technology enables people and communities to get together, organized. And then their voice heard where it wasn’t heard before. And that’s amazing and really important. And hopefully that will make fairer law, and better policy and regulation.

Ray: In terms of looking five, six years out now, where do you see in the way copyright will be managed? Will it be done in the same form factor? Or is it more power to the individual? Are you seeing any technological trends which shape the future of how copyright’s managed in the spaces you care about Hayleigh? What does the future look like?

Hayleigh: It’s a good question. I mean, in terms of copyright management, we manage copyright through contracts, it’s always been that way. And so knowledge is power in that sense, because when every contract is just an agreement that’s recognized by law, and you can write anything in here that’s within reason, as long as the two parties agree. And a lot of the time, especially in the areas I work in, has a lot of mystery and complexity around the contracts and lack of negotiation power for the individual and the creator, because they just want the record deal or they, you know, they want the publishing deal. So just sign it or care, or even maybe read or understand what the contract says. And although in the music industry, it because this happened a lot before, they are actually required to seek legal advice on that contract. But it doesn’t stop them signing it because they just want the immediate reward, which is totally understandable. But I do think that people understanding more about copyright and their rights, and what they can and can’t do. And that empowerment will give them more kind of leverage in the negotiation to decide for a fair contract and a fair management of the copyright. And just as an example, like in under US law, artists and kings get some of their rights back after 35 years, there’s there’s a process but it’s possible, and that doesn’t exist anywhere else in the world. And it’s one of the things that the artists and musicians bringing up in the current UK inquiry to be like, Yeah, why don’t we have that? Why don’t we get our rights back? You see what I mean? It’s like something that was not really thought of before and now suddenly, it’s coming in kind of the collective consciousness that Yeah, maybe we should have that. And especially because we’re seeing in the news, lots of artists now selling their catalogs and making huge amounts of money, which is great for them that’s like their, their pension the rest of their life. There. Now, because they are able to, they’ve got the rights and they’ve sold them. And that’s only happened because they negotiated that in the first place.

Ray: And we’ve really enjoyed connecting with you today, because you brought a fresh perspective and covered a topic which we don’t cover often on Innovation Capital, to be fair, looking at copyright within the world of music, the arts, now the rising world of influencers. So this has been brilliant. So just a fun quick-fire round before we wrap up, Hayleigh. Top two books that you recommend, what’s really kind of shaped you? If you could give two books to a friend or a loved one?

Hayleigh: Am I allowed to say Copyright in the Music Industry by me?

Ray: I think — I think we gave that plug earlier!

Hayleigh: One of the first books I read when I was just starting out doing my PhD, was by Bill Patry and called How to Fix Copyright. And there’s another one called Moral Panics, or I can’t remember the exact title right now. But they were both amazing. And they definitely kind of opened my mind to be like, Oh, yeah, we can question this copyright thing. It’s not like a natural phenomenon that is set in stone, we should really start thinking about it. Does it work? So? Yeah, I would say Bill Patry’s How to Fix Copyright was probably the one that impacted me the most. And then I read the other one second. And more recently, a recent one, my second one. I just read Emily Hudson’s book. It’s called Drafting Copyright Exceptions. And I mean, the it just blew my mind, this woman is amazing, because you’re reading it. And you’re like, first of all, we don’t do a lot of empirical research. “And/Or” is not that common. And she’s done all these studies: she interviewed people internationally. It looks at Canadian, US and UK law, I think, if I’m remembering correctly, it’s great. It’s a really good read, even if, like, I didn’t really particularly focus on copyright exceptions in my research, but it was just such a excellent book. And I really liked what she did. What really interested me is, she looked at not only the law, as it is in the statutes and the case law, but she looked at the impact of the actual law and the changes on the institutions by interviewing the people that were directly linked to that law. And I just think we should be doing loads more research like that, like actually talking to the people that the law regulates to see if they even know about it, and how it works, whether it’s good or not for them. So yeah, Emily Hudson’s Drafting Copyright Exceptions.

Ray: Thank you. And this is really left field. Alien-life-form believer or non believer, and why?

Hayleigh: Those are great questions! A alien life form? I would say you can’t rule it out. I like to believe in a little bit of, maybe, magic and fun. So why not? Okay: believer! Why? Well, because anything is possible.

Ray: Okay, that’s definitely the spirit. So, Hayleigh, it has been awesome connecting with you today and learning about the wonderful world of IP you operate in, so please stay safe. Please stay well, and a pleasure connecting with you.

Hayleigh: Thank you so much for having me. It’s been fun.