Music in Scotland after the Referendum

What would change for musicians in Scotland in the event of a ‘Yes’ vote in September? This was the key question put to discussion on the 11th of April in Glasgow at an event organised by the Musicians’ Union (MU) on the Future of Music in Scotland.

The event was organised primarily for the members of the MU, although there were also a number of other attendees, including representatives from PRS for Music, UK Music and academics. The agenda included three keynote speeches by Members of Parliament and three panels covering important areas of the music business: live performance and subsidised arts, copyright and broadcasting. The day concluded with a discussion on the implications of Scottish independence for the MU.

As a member of the copyright panel, I discussed some of the challenges and opportunities that an independent Scotland would face in both matters of law and practicality. A practical question of significant importance to music performers pertains to the administration of their right to equitable remuneration for the public performance of sound recordings. Who would manage this right if Scotland were to become independent? Would performers still mandate PPL? This would be a reasonable option, especially if performers’ primary sources of income stem from the BBC. Would performers decide to vest the administration of their rights in private commercial agents? Or, alternatively, would Scotland decide to create its own network of collecting societies? If so, would it emulate the UK model and develop numerous collecting societies, administering different rights fragments, as in the case of PRS for Music, MCPS, PPL and VPL? A rather ambitious initiative would be the creation of a genuine one-stop-shop for content users through a bundled administration of the various copyright fragments. I say ambitious as Scotland would effectively be setting a precedent in Europe, if not worldwide, for such complex administration.


Image available in the public domain via Wikimedia Commons

The matters of law, i.e. the opportunities which would present themselves in drafting a new Scottish Copyright Act, are where there is genuine scope for improvement of the status quo, especially when it comes to creators’ rights. In previous posts, I have commented on the weaknesses of UK Copyright law as identified in recent studies on authors’ contractual dealings. A Scottish Copyright Act could address these weaknesses, starting with the creation of a stronger framework for authors’ moral rights, without the requirement of assertion or the possibility of waivers.

An interesting question from the floor was whether, in the event of a ‘No’ vote, intellectual property matters could be devolved to the Scottish Parliament. To me this seems to be an improbable outcome. Nevertheless, this point did stir my thoughts on whether at least the creation of an administrative body for Scotland, assuming some of the tasks of the Intellectual Property Office, could be an option that policy makers in Scotland would pursue. Such an institution would, of course, need to liaise with the IPO but would nevertheless provide for more local involvement in IP policies in Scotland.

Another important point which came up during the open discussion was that an independent Scotland would also have the prerogative of legislating in other areas of law, including labour law. Considering the high regulation of trade unions in the UK, the General Secretary of the MU John Smith indicated that a new law regulating trade unions and labour relations could perhaps also create an opportunity for the arts sector in Scotland.

Yet, from my perspective, it was important to highlight that all changes, especially changes to the law, would create costs for the actors affected by that law. It would therefore be one of Scotland’s many challenges to manage these costs sensibly so that they do not ultimately disadvantage musicians by driving away their contracting partners into arenas with more favourable legal frameworks.

Overall, the day offered considerable food for thought and a number of arguments for both a status quo and an independent Scotland. Particularly during the panel discussion on live performance and subsidised arts, opinions diverged as to whether Scotland is better off as being part of a bigger picture or whether it should be able to promote Scottish arts worldwide exclusively. Scotland currently benefits from funds by the PRS for Music Foundation, what is more, Scottish musicians can participate in a wider pool of competitions and grants available to all UK musicians – two valid points raised, particularly when taken in conjunction with a statement from a musician among the audience that music is made with a commercial impetus.


Image available in the public domain via Wikimedia Commons

From the day’s event I was left with the impression that Scottish musicians want to maintain the status quo when it comes to the organisations involved in the music industry. Musicians still want to remain members of PRS for Music and PPL, they want to be represented by the Musicians’ Union and, ideally, they want access to the funding currently available. At the same time, they want change, more control and influence over the content being broadcast, more promotion of Scottish artists and a Scottish music identity. I wonder, can an independent Scotland have the best of both worlds?

A Problem With Parody?

The explosion of content over recent years has given rise to plentiful parodies in formats ranging from videos to games and beyond. The creators of the originals, however, can find these to be unflattering or, in some cases, even outright offensive. The law can be invoked in such circumstances by angry creators, but are the parodies really that problematic?

The past decade has seen a much-discussed explosion in user generated content, with thousands of hours of video and millions of photographs created every single day. Amongst this sea of content many popular parodies have arisen, from subtitled movie clips of Hitler ranting to parody games and cover versions of controversial music videos.

For professional creators this wave of works can be both a blessing and a curse. The widespread availability and popularity of these parodies can offer a great opportunity to catch attention of audiences – especially if they go viral! On the other hand however, not all rights holders are happy to have their works used in such manners and creators can be upset at the messages that they send. The loans company Wonga, for example, was recently involved in a dispute with a Twitter user over a parody image, while publishing firm Penguin were left unamused last month by a satirical take on their classic Ladybird books.

Wrecking Ball

Wrecking balls have featured prominently in some recent parodies … Image available under CC BY-NC-SA 2.0 by David Pickett

Such responses can be an understandable reaction to what is, in many cases, an unflattering and unwelcome use of original works. Indeed, even where the message of the parody is positive original creators can sometimes still object. Well known band the Beastie Boys, for example, opposed an advertisement that parodied their song due to their wish not to be involved with advertising in any form.

The majority of parodies therefore are produced without any license or permission from the initial rights holder. In some jurisdictions this is not necessarily a significant problem. The US, for example, has developed legal space for parodies through the application of their “fair use” doctrine. Other nations have included express parody exceptions in their copyright laws.


The UK courts do not always look favourably on parodies. Image available under CC BY-SA 3.0 by Jonathunder

The approach in the UK however is much more heavily in favour of the original creator. Currently parody is not a listed exception to copyright law in the UK and the UK lacks any general exception equivalent to “fair use”. The test applied by domestic courts is to examine whether a “substantial part” of the original work has been used in the parody: If so the parody will be found to infringe, irrespective of the intent of the use or any additional original content. This is a particular problem as, by their very nature, parodies often need to take a large part from the original work to be effective. Something unrecognisable is unlikely to make a successful satire. UK law therefore favours the creators of the original and makes it difficult for parodies to survive challenge.

While creators of the original works are likely to have a strong legal case however, it is questionable whether parodies actually pose a problem in the first place. Putting aside any personal offence that may be caused, empirical research carried out for the UK IPO exploring parody videos on YouTube found that they didn’t appear to cause any direct harm to the market for the original work. Indeed in some cases they even helped raise awareness of the original. More ‘minor’ works in particular seemed to receive a positive bump in publicity from parody versions and even the very small percentage of parodies that were explicitly critical (1.5%) caused no evident harm. This led the authors to conclude that “it appears to be more advantageous for a commercial video on YouTube to attract parodies, even if highly negative, than to have no parodies at all“.

Additionally, creators who lash out against parodies can often find that taking action causes more problems than it solves. In addition to the PR backlash and perception of bullying that often accompanies enforcement efforts taking action can, as a more fundamental problem, draw more attention to the very thing that the original creator wants removed. This problem – often termed the Streisand effect – can exacerbate any reputational harm caused by the parody, something that Wonga have found out to their dismay in the aforementioned Twitter dispute.


Attempting to remove parodies may draw unwanted attention. Image in the public domain as a work of the U.S. federal government, by Lt. William C. Fox, US Army

Furthermore the current UK legal framework may soon be changing. The draft Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, which form part of a package of copyright changes in response to the Hargreaves Review, is set to introduce a copyright exception for:

Fair dealing with a work for the purposes of caricature, parody or pastiche

How effective these proposed changes will be – particularly as they are being included subject to a ‘fair dealing’ requirement – remains somewhat unclear: It is difficult to judge how the proposals will apply in practice. It has been suggested that there could remain uses which are prima facie parody which may, nonetheless, not qualify under the provision above. Overall however the addition of this exception will change the current position and will, at the least, weaken the legal bastion currently enjoyed by the creators of the original works.

It would appear therefore that for the creators of original works parodies may actually be beneficial; may be hazardous to attack; and may soon gain stronger legal protections than they currently enjoy. It may be best in the long term to simply let them be and laugh along with the rest. As the famous quote goes:

There is only one thing in the world worse than being talked about, and that is not being talked about.”