Podcasting: the legal issues
This guide is based on UK law. It was created in February
2007.
Podcasting is the creation of audio content for
download to a mobile device or computer for an audience to listen
to where and when they want to. However, many people who create
podcasts do not realise that they require the consent of the owner
of the copyright in any third party material which they include in
their podcast. Even small samples of recorded music cannot
be used without licences.
There are some sources of royalty-free music for podcasting,
such as UniqueTracks.com, that may
not require the licences described below; but if you're looking for
well-known music, you are unlikely to find it in these sources.
The Mechanical-Copyright Protection Society and
the Performing Right Society offer a
licensing scheme which allows podcasters to use the global
repertoire of musical works represented by the
Mechanical-Copyright Protection Society and the Performing Right
Society (by granting the necessary writer/publisher permissions for
inclusion of their works in the podcast).
There are two licences available under the scheme:
the Joint Podcasting Licence (JPL), aimed at medium to large
podcasters; and the Limited Podcasting Exploitation Licence (LPEL),
designed for smaller scale, non-commercial podcasters.
The appropriate licence depends on the amount
of revenue you expect to make from your podcasts (such as from
making a charge to listeners or through advertising, sponsorship
etc.), and also the number of works that are expected to be
downloaded in a year (for instance, 100 downloads of a podcast
containing 5 works would constitute 500 downloads).
If you expect to make more than £3,333 + VAT
or expect more than 27,000 downloaded works in total in a year, you
should consider the Joint Podcasting Licence. Under the licence you
will need to pay a royalty which would be the greater of the
following:
- 12% of the gross revenue generated by the Licensed Services;
or
- £0.015 per musical work per download; where only part of a
musical work is used and it is less than 50% of the duration of the
original then the rate will be £0.0075 for that work.
There is also a Quarterly Advance (minimum
£100) which is fully recoupable against generated royalties.
Un-recouped balances may be carried forward to later quarters
however they can only be used to offset royalties and not further
quarterly advances.
If you expect to make less than £3,333 + VAT
in revenue from the service per annum and expect fewer than 27,000
downloaded works, you should consider the Limited Podcasting
Exploitation Licence. Under this licence you will pay £200 + VAT
per annum for up to 13,500 downloaded works; or £400 + VAT for up
to 27,000 downloaded works. Fees will be pro-rated for services
operating for part of the year, subject to a minimum licence fee of
£50.
There are conditions attached to both licences
about the use of music within the podcast.
For the recording rights, there is no equivalent
licence. PPL (Phonographic Performance Limited), which
licenses recorded music for other uses (including public
performance, radio and TV broadcasting and internet radio), does
not license music for podcasting. It will only refer you to the
record company and for now has no plans to change this.
So for each piece of music you wish to use in a podcast
you will need to identify the record company and negotiate
a right to use the piece. This makes the use of popular
music in podcasting unrealistic for many organisations.
See also: Legal info about user-generated
content
