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Podcasting: the legal issues

This guide is based on UK law. It was last updated in October 2008. Podcasting is the creation of audio content for download to a mobile device or computer for an audience to listen to where and wh...

This guide is based on UK law. It was last updated in October 2008.

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. If this is all your own work you will own all the intellectual property rights. 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. However, music licensing is a mature business and so provided the current fee to the appropriate rights holder then you should be able to use whatever music you like.

The Mechanical-Copyright Protection Society (MCPS) and the Performing Right Society (PRS) offer a licensing scheme which allows podcasters to use the global repertoire of musical works, managed by MCPS and PRS. The MCPS and PRS represent almost all the major recording artists and can grant the necessary writer/publisher permissions for inclusion of their works in the podcast.

There are two licences available under the scheme. These are:

  • the Joint Podcast Licence (JPL), which is aimed at medium to large podcasters; and
  • the Limited Online Exploitation Licence (LOPL), 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 the service to make more than £6,250 (net of VAT) in revenue each year or expect 340,000 or more downloaded works in total in a year, you should consider the JPL. Under the JPL at the current rates you will need to pay a royalty which would be the greater of the following:

  • 8% of the gross revenue (net of VAT) which is generated by the licensed services; or
  • £0.15 minimum for each track (or part of a track) which is downloaded.

The above royalties are exclusive of VAT, which is payable in addition. Usage is reported, and accounted for, on a quarterly basis. There is also a quarterly advance (minimum £50 plus VAT) 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 £6,250 (net of VAT) in gross revenue per annum and expect fewer than 340,000 downloaded works in a year, you should consider the LOPL. Under this licence at the current rates you will pay the following yearly amounts (which are inclusive of VAT):

  • £120 for less than 68,000 downloaded works per year;
  • £240 for less than 136,000 downloaded works per year; or
  • £600 for less than 340,000 downloaded works per year.

Fees will be pro-rated for services operating for part of the year, subject to a minimum licence fee of £60 (including VAT).

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) has not, until recently, licensed music for podcasting. However, the only licensing currently available is for commercial radio station broadcasters to enable them to use 30 second clips in radio programme downloads. For other types of podcasting (and/or the use of full length recordings), PPL will refer you to deal directly with the relevant record company.

So, in most cases, 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.

Contacts

See also: Legal info about user-generated content

Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.

More about Copyright