September 2020

Arts & Letters

Audio tapestry

By Anwen Crawford

Dolly Parton. © Terry Wyatt / Getty Images

A tangle of red tape is robbing us of music podcasts in Australia

Hello, hello? [taps microphone] Hi, listeners! Welcome to [coughs] this month’s column on music and podcasts. Call it professional bias, but I have often felt that podcasting is a form ideally suited to the exploration of music. And why is that? Well, to state the obvious, podcasting is audio, and, like music – like any sound – it crosses the threshold between our body and the world. It gets inside of us, fluent and infiltrating, tangible yet immaterial. [host’s keys fall out of pocket]

But a glance [scrolling onscreen] down the local streaming charts reveals a sore lack of music podcasts of any kind: episodic documentaries, song or genre showcases, musicological analysis, critical forums. The most streamed and most frequently downloaded podcasts in Australia are [sips beverage] true-crime serials (CasefileAustralian True Crime), comedy and chat shows (Hamish & AndyThe Joe Rogan Experience), and news (ABC’s daily Coronacast). Arrayed beneath these chart-toppers are any number of discussion-based podcasts on sport and politics, philosophy and fitness.

Given the sensory intimacy of a podcast, and the way in which we might carry an episode with us – on a smartphone, from place to place and room to room [a phone rings in the background, host curses] – it makes sense that we’re drawn in by hearing other people talk. This is especially so at present, in the midst of a pandemic that has caused a vast, global loneliness. [hums the chorus to “The Tracks of My Tears”] My own appetite for podcasts has risen exponentially in recent months: the sound of voices is a comfort. But, even given our apparent predilection for talk, not many podcasts, at least not locally, feature anyone talking about music.

This gap in the market [dog barks out on the street] is even more curious when one considers the international context, because there are several successful and interesting music podcasts that have been made overseas, particularly in the United States. Last year’s hugely popular Dolly Parton’s America, produced by WNYC Studios, is only the most obvious example: everyone really does love Dolly. There’s also [scrolling again, sipping coffee] Vox Media’s long-running Switched On Pop, which breaks down trends in contemporary music; The New York Times’ Popcast, which hosts discussion between critics; Slate’s Hit Parade, a gift to trivia nerds who want to know just how many B sides have ever made Billboard’s number-one spot, and more. Last year’s Stay Free: The Story of The Clash, an eight-episode podcast produced by BBC Studios, exemplified what can be done with music documentary as an audio form. Narrated by Public Enemy’s Chuck D, who [rustle of plastic as host pulls It Takes a Nation of Millions To Hold Us Back from its record sleeve] is always a compelling presence behind a microphone, Stay Free combined recorded music, original sound design, archival audio clips and contemporary interviews in order to create a sonic collage expressive of The Clash’s restless, clamorous spirit.

Locally, one of the few podcasts to compare is Double J’s Inside the Big Day Out, also released in 2019. Over five episodes, it gave a wide-ranging perspective on what once was Australia’s premier summer music festival [crowd noise, beer cans dropping onto ground], synthesising a story about popular music – particularly the rise and fall of “alternative” rock [crunching guitar] – with a wider examination of Australian society during the decades that the Big Day Out existed. Among other issues, the podcast touched on the resurgence of nationalism before and after the 2005 Cronulla riots, and the mixed fortunes of Australian concert promoters in the wake of the GFC. And now I welcome the first of this month’s guests: Meagan Loader, Double J station manager! In this interview I pre-recorded with her, Loader comments on the purpose of music podcasts: “People can listen to an album or a playlist whenever they want to. I think they’re going to the podcast format at the moment for conversations about music.”

If radio is a medium, as Loader observed to me, “on in the background, in someone’s life”, then podcasting, by contrast, is an audio form to which listeners pay active attention: “you’re choosing the topic, you’re choosing the moment to listen to it”. Since its origins in [checks Wikipedia page] “audioblogging” 20 or more years ago, podcasting has been conceptually connected to news, opinion and talk, whether delivered through the imprimatur of established media companies – BBC Radio’s weekly discussion show In Our Time, for instance, first became available as a podcast in 2004 – or created independently. And here too [an ad for home insurance autoplays in another open tab, host desperately closes it] is the beginning of the confusion over what exactly separates podcasting from broadcasting: a podcast can be a standalone production, but it can also be a radio show made available online after its initial air date.

My next guest, audio producer Lia Tsamoglou, who teaches podcast production at the University of Sydney, characterises the dominant, chat-based podcast style as “two-dudes-in-a-room radio”, though, as we speak, she notes that an increasing number of women are also hosting podcasts. And she nominates 2014 as a turning point for podcasting’s mainstream success: that’s when US public radio show This American Life, already popular, launched its spin-off true crime podcast Serial, which broke every podcast download record, spawned a vast stock of opinion pieces and entrenched [host carries microphone into kitchen; sound of kettle being switched on again] the idea of podcasting as a narrative form.

Music, too, can be a powerful aid to storytelling. Here’s Tsamoglou: “I’ve used it to move a story along, as a transition from one idea to another, as punctuation.” The music that a producer might choose to use in a podcast won’t always be a recognisable song; as Tsamoglou pointed out to me, dropping a pop song in the middle of a podcast can be more distracting than not. Each listener brings their own set of associations to a song, especially a famous one, and if a producer’s aim is to build atmosphere [wind in the trees outside; a door blows shut], they will often turn to what’s called “library music”: mood-setting, incidental compositions that can be accessed via subscription, or sometimes for free. This kind of production music is licensed differently to music commercially released by record labels.

If, however, a podcast is about music, then we naturally want to hear the music under discussion. During our off-air chat, Tsamoglou raised Dolly Parton’s America as an example: when those hosts are talking about how Parton [more rustling of record sleeves] wrote “Jolene”, it really helps to be able to hear some of “Jolene”. But securing rights to recorded music is very difficult under Australian copyright law – more so than in the United States, where many of the best-known music podcasts originate.

Here’s Gab Burke: “The biggest issue is always rights.” Burke produced Inside the Big Day Out, and also produces Double J’s weekly J Files podcast. Securing music rights means paying for those rights, and, says Burke, “that’s why a lot of everyday punters [making podcasts] or documentary audio producers aren’t going for the deep dive on some of the biggest albums. There’s definitely an audience for that, but it’s about who has the money to pay the artists for rights to the music.”

There are a couple of key points to grasp about music copyright in Australia [sound of passing car stereo, host shuts window] that help to explain why local podcast makers are largely prevented from using commercial sound recordings. The first is that two different types of “right” are present in a piece of recorded music: one, the right to the sound recording, which is generally held by the record label; and two, the right to the “underlying composition”, which is held by the publisher, who may or may not be the composer themselves.

It is necessary, dear listeners, to obtain permission for both rights – the right to the recording and the right to the composition – in order to use a piece of recorded music in a podcast. The alliance of the Australasian Performing Right Association Limited and the Australasian Mechanical Copyright Owners ­Society Limited (APRA AMCOS) collects money, through its licences, on behalf of music publishers. This covers the ­composition rights – though not all music publishers have arrangements with APRA AMCOS, further complicating the process. But this still leaves the issue of recording rights.

Let’s say that tomorrow I wake up and decide I want to make a podcast – not this podcast, another podcast – about [compact disc cases clacking] AC/DC’s Highway to Hell. I’m not the ABC or Triple M; I don’t have any existing music licensing agreements and, more to the point, I don’t have a huge amount of money for my podcast. 

I apply to [keyboard clicking] APRA AMCOS for an Online Mini licence, which covers various tiers of podcasting, in order to license my podcast, working title Back Seat Rhythm [host chuckles at own joke], which will feature less than 40 per cent music by duration, and which I anticipate will receive fewer than 110,000 downloads per year. Wow, this online licence is only $275 a year! A bargain. I’m ready for my deep dive into Highway to Hell. I might even have some change for snacks [packet of peanuts being opened] left over.

Then I read the fine print. [reads aloud] “If you are using sound recordings,” APRA AMCOS advises, “you will need to obtain licences from the relevant copyright owner: generally a record label, artist or digital aggregator.” Wait, what? [host coughs up peanut] But didn’t I just pay for a licence?

I did, but listeners, with my APRA AMCOS Online Mini licence I have only licensed the right to use original music – maybe I’ve written that music, maybe a friend has – or live performances that I’ve recorded with an artist’s permission, and if their publishing rights are covered by APRA AMCOS. The “sound recording” part of the music-licensing equation is covered by another organisation entirely: the Phonographic Performance Company of Australia (PPCA), which represents Australian record labels and recording artists.

Like APRA AMCOS, the PPCA negotiates licensing agreements with a range of organisations, including broadcasters, for the public use and performance of music. In the PPCA’s case, this is the right to license a commercial sound recording, rather than the right to license the underlying composition. But, unlike APRA AMCOS, the PPCA does not – to my knowledge – have a licence type that will cover independent podcast-makers for the use of commercial sound recordings.

In other words, if I want to play any of Highway to Hell on my hypothetical podcast, then I am still required to go, schoolboy cap in hand [deep sigh], to AC/DC’s record label and buy the rights to license the studio recording. And more than one person I spoke to described the process of rights negotiation with record labels – particularly the major labels – as [ominous organ chord] “a nightmare”.

This brings us to the second sticking point in Australian law: the legally narrow yet, in practice, definitionally vague exceptions to copyright infringement permitted under what’s called “fair dealing”.

There are only a small handful of contexts in which it is legally permissible to use copyrighted material in Australia without permission. One of these is for the purpose of “criticism or review”. For instance [rustles magazine pages] whenever I quote a song lyric in a piece of music criticism, I’m doing so under the legal proviso of fair dealing, without asking the rights holder – the song’s publisher – first.

The same exception could potentially apply were I to use extracts of commercially recorded music in a podcast, but my critical intentions would have to be genuine, and, as the Australian Copyright Council points out on its fair-dealing information sheet [reads aloud again], “Unlike United States copyright law, Australian law does not have a general fair-use defence to a claim of copyright infringement.” In other words, fair dealing is open to interpretation. The default position in Australia is that all uses of copyrighted material must be done with permission; the use of a fair-dealing exception may be challenged if a rights holder believes that an infringement has occurred.

Listeners, I must inform you that a number of myths and misunderstandings persist about fair dealing in Australia, including the notion that there’s a defined percentage of a copyrighted sound work that can be used without permission (there isn’t), or that it’s permissible to use extracts from copyrighted material if you’re not making a profit (incorrect). When it comes to my AC/DC podcast, I could go ahead and make it anyway, as a piece of audio criticism, but I’d still be on the hook for any legal challenge to my use [plays a 10-second extract from “Highway to Hell”] of copyrighted material.

As intellectual property lawyer Michael Tucak explained to me, with regard to fair dealing [hits “play” on interview recording], “Unfortunately, there’s not yet a lot of definitive case law, in terms of judicial interpretation of all the fair-dealing rules and what their real limits are.” Add to this the fact that podcasting is still a relatively new medium, and you have a situation in which no one – or at least, no one without deep pockets – wants their podcast to end up as the test case. [entire chorus of The Clash’s version of “I Fought the Law” plays loudly]

This state of affairs is satisfactory to the major record labels, which have commercially valuable catalogues to guard, and no financial advantage to gain by giving any old podcaster access to those catalogues. But the copyright status quo isn’t necessarily helpful to independent musicians, or small record labels, that might benefit from the publicity of having their music played and discussed on a podcast. In this situation, the onus falls on a podcaster to seek the rights to the sound recordings, track by track and artist by artist. And that’s exactly how my final guest, Paul Gough, makes his podcasts.

Gough is a musician, audio engineer, experienced radio broadcaster and self-described “nerdy obsessive music collector”, whose two music shows on Radio National, The Quiet Space and The Inside Sleeve, were cancelled in 2017, when the ABC axed almost all of the station’s music programming. [host hisses softly] For the past three and a half years, Gough has made The Quiet Place as a podcast for subscribers. An ambient music show, its format hews closer to traditional music radio – the show features full-length tracks – than to the discussion-based or narrative documentary form that many other podcasts take.

Gough goes about the time-consuming task of seeking rights directly from every artist he plays, which means that he mostly deals with people who self-release their music, or with very small record labels willing to grant him the rights permissions to their recordings. He holds one of the aforementioned APRA AMCOS online licences, and sends that organisation quarterly statements of his earnings from subscribers. As for the issue of charging listeners a fee for a podcast on which he’s mostly playing other people’s work, here’s what Gough had to say: “You’re not buying the music. What you’re buying is my curation.”

The goodwill that Gough built up through years of championing independent musicians on Radio National has helped him in seeking those rights permissions: to date, no one he has asked for permissions has turned him down. [pre-set sound of audience cheering]

Gough’s experience suggests that if an aspiring podcast maker can identify the particular music community that they wish to represent – both in terms of what will be played on their podcast and the audience they will seek – then it is possible to make a music podcast in Australia independently and above board. Go to it, listeners! But remember, it’s a bespoke approach, and one that can’t be used should the recorded music you wish to feature be the property of a major record label. In such an instance, you’re back with the fair-dealing provisions, and the risk [plonks coffee mug on desk] of being personally liable for any copyright infringement.

This is a shame, not least because podcasting is – or can be – a democratic media form. Don’t you think? The resources needed to record a podcast are [leans into cheap microphone, voice now slightly muffled] modest, certainly as compared to printing a newspaper or filming a television show, and that makes it a medium well-suited to enthusiasts, hobbyists and fans. Music zines, another fan-driven medium, once encouraged an irreverence of tone and a playful experimentation in form, and the same is true, in theory, of music podcasting. It’s less true in practice, because of the way in which copyright law creates a barrier to that experimentation.

I also suspect [outro theme begins to play] that the general absence of local music podcasts has a self-reinforcing effect: the fewer of them there are, the less likely a person is to think about the possibility of making one. The dominance of US podcasts, including podcasts about music, also focuses our attention on North American stories, and I do think there’s something worthwhile in exploring Australian perspectives on music, even if the music being examined isn’t itself Australian. We’re at the bottom of the world here [cicadas screech, lawnmowers rumble]: a geographically south Asian nation with a British colonial past. That’s a listening position I’d like to hear more ab— [microphone is switched off just a fraction too soon]

Anwen Crawford

Anwen Crawford was The Monthly’s music critic from 2013–21.

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