Podcasts now know the tariffs that Sacem intends to apply in case of use of copyrighted music. Reactions to this first scale, which aims to clarify and simplify the legal framework, are nevertheless mixed.
Sacem (Society of Authors, Composers and Music Publishers) is a society whose mission is to collect money on behalf of its members when their works are disseminated to the public. In fact, it serves as an interface between the people who create music and those who want to use it. Today it has more than 169,400 members and manages a catalogue of 140 million works.
The site of the Sacem.
The rights that Sacem claims on behalf of its members concern works that are broadcast in the public space. This is true for radio and television, but also for music played in fairs, hairdressing salons, car parks, buses and waiting rooms. For each case, the Sacem provides for a type of authorization and an amount to be paid.
And now it’s podcasts that are concerned. These programmes intended for broadcast on the Internet and similar to radio programmes may use music to enhance their content, whether to sound a transition or to have a little introductory jingle. Or, simply because the podcast will broadcast copyrighted music.
As far as Sacem is concerned, the amount to be paid depends on the form of the podcast (associative or commercial), its economic model (broadcasting of advertising or subscription), the place occupied by the works in the podcast and some other parameters (royalty rate, minimum per subscription, origin of the podcast). A Sacem brochure presents the tariff grid for 2020.
The tariff grid for 2020. // Source: Sacem
These amounts obviously only apply if the podcast broadcasts music from the Sacem catalogue. This is what the copyright administration society reminded us on 23 January, explaining that this grid only applies to sound podcasts (not audiovisuals). To check whether the music used is managed or not by Sacem, a search tool is available.
And for those who were hoping to rely on the exceptions to copyright – through article L122-5 of the Intellectual Property Code – to get between the drops, thanks to the short quotation exception, it will be necessary to go back. “Even if you play two seconds of music, the royalty applies,” reports Podcastics, who attended the Sacem presentation. The short musical quotation is not recognized.
Essentially, it is a matter of giving a clear framework to podcasters and financial visibility, without fear of reprisals from Sacem, record companies or artists because copyrighted works have been used without authorization. There was a real expectation in the podcasting community, especially among industry professionals.
This is what Joël Ronez, co-founder and president of the podcasting company Binge Audio, points out on Twitter, for example, in reaction to the presentation of Sacem’s tariffs. “All podcasting professionals…have long called for agreements with collective management organizations for broadcast rights,” he wrote on January 23.
The founder of Binge Audio is very circumspect about the Sacem approach.
“We want these agreements not only because we respect collective management and authors, but also because we are obliged to do so: the authors we employ have entrusted their rights to these societies,” he adds. To illustrate this wish, Joël Ronez points out that he has been taking steps in this direction since 2016, notably with another management company, Scam.
Be careful though: these are not necessarily the only amounts that a podcast is likely to pay, on behalf of copyright. That’s what Joël Ronez points out: they “only cover songwriters, that is to say the credits and the music we have composed for our podcasts,” he warns. In order to play the song on a CD, another agreement would have to be obtained from another management company.
Since the publication of this fee schedule, cascading reactions have emerged on social networks, especially from people involved in podcasting. For Julien Baldacchino, journalist and host of the column Net Plus Ultra on France Inter, and who is active in the podcast, it is a “big ouf of relief“. The fee schedule is “accessible and reasonable,” he says.
The same goes for Geoffroy Husson, journalist at Frandroid (the media owned by Humanoid, owner of Numerama) who was producer of the podcast Kultur Breakdown from 2011 to 2015, broadcast notably on the webradio SynopsLive: “It’s a significant turn on the part of the Sacem. Some podcasters were willing to pay, but the Sacem never responded to their requests for information. »
SynopsLive, which was wound down in 2015, aired various programs for eight years.
He recalls that SynopsLive, when it operated, played royalty-free music, but that was disappointing in comparison to copyrighted productions: “There was a musical break in the show, usually mashups, original compositions found on YouTube or royalty-free music, so as not to conflict directly with Sacem. However, “the web radio wanted to pay for commercial music, to get more listeners. But Sacem’s rates at the time were exorbitant“.
It could indeed be a question of contracts worth several thousand euros per month, explains another podcast connoisseur. If Sacem could let it go, it would leave a significant pressure on the shoulders of podcasts, especially associative ones, which could have closed overnight because of too much financial pressure. A bill of 120 euros per year, in comparison, does not have the same impact, even on a small structure.
For Olivier Bénis, journalist and host of the programme La faute aux jeux vidéo on France Inter, the Sacem could not pull on the rope too much anyway. Excessively high tariffs “would be prohibitive for far too many creators“. Instead of legalizing practices, they would have pushed “the majority of them to throw in the towel or to say: I don’t care, I’m still illegal“. A dire prospect for which Julien Baldacchino had prepared himself.
However, all is not rosy, even if some agree that a framework now exists. Joël Ronez, in a long development on Twitter, points out the lack of consultation on this subject and considers that the French podcasting sector is faced with a “fait accompli”, with a scale “already voted by the board of directors“, even though disagreements remained.
The first problem, which is not directly within the remit of Sacem, is that the collecting society only covers authors and composers, and therefore covers credits and musical accompaniment specifically produced for podcasts. For commercially sold excerpts of music, “an agreement on neighbouring rights“, which is granted by another collecting society, would have to be obtained.
Beware of the music you remember, it might not necessarily be covered only by the Sacem // Source : TEDxBozeman
Except that these structures – the Société civile des producteurs phonographiques (SCPP) and the Société des producteurs de phonogrammes en France (SPPF) – which represent the studios, “do not have the mandate to grant you these rights for the moment,” warns Joël Ronez. It is certainly possible to contact the record company to sign an ad hoc agreement, but there is no guarantee that it will follow up on it.
Another grievance is the existence of treatment between radio and podcast. Joël Ronez explains: “In radio, [the broadcasting right] is managed by the legal licence: the radio puts the record it wants, the publishers cannot oppose it. In exchange, [the Manager] receives a percentage of the revenue base, approximately 6%. In all, it amounts to nearly 12%: 6% for authors (Sacem, Scam, SACD, ADAGP, Adami) and 6% for publishers.
What about podcasts? It amounts to 16.5%. Why? Because the maximum rate is 12%, plus the fees for the other management companies (Scam, SACD), for a total of 16.5%. And again,” continues Joël Ronez, “that doesn’t even include the rights of the publishers. In short, “we are taxing the new generation of digital talent twice as much as a heritage medium whose model is in decline.
To make listening more enjoyable, it is not uncommon for a podcast to add music sequences to its program. // Source: Adobe
For Binge Audio’s founder, part of the reason for this is that these scales were developed to “target the portfolio of foreign large-cap platforms“. Except that, in doing so, it is “the independent production sector and French platforms that is taking a lost ball“, even though this sector is “in its infancy” and needs a framework that does not handicap it.
And to hammer the nail in: “Being in a monopoly situation, Sacem has to consult before imposing tariffs, because there it did not even pretend to do so“. The fee schedule was dropped “in the middle of a negotiation“, putting “everyone in front of a fait accompli”, he continues. Sacem, for its part, talks about “a real price reflection on podcasts and we are adapted to new uses“.
At the moment, an arm wrestling match is taking shape. “It is out of the question to sign these agreements as they stand without a real negotiation,” concludes Joël Ronez.