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Podcasts: Legal Issues and Podcast Rights Agreements

Podcasting is becoming an increasingly attractive medium to content creators. A Forbes report notes the year-on-year growth of podcast listeners in the US in the last four years, expected to increase further to 125 million Americans (aged 12+) listening to at least one podcast each month by 2022. Such growth has been mirrored in the UK, with the total number of UK podcast listeners in 2021 estimated to have surpassed 2020’s total by almost 20%.

For anyone seeking to start their own podcast, the following provides an introduction to some of the legal issues they may face.

– Podcast rights agreements
Owing to the vast growth in popularity of podcasting, many creators seek agreements with production companies to turn their intellectual property into podcasts.
For this, podcast rights agreements are necessary. These agreements establish the terms under which production will take place.

– The Digital Single Market Directive
o One new legal challenge may be the Digital Single Market Copyright Directive partially introduced in the EU.
o Whilst not directly relevant to the UK due to Brexit, those seeking to exploit their intellectual property in the EU should take note of this Directive.
o Since June 2021, creators have been afforded the right to ‘appropriate and proportionate remuneration’ for access to their intellectual property. This may involve subsequent increases to the initial fees paid should the podcast achieve greater success than originally forecast.
o Additionally, in June 2022 creators will also be entitled to ‘relevant and comprehensive information’ on exactly how their work is being exploited. This obliges production companies to be transparent with creators about podcast revenues, listener metadata and other information relevant to the status of the podcast.

– The complication of data protection
o Depending on the subject matter of the podcast, the General Data Protection Regulation (GDPR) may be engaged. Information deemed sensitive may be considered ‘special category data’ under the GDPR, requiring greater protection. Examples of special category data include political opinions, religious or philosophical beliefs, ethnic origin, health information, sex life and sexual orientation.
o Lawful processing of special category data involves a lawful basis (Article 6) and a condition for processing (Article 9).
o Also note that maintaining any form of mailing list or website will require GDPR compliance. Retaining any audience emails or permitting comments on the podcast’s website turns the podcast into a ‘controller’ of data for the purposes of the GDPR.
o Should this be the case, the controlling podcast must create a privacy policy explaining to their audience how their data will be processed.

– Use of copyrighted material (PM)
o Royalty-free music is an option from a number of large online databases.
o Alternatively, a podcast may license music.
 Smaller podcasts: Limited Online Music License gives access to the PRS musical library. Small is defined by the PRS as having an annual gross revenue below £12,500.
 Medium podcasts: Limited Online Music License Plus offers the same access to the library but is for podcasts with gross revenues between £12,500 and £200,000 per year.
 Larger podcasts: For podcasts grossing in excess of £200,000 per year, the General Entertainment Online License for medium to large online services may be more appropriate. PRS must be contacted for further information on the license fee.
o Within the podcast rights agreement it is recommended that a mechanism is included for the payment for and handling of copyrighted material.

– For further information
o We have specialist media solicitors who can help you navigate the complexities of broadcasting in the UK and assist with podcast rights agreements. For expert legal advice, contact help@bizlawuk.co.uk or WhatsApp us on 07583452230 and we can connect you to the right media law professional. Visit https://www.bizlawuk.co.uk to find out more about how we can help you with our other business services, check our 5-star testimonials and watch our Youtube channel or listen to our podcasts. If you find this information useful, please follow our social media platforms, like, and share.