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Articles

Negotiating platformisation: MusicTech, intellectual property rights and third wave platform reintermediation in the music industry

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Pages 326-343 | Received 09 Jun 2021, Accepted 21 Dec 2021, Published online: 18 Mar 2022

ABSTRACT

The music industry is a frontier sector of platformisation. Having undergone two previous waves of platform reintermediation in the form of peer-to-peer networks and streaming platforms, a third wave of platform reintermediation is now underway, as a constellation of MusicTech start-ups, fuelled by angel investors and venture capitalists, experiment with digital technologies allowing users to consume or create music in novel ways. Drawing on interviews with key actors in London and Stockholm, we reveal that an accommodation between tech disruptors and industry incumbents was achieved during the second wave of platform intermediation. However, emerging links between incumbents and MusicTech start-ups in the third wave are overshadowed by a chronic tension that is constituent of intellectual property capitalism and amplified by the legacy effects of preceding waves of platform reintermediation. The ownership of intellectual property confers significant advantages to incumbents when challenged by platform incursion, with copyright assets robustly asserted through publishing rights and defended in law. Set in this context, our examination of the music industry as a pioneer platform industry entering a new wave of platform reintermediation reveals key challenges for both incumbents and start-ups in other sectors of the economy as they too enter broader processes of platformisation.

Introduction

In an opening keynote at the Music Week Tech Summit in London in 2019, Adrian Pope, Chief Digital Officer at the music company PIAS, a family of independent record labels, argued that the relationship between music and technology – or ‘tech’ in its vernacular use – was more collaborative than ever. He stressed that unlike the period from the late 1990s onwards, when the competitive bases of the industry were transformed following the growth of unlicensed file sharing through peer-to-peer (P2P) networks, an accommodation was emerging between tech firms and traditional music industry companies in building mutually beneficial business models. This statement resonates with wider narratives developing in the music industry around the growth in digital music revenues, the transformative power of tech and its potential to create a buoyant and sustainable digital music industry in the twenty-first Century (see, for example, DIT Citation2018).

The music industry has a long and complex relationship with technology, and for much of its history managed successfully to harness innovations in recording and playback formats, from vinyl records through tape cassettes to CDs, to first protect but then to increase revenues derived from the intellectual property rights held in sound recordings and music publishing. From the late 1990s onwards, this productive engagement with technological innovation broke down as MP3 file sharing mediated through prototypical platforms manifested as peer-to-peer (P2P) networks (David Citation2010) that fundamentally challenged the music industry's ability to reproduce itself by dramatically reducing revenues from the sale of recorded music, hitherto the sector’s main source of income (Garafolo Citation1999, McCourt and Burkart Citation2003, Graham et al. Citation2004; Leyshon Citation2014). The threat posed by an open digital file format was partially abated in the early 2000s by the rise of new pay-to-download services such as iTunes (Arditi Citation2015), before disruptive innovations in music streaming technologies presented a novel set of technological challenges to the industry (Barr Citation2013, Watson Citation2015). Streaming first stemmed then reversed the decline in revenues from recorded music, but it also reconfigured the music industry. The success of Spotify is indicative of changes in the way in which consumers purchase music, representing a shift from paying for ownership of a music library to, instead, paying – either directly, through a subscription, or indirectly, through exposure to advertising – for access to a much more extensive archive (Arditi Citation2018). Bustinza et al. (Citation2013, pp. 18-19) describe how the shift to streaming represents ‘a theoretical shift in understanding what music retail is, presenting music to consumers not as a product but as a service’. As music distribution was decoupled from physical formats in the ‘post-record music industry’ (Negus Citation2019), music-related industries became less focused on selling the ownership of recordings and increasingly focused on offering conditional access to digital catalogues of recorded music through the rents paid to music streaming platforms (MSPs).

The music industry was a pioneer sector for processes of digital transformation and a process that, borrowing from Langley and Leyshon (Citation2021), we describe as ‘platform reintermediation’. This process first destroyed and then rebuilt a music industry business model based on the exploitation of music rights. MP3 is an open format, which lowered barriers to entry, and which facilitated the first wave of music industry platform reintermediation in the form of P2P networks (Leyshon, Citation2014), that (illegally) inserted themselves between artists and record companies on one side of the market for recorded music and audiences on the other. In the second wave of platform reintermediation music MSPs helped to close the open playback format as users are only able to access music through the platform. With the music industry more or less stabilised around the streaming format – notwithstanding significant tensions and disputes about the equity implications of streaming platform revenues (Hesmondhalgh Citation2020, Leyshon and Watson Citation2021) – new rounds of innovation are blurring the lines between the music and tech industries, spurred by recent technological transformations including, inter alia, social media, streaming, user-generated content, interaction, community content-sharing and collaboration, location-aware technologies, and the appetite of angel investors and venture capital firms to fund new technologies and business models that might further disrupt existing industries. Such firms have come to be labelled as ‘MusicTech’, mirroring the use of the suffix ‘Tech’ to describe innovation in other areas of the economy, such as FinTech and HealthTech.

Thus, a third wave of platform reintermediation in the music industry has been driven by an emergent MusicTech sector, which is characterised by entrepreneurial activity and technological innovation taking place largely outside the major music companies, in areas such as music production, publishing, consumption, and distribution (see Dumbreck and McPherson Citation2016). These firms are developing applications that seek new ways to intermediate between artists, music corporations and audiences, and in so doing to generate new revenue streams and a more complex and diverse music industry ecology.

While the term ‘MusicTech’ first emerged following the emergence of platforms such as Apple’s iTunes, Spotify, Shazam and Soundcloud in the early 2000s, the post-streaming stabilisation of the music industry gave rise to an explosion of small, highly innovative start-up firms building platforms, services and apps targeted variously at the production, distribution, and consumption of music in the streaming age. The emergence of the contemporary MusicTech sector can be seen as the next stage of the evolution of an industry in which a small number of existing incumbent corporations, together with the now established MSPs, and a much larger number of independent record labels, intermediaries and MusicTech start-ups, are all engaged in processes of ‘platform reintermediation’ (cf. Langley and Leyshon Citation2021).

The academic literature on tech start-ups often asserts that start-ups act to challenge the dominance of incumbents through disruptive innovation, as the legacy business models of incumbents plus inertia provide opportunities for new entrants to gain rapid momentum in the marketplace (Crittenden et al. Citation2019). However, with the music industry having recently gone through a series of disruptive innovations, and even more recently stabilised around digital formats (Leyshon Citation2014, Hesmondhalgh Citation2020, Leyshon and Watson Citation2021) distributed through a small number of dominant MSPs, MusicTech platform reintermediation has led to firms not challenging but aligning themselves with, and contributing and innovating in relation to, existing incumbent corporations and platforms. This includes, for example, creating complimentary platforms, data applications or content production, etc. Thus, competition in the contemporary platform musical economy centres on start-ups gaining attention from music industry incumbents. Very few MusicTech firms appear to be developing disruptive technologies which would challenge the dominance of the incumbents per se. As such, MusicTech resembles a process of open innovation, where start-ups offer themselves up as potential partners with incumbents to source new innovations and technologies (De Groote and Backmann Citation2020). The actions of incumbents in cultivating a wider ecosystem to draw in the necessary disruptive innovations and innovators to expand their platforms – for example, through the release of public Application Programming Interfaces (APIs) – and preferentially lock-in developers, is a strategy seen in other areas of the economy where hitherto dominant firms have been threatened by disruptive tech starts ups (see for example Hendrikse et al. Citation2018, Citation2019, on FinTech).

In this paper, we draw upon interviews with key actors in MusicTech ecosystems in London and Stockholm to provide the first detailed qualitative examination of the complexity of the relationships between the large number of innovative start-ups and the small number of major corporations that are the oligopolistic incumbents of the music industry. Our central argument is that the complexities of this relationship pivot on a key tension between these two groups of actors. On the one hand, large corporations seek to protect the publishing rights to recorded music, which are their most significant financial asset. Indeed, exercising oligopolistic control over these intellectual property rights assets has enabled the large record companies to become the key rentiers of digital networks, subverting the power of platforms. On the other hand, music start-ups seek to secure licencing arrangements for copyrighted material from music asset holders or obtain their support in other ways for innovations in order to secure investment and generate growth. We demonstrate the difficulties that MusicTech start-ups encounter in developing relationships with the major corporations. We focus on the problems faced in forging agreements on access to copyrighted material, arguing that the investor-driven boom in MusicTech start-ups has created an industry that is inundated with technical innovations that seek to add value to the music industry more broadly but which are largely resisted because they do not align with the corporate strategic goals of incumbent oligopolists. Set in this context, this analysis of the music industry as a pioneer platform industry entering a third round of platform reintermediation reveals key challenges that might also be faced by incumbents and start-ups in other economic sectors undergoing platform reintermediation.

Accordingly, the remainder of the paper is organised as follows. Part 2 considers the central role of intellectual property rights in the music industry as a rent-generating asset and how this was affected by successive waves of platform reintermediation from the late 1990s onwards. Part 3 focuses on a third wave of platform reintermediation as MusicTech start-ups developed new ways of generating revenue from music assets through new forms of platform reintermediation. Part 4 reveals a central tension in this third wave of platformisation, which was a product of the power afforded to music corporations through their control of IPR. Part 5 concludes the paper.

Platforms, incumbents, and intellectual property in the music industry

One way of telling the story of the music industry over a 40-year period is to see it as a process of stratigraphic evolution, based around shifting formats, with per capita sales peaking first in the late 1970s predicated on vinyl sales, and then again in 1999 after a nearly 20-year increase based almost entirely on the sales of compact discs. The subsequent decline of the music industry in the early twenty-first century is now well documented (for example, Rogers Citation2013, Leyshon Citation2014, Arditi Citation2015, Morris, Citation2015). In short, the rise of MP3 as a playback medium diverged significantly from previous format changes. Traditionally, as in case of compact disc for example, the music industry organises to first resist new formats but then negotiates with large technology companies to ensure that the format does not undermine returns on intellectual property rights in sound recordings (Knopper Citation2009). MP3 was an ‘accidental format’, developed as an open compression programme for work on interactive television, which escaped into the emerging online worlds of software programmers and hackers. As there was no originator technology company with whom to negotiate and challenge, the format was quickly adopted by an array of rapidly changing peer-to-peer (P2P) networks. Funded by venture capital, these ‘proto-platforms’ constituted the first wave of platformisation in the music industry, operating mainly as illegal digital intermediaries, offering the promise of free access to music catalogues so as to attract users to their networks, from which they sold advertising – and, in some cases, malware – which generated revenues for network owners. But revenues for the holders of music rights went into a precipitous decline as P2P networks used copyrighted material without permission or recompense. This decline was only addressed by the music industry negotiating with large technology companies to reset platform reintermediation on more favourable terms. First, Apple’s iTunes store, which began trading in in 2004, built on experiments by firms such as eMusic to allow customers to buy MP3 downloads, which allowed rights holders to be paid. This was shortly followed by the emergence of streaming platforms, as firms such as Spotify, Deezer and Apple Music developed revenue-generating business models. The business model of MSPs requires access to the catalogues of recorded music owned by large music corporations, the depth and breadth of which are used to recruit users from whom revenues can be extracted through subscriptions or advertising (Arditi Citation2018). Based on such a model, MSPs have demonstrated that they can generate significant revenues (although largely, as yet, no profits) through intermediating between music and audiences. In 2016 revenues in the music industry increased for the first time in nearly 20 years (Krueger Citation2019, Hesmondhalgh Citation2020). By 2019 total global revenues had returned to levels of the mid-2000s (IFPI 2020). Revenue recovery across the industry was largely dependent on the income generated by streaming services, which became the dominant mode of music distribution. Between 2016 and 2019 music revenue growth averaged 8% per annum, with streaming revenues accounting for over 56% of total industry revenues.

The advance of the major steaming platforms constituted the second wave of platform intermediation in the music industry, and is a good demonstration of how ‘firms that exploit customer-driven technological desires can transform a market or an entire industry’ (Crittenden et al. Citation2019, p. 260). Yet, MSPs operate within a highly oligopolistic industry with a very small number of incumbent corporations that prioritise intellectual property protection. The rise of digital music distribution platforms has led to claims of structural and organisational inertia amongst the major corporations and overestimation of their power (Negus Citation2019), while revolutionary narratives have pointed to the possibilities of the democratisation of music production and consumption (c.f. Carter and Rogers Citation2014), and predictions of even more radical processes of disintermediation (for example see Chalmers et al. Citation2001, O’Dair and Beaven Citation2017, on blockchain technologies). However, at the time of writing the major label system remains intact: just three major corporations – Sony Music Group, Universal Music Group, and Warner Music Group – that by 2020 controlled an estimated 68.6% global market share of combined physical/digital revenues (Music and Copyright Citation2021) and owned an estimated 8 million songs (Music Business Worldwide Citation2015). Certainly, the platformisation of the music economy has, as Negus (Citation2019) notes, drawn the music corporations into tensions with ‘BigTech’ digital conglomerates and MSPs. However, platforms have not displaced the music industry incumbents; rather, the two sets of corporations have become bound together through a system of rent extraction (Meier and Manzerolle Citation2019). Christophers (Citation2020, p. xxiv) describes rent as ‘income derived from the ownership, possession or control of scarce assets under conditions of limited or no competition’. In industries centred on the ownership of intellectual property, IP rights owners can secure monopoly powers over their assets (Christophers Citation2020). This, and the volatile nature of the market for music, has encouraged the formation of a very powerful oligopoly in the market for musical intellectual property. In this regard, the steadfast ownership of music rights exercised by incumbent music corporations means that it is they, not streaming platforms, that hold the balance of power. Indeed, the rise of MSPs have allowed large music corporations to better marshal rents from their assets. In many markets, platforms seek entry to take advantage of their ability to become key intermediaries in multi-sided markets, to become rentiers of the network (Langley and Leyshon 2017). In the platformed music industry rent takes the form of the license fees paid by MSPs to the corporations. MSPs face a powerful oligopoly with whom they must directly negotiate rights agreements to access the most commercially successful music on their platforms, for which they act as an intermediary, allowing audiences access in return for a subscription fee (or otherwise be exposed to advertising, which also generates income for the platform). It is from these fees MSPs pay for the licences granted by the music corporations.

For Christophers (Citation2020, p. xviii), business models based on rentierism is a kind of ‘balance sheet capitalism’. In the contemporary music industry, the role of recorded music on the balance sheet differs between its major corporate actors. For the large music corporations, their back catalogues of copyrighted music are incontrovertibly seen as assets, which generate income through use, either through sales of licensing agreements with other media organisations or streaming platforms. However, for the streaming platforms, while access to these back catalogues certainly serves as business-critical asset, by generating income for each stream initiated by users, it is also a liability, as platforms are obliged to make rental payments to rights owners for each stream. In this regard, the accumulation and maintenance of a population of users that will pay a regular subscription represents an important asset to streaming platforms (Leyshon and Watson Citation2021). This is reflected in the innovations in user interfaces and services that are designed to keep audiences engaged and subscribing (see Hagen Citation2015, Eriksson et. al Citation2019). Furthermore, the major record labels have used their incumbent position within the industry to negotiate preferential licensing agreements with, and acquired equity stakes in, a range of streaming platforms and companies (Negus Citation2019). In the case of Spotify, for example, the three major corporations together control about two-thirds of its streaming catalogue; if combined with Merlin – a digital rights agency for independent record labels with a membership of some 20,000 independent record labels and distributors – four organisations hold the rights for the music that makes up 87 per cent of Spotify’s streams (Simon Citation2019). This has further strengthened the position of the major music corporations as industry incumbents. While MSPs continue to post significant net losses despite significant increases in paying users (figures from Statista (Citation2020a; Citation2020b) for Q3 2020 show that Spotify premium had 144 million subscribers, while in June 2020 Apple Music had 72 million subscribers), the record label oligopoly has reaped significant profits from the digital music boom. This, as Meier and Manzerolle (Citation2019, p. 555) argue, is demonstrative of how platform accumulation ‘is structurally biased to support existing capital’.

Music rights represent intangible assets that allow lead firms to enhance their market power, restricting the use of music as an intangible asset both within production and consumption (Durand and Milberg Citation2020). Intellectual property aims to create an artificial monopoly over these assets to enable the capture of monopoly rents (Montgomery and Potts Citation2009). As Meier and Manzerolle (Citation2019, p. 548) argue, although users of streaming services have access to a seemingly non-depletable resource (music), ‘copyright regimes are used to (attempt to) maintain artificial scarcity’, and in this way, legal monopoly rents artificially ration the use of the protected intangible asset (Durand and Milberg Citation2020) as a ‘pure source of rent and distortion’ (see Montgomery and Potts Citation2009, p. 247). This is an example of what Pagano (Citation2014) has termed ‘intellectual monopoly capitalism’ where monopoly is not only based on market power due to skills and management, but a legal monopoly over some items. In this case, intellectual monopoly infers the right to control subsequent use of music as exercised through ‘downstream licencing’, as opposed to the right to own and sell music (Boldrin and Levine Citation2002).Footnote1 Furthermore, as the focus of value generation has shifted towards driving users towards MSPs, entrenched commercial and promotional logics have persisted, and the star performers receive the lion’s share of promotion and attention (Meier and Manzerolle Citation2019). The rights of these artists tend to be controlled by the major corporations, and a very small proportion of all the music available on MSPs generates most of the streams generated; in 2017 99% of a total 377 billion streams came from just 10% of the tracks available (Digital Music News Citation2018). This asymmetry is likely to increase over time, given that there are an estimated 55,000 new songs added to streaming services each day (Page Citation2020), which means that tracks are more than likely to lose the battle for attention (cf Wu, Citation2016). The power that the major corporations exercise over their catalogue gives them significant control over streaming platforms as ‘choke-points’ of digital music distribution.

Musictech, copyright and innovation

How to make sense of the types of market or exchange that have been subject to platform reintermediation in the music industry? provides a typology that attempts to position both established and nascent platforms from MusicTech start-ups in relation to these market domains. The ‘overarching framework’ of platform reintermediation in the music industry has two key elements. First, there are online exchange markets, which are centred upon MSPs, several of which have preferential licensing arrangements with incumbent corporations, while others are part-owned by the majors. MSPs represent a fundamental shift from ownership to access models as the dominant channel of delivering recorded music to consumers (Barr Citation2013). Second, there are the social media platforms, which function as ‘one of the most prominent domains of the new form of digital economic circulation’ (Langley and Leyshon Citation2017, p. 16). In terms of the music industry, both domains provide platforms for the distribution and creative use of music and generate significant audiences for music.

Table 1. Platform reintermediation in the music industry (after Langley and Leyshon, Citation2017, p. 16).

In common with platform capitalism more broadly, firms in MusicTech can broadly be divided into those firms focused on providing business-to-business (B-2-B) technological solutions, and those producing new technological innovations aimed at consumers (B-2-C). However, while some B-2-B innovation focuses on providing services for record labels, most innovation is primarily focused on B-2-C, which in the case of the music industry includes both producers (music artists, producers and engineers) and consumers of music (listeners, as well as other creatives wishing to licence music). Alongside record-label facing and artist-facing domains, two more music industry-specific domains include platforms innovating in the areas of live music and music rights, which blur the B-2-B/B-2-C distinction.

The emergence of a MusicTech sector made up of mainly small, entrepreneurial start-up firms can be seen as the next stage of the evolution of an industry not only experiencing platform reintermediation but also operating on reduced budgets – due to the long-term decline in revenues – and the loss of technical expertise, due to corporate retrenchment in the era of declining overall revenues, within the incumbent major corporations. Innovation that might previously have been undertaken internally has effectively been delegated to start-ups and scale-ups (Simon Citation2019). In their study of the financial industries, Langley and Leyshon (Citation2021) argue that rather than enhancing competition in existing retail money and financial markets platform reintermediation seeks to produce new market structures that will secure oligopolistic and monopolistic positions. However, unlike the financial industries, the music industry has already transitioned out of its major phase of disruptive innovation and platform arrangements have stabilised around a small number of MSPs and major rights owners, with music constituted as a service.

Subscription-based streaming has delivered a model of digital distribution around which the industry can more or less stabilise and has changed understandings of the relationship between music and technology (Arditi Citation2018). The broadly positive coverage given by music industry media to firms innovating in MusicTech, and the prominence of MusicTech start-ups at music industry trade events such Midem and the Music Week Tech Summit, can be understood in this context. MusicTech also figures within wider policy narratives developed around the importance of technological innovation across a range of sectors (such as ‘BigTech’, ‘FinTech’, ‘InsurTech’, ‘RegTech’, ‘MedTech’ and ‘HealthTech’, etc.). Government organisations have been quick to promote particular cities or even their national music industries as ‘leading’ centres of MusicTech innovation. In the UK, for example, a Department for International Trade report, British Music Innovation (DIT Citation2018), offered a compelling account of a revitalised music industry embracing technological innovation and showcased several start-ups to demonstrate the ‘global impact’ of UK MusicTech. Similarly, Invest Stockholm, the city’s official investment promotion agency, published Stockholm – the Powerhouse of Sound (Stockholm Business Region Citation2016), a report which advertised the city as ‘the world’s MusicTech capital’, similarly drawing attention to locally-based MusicTech start-ups.

The management of intellectual property rights has been at the core of the music industry’s legacy business model, where such rights are key strategic assets (Simon Citation2019). Indeed, of all the industries based on extracting rents from IPR, the music industry is perhaps most closely associated with the argument that robust copyright protection must be maintained to ensure both economic survival and to make a wider economic contribution (Montgomery and Potts Citation2009). Such has been the perceived importance of rights that the industry contested numerous, often highly aggressive, legal battles with P2P networks and individual users (see Easley et al. Citation2003, Bhattacharjee et al. Citation2006, Choi and Perez Citation2007). Strong political lobbying by the industry led to bills that focused on the exchange of copyrighted works over peer-to-peer networks and criminalising of circumvention of digital rights management (DRM) protection measures being passed into law. As Simon (Citation2019) notes, this legal recourse was result of a perceived attack on the very economic foundations of the industry. It was, he argues, nothing less than a:

fight to keep an outdated business model, to protect the existing streams of revenues. This is a standard behaviour whenever an industry comes under attack through profound changes in the market (Citation2019, p. 540).

Intellectual property remains a key strategic asset in a digital era of ‘unending consumption’ (Arditi Citation2018). While digital music seems to be a non-depletable resource, copyright regimes are used to maintain artificial scarcity, updating an industry tactic more easily managed in an era of physical music commodities (Meier and Manzerolle Citation2019). This situation was recognised by an interviewee, a co-founder and CEO of a music rights start-up:

There is an intrinsic model in the music industry which is that they’ve always traditionally monetised scarcity. That’s why they’re very nervous about this ongoing democratisation, [it] doesn’t sit well with them; they used to own the supply chains and the manufacturing and the distribution and now all they own is the sound. And that worries them … they want to try and keep it scarce, control the flow of it. (Interview 4, co-founder and CEO, music rights start-up)

Start-ups entering the music industry thus found themselves not only faced with a complex licensing landscape, but also one in which incumbent corporations were willing to fight to protect their main asset – their control over intellectual property. Within the innovative ecosystem of MusicTech start-ups, it was the B-2-C start-ups that were most exposed to the limitations and challenges imposed by the oligopolistic intellectual property arrangements of the music industry. This group included both start-ups that wished to licence music directly as content on platforms, such as streaming services, and firms that sought to provide innovative solutions for licencing purchasing, especially for use on social media where platform users wish to licence music for user-generated content (for example, creating YouTube videos). In the case of the latter, interviewees in these businesses argued that their platforms would be able to provide income for labels from rights which they are currently unable to exploit themselves due to a lack of appropriate technologies to issue and monitor licences for the use of music on these platforms. Nevertheless, agreeing licensing deals with the major corporations was challenging. In theory, many start-up platforms could avoid licencing music from the major corporations, and instead seek to agree licencing arrangements with independent publishers or even directly with artists. However, the users of these platforms – which include those who wish to licence music for use as part of user-generated content on social media, or as part of other creative projects and events such as sports and performance events – expect to be able to use and licence music from the most popular artists, which tends to be controlled by the major corporations. This is illustrated in the comments of the founder and CEO of a music rights start-up that offered licencing of music for events, who explained the difficulty of obtaining rights:

Because we don’t have top 40 hits or the popular content, we’re playing this chicken and egg game. So the music industry is just like, “Oh well, we need to know revenue figures”, and I’m just like, “You need to give me your music and then I can make money from your music. But until you give me that, I’m telling people [users of the start-up’s platform] that they need to license music that they’ve never heard of”. (Interview 16, founder and CEO, music rights start-up)

This example is indicative of a broader problem. When interviewees were asked about the key barriers to start-up formation and growth, a recurring issue was the ways in which incumbent music corporations policed and enforced intellectual property, including their recourse to legal action. The founder and former CEO of a live experience start-up revealed how the major corporations exercise their power:

No one’s done rights for the internet age properly yet … The legal structure around copyright is just an utter shit show, and is kind of wielded to great effect by the majors who have lots of money and … so if the majors don’t like what you’re doing, they’ll shut you down … But that’s unfortunately how they play. They’re on such tight margins these days, it’s ‘litigate first and play nice later’. (Interview 5, former founder and CEO, live experience start-up)

Indeed, difficult relations with publishing departments of major corporations and the involvement of lawyers was raised by several interviewees. In many cases, start-ups had successfully developed relationships with record labels and marketing teams within the corporation,Footnote2 only to find that once the potential innovation/collaboration was passed onto the publishing or legal department it was blocked. Many start-ups and major labels found themselves in a position where they wanted to do business, but the publishing department refused to create a licence, either because it was judged to be too risky, too difficult, or ‘impossible’. Such a situation was described by one of our interviewees as follows:

The problem with the majors is that if you talk to anyone outside of [the] legal [department] they love you; they love what you’re doing … we had really good relationships with the marketing teams at [major corporation] … But as soon as it gets big enough [to get to the stage] where the lawyers get involved, it’s either a lawsuit or it’s just, “No way, we can’t do it, it’s too complicated”. (Interview 4, CEO, Music Rights Start-Up)

There was an issue not only with the willingness to issue licences, but also with the availability of appropriate frameworks for licencing in a digital age. The CEO of an AI music start-up, for example, described how they were not able to secure the rights needed that would allow users to edit and adapt music on their platform because the rights that might allow this practice simply did not exist: ‘I’d have loved to [have] done the licences but you couldn’t buy them, they weren’t set up to do this in such legacy companies’ (Interview 17, CEO, Artificial Intelligence Start-Up). In one case, senior executives in major corporations advised a start-up to purposively breach copyright to trigger a legal test case that might resolve once and for all the copyright issues preventing a deal:

… we were speaking to the senior vice presidents of Sony, Universal and Warner. And they were all saying, “Well, we don’t even have a department to send you to for this stuff”. The guy at [major corporation] said, “Look the best thing you can do is just release this, then we’ll sue you but then at least you’re connected to the legal team that would deal with this. And then out the back of that we’ll do a deal, we can sort it out”. (Interview 17, founder and CEO, music creation start-up)

Unsurprisingly, this was not seen as a practical solution by the start-up. Even in cases in which majors offered licencing arrangements, the up-front cost of these deals was prohibitive for many small start-ups. One interviewee, a co-founder of an A&R start-up, forcefully expressed frustration at the barriers to entry imposed by large rights owning organisations:

… the licensing mindset has been, “Fuck you, pay me”. It’s been, “Sure … here’s the minimum guarantee, $200 million”!Footnote3 And we say, “What?! But can’t we just try to see if we can scale, and you will have your revenue share?” and they are like, … “No, if you want our catalogue, it’s this much in minimum guarantees. If you can’t fix that, we won’t give our catalogue to you”. (Interview 22, Co-Founder, A&R Start-Up)

Several other interviewees also discussed the prohibitive pricing of music licences for start-up firms. One interviewee – a former founder and CEO of a live experience start-up (Interview 5) noted that ‘you’re not going to build a B-2-C proposition without very, very deep pockets’. He described, for example, how the company received a bill for €250,000 from a major corporation alongside an accusation of copyright infringement, which in turn generated additional costs through employing a legal team to contest this and negotiate licencing:

“it’s very grey, copyright … we had the best music rights lawyers that money could have, and it got us as far as we needed to do, but for someone that couldn’t afford a £600 an hour lawyer, it’s just not going to happen”. (Interview 5, former founder and CEO, live experience start-up)

Another interviewee noted how:

… if you’re an innovator to consumers, you’re always going to be beholden to the major record labels who have the music that the consumers want. So, they’re always going to make it really difficult for you, only because they’ve been burnt so many times … It takes a lot of money to invest in a start-up, to pull all of your music over … do all the payments, to do the negotiation, do the contracts. If a company hasn’t got 25 million quid, they haven’t got the ability to be able to do those deals, they’ll go bust. (Interviewee 10, CEO, Independent Music Publisher).

Here we see reference to the collective institutional memory within the music industry that remembers all too well being ‘burnt’ by the damage done by P2P platforms in the first wave of platform intermediation, and which explains the defensive stance taken over intellectual property rights. Start-ups with limited funding are unable to obtain the necessary licences required to access music assets. For some Music Tech start-ups their first wave of external fundingFootnote4 might be conditional on licencing agreements already being in place, so the unwillingness of established music corporations to provide licencing solutions can prevent access to the funding needed to get the business off the ground. As Andersen et al. (Citation2007) note, while large scale changes to copyright law would require complex collective action through government intervention, less complex individual action could be undertaken between industry players which could potentially harmonise the needs of technological innovators with existing copyright frameworks. A potential solution here would be the use of the ‘sandbox’, mirroring those created in the FinTech sector, a protocol which enables start-ups to test innovations in the market with actual customers under strict conditions and monitoring. The first FinTech sandbox was created in the UK in 2016, and has since proven successful to the degree that it has been adopted across multiple regulatory environments (Truby Citation2020, Wójcik Citation2020). As one of our interviewees argued, ‘some sort of [MusicTech] sand box agreement would be really helpful to everyone that’s got an idea and wants to innovate’. (Interview 4, CEO, Music Rights Start-Up). While music industry sandboxes have been trialledFootnote5 major corporations appear to be reluctant to enter into a wide-ranging sandbox agreement for MusicTech firms. The reasons for this include: the desire to maintain artificial scarcity; potential reputational damage from the use of a label’s music in a low-quality application, and; the difficulty inherent in transferring a start-up to a full licence if its business model might not be viable under currently licencing regimes (Music Ally Citation2019). Furthermore unlike in FinTech where Central Banks encourage and facilitate sandboxes, there is no such overarching regulatory authority in the music industry.

The majors as ‘innovation resistant’?

Given the difficulties faced by start-ups when working with major corporations, several interviewees were critical of the understanding of the situation facing MusicTech start-ups within the large music corporations. One CEO noted that:

“The labels don’t really have any empathy for what it takes to run a start-up, and the risk you’re taking and the investment you’re putting and the livelihoods you have on the line. They could send you broke. Just through bureaucracy”. (Interview 4, CEO, Music Rights Start-Up)

There was a sense amongst participants that while the departments of the music corporations that are initially tasked to liaise with start-ups are open and responsive to innovation, they are ultimately restricted by the bureaucracy of the legal frameworks that surround rights. Moreover, from the perspective of the majors, engaging with emerging MusicTech businesses can be problematic. One reason was capacity. For one interviewee, a Commercial Director at a major corporation, there was no shortage of willingness amongst the majors to be innovative. The problem lay elsewhere:

… first of all … internal resources. There aren’t that many people who have the skillset to go out and make the deals and also evaluating them properly. (Interview 25, Commercial Director, Major Corporation)

While major labels often employed staff with appropriate skills sets around innovative technologies – often those within specialised ‘tech’ teams within labels – the huge amounts of data being provided from streaming and social media platforms requires significant resource to analyse. As another interviewee from a major corporation put it, ‘Most of the tech team’s time at the label level is taken up with Spotify, as well as Instagram, Facebook, etc.’ (Interview 8, Director of Policy, Major Corporation). Recent research into the use of metrics and decision making by Maasø and Hagen suggests that this has been a significant challenge for major labels, which has led them to gradually built up dedicated global analytics teams, of often hundreds of people, so that ‘major labels are dominating the metric race’ vis-à-vis independent labels and artist services, with major labels having ‘the resources and skillsets to interpret this data in ways that others do not’ (Citation2020, p. 29). Yet, while this may be the case, the significant amounts of new data being provided means that major labels must allocate significant capacity and resources, allowing little time for appraisals of other kinds of external innovations.

A second and related issue is one of being able to communicate in the right manner with the major labels. There was a broad sense amongst both major label interviewees and those start-ups who had been successful in developing relationships with the majors that many start-ups lack sufficient connections in, or cultural understanding of, the music industry. Amongst the start-ups interviewed, we found a mix of businesses that had been started by an entrepreneur with a background in the music industry and those who had been started by those with a background in tech or another area beyond music. Very rarely did individual entrepreneurs have experience across both domains:

Well, the difficulty I think in … tech and music is … you either get the music people who … have a background in tech, or you get the tech people who don’t really have anything in music, and you need to kind of have someone who has the understanding of both … I’ve advised for some companies who are trying to start up, tech people trying to start these music companies, and they don’t understand the intellectual property … like it’s great to innovate but … essentially your business is almost always going to be tied to whether or not the majors are going to sign up with you. (Interview 16, CEO, Music Rights, Start-Up)

Interviewees recognised that MusicTech start-ups needed at least one key person able to act as a ‘bridge’ between the start-up and the large music industry companies. Accessing the relevant people within the music industry, and knowing how to communicate in appropriate terms, was often acknowledged as a problem within many MusicTech start-ups. As one interviewee put it:

… if you don’t have those relationships or you don’t understand how to talk the talk, you’re going to really struggle. Because they’re very protective and very sensitive with their rights and, yeah, if you’ve got someone who just walks in, “Hey, I have this whole business idea and this is how it’s going to work”, they’re just like, “Well no, we can’t do that, we don’t have the rights for that or you’re going to run into this, this and this complication”. I think that’s probably one of the biggest issues for more tech-focused rather than music-focused start-ups. (Interview 16, CEO, Music Rights, Start-Up)

Perhaps the most significant determinant in the development of a working relationship between a start-up and music corporation is whether the latter judges that the innovation being proposed is worth the time, effort and often money that will be required to make it work. For many interviewees, a sense of majors record companies as being ‘resistant to innovation’ and giving ‘lip-service’ to innovation while not demonstrating a commitment to this through their behaviour, came from the lukewarm responses their own approaches to majors had elicited. However, as another of our interviewees noted:

I think you shouldn’t have unlimited sympathy for those tech founders, right, because … I think that there’s a lot of naivety … to think, you know, that the people who actually work in this industry are just all idiots and therefore I can do something, and I can come in from the outside … but if they don’t really understand the problem or don’t really understand how they’re going to communicate the solution or whatever, that can be a barrier in and of itself. (Interview 6, CEO, Blockchain Start-Up)

The issue of being able to identify which innovations are needed by the industry, rather than simply those which are technically possible – or what De Groote and Backmann (Citation2020, p. 2) describe as the ‘asymmetric goals’ of incumbents and start-ups – was linked by one interviewee to the issue of understanding the industry: ‘I think there are a lot of people that don’t know how the music industry works, but have an assumption about it, that make bad decisions on what they should build for the music industry and it’s not needed’ (Interviewee 10, CEO, Independent Music Publisher). The same issue was also raised by another interviewee, who had previously worked at a major label, as well as the issue of major being inundated with pitches from start-ups:

I think that’s the main problem, with music tech in general. When I was at [major corporation] for like ten years ago, and we built a bunch of services in-house … these were actually things that we wanted to do because it was good for us. But at the same time, I think I got like hundreds of pitches from different music tech companies … But they very seldom saw the real problem whatsoever because they really wanted to build something cool within music. (Interview 24, CEO, Crowdfunding Start-Up)

The premise that the majors are innovation-resistant was strongly rebutted by a commercial director at a major corporation:

I also think it’s a pretty naïve approach that just because we’re big doesn’t mean we’re not innovative, but we can’t innovate with the same rapid pace because our internal revenue, our internal rate of return, is just higher … we have budget meetings every, you know every year, and it needs to be funded. It’s like you have a boss who says, ‘when is your return on investment?’ And look, we make a lot of bets … [but] if you make your budget why would you take part of your cashflow and invest it? Because you’ll need to justify it. (Interview 25, Commercial Director, Major Corporation)

Smaller, nimbler MusicTech start-ups do provide an important source of innovation for the major corporations, but majors are focusing their limited internal resources on those innovations which meet immediate strategic needs. A recent report on major corporations and innovation produced by the music industry think-tank Music Ally (Citation2019, p. 2) suggested that ‘rather than scrabbling around for the Next Big Thing, the labels are quietly seeking unsexy, powerful, niche pieces of technology to augment their existing businesses’. This, in other words, is an example of what Christophers (Citation2020, p. 171) refers to as ‘rent-seeking’, a particular mode of rentierism which involves ‘investing time and money more in sweating existing rent-generating assets than in carrying out the research and development to create new ones’. Many acquisitions are aimed at further leveraging the oligopoly powers conferred on the majors by their control of large catalogues of music, or what the above interviewee described as ‘future-proofing our revenues’. In 2020 Sony Music Group, for example, invested in Tracklib, a service that provides legal clearance for the use, in new releases, of samples of already licenced recordings, while Universal Music Group acquired Soundsgood, a platform which allows music influencers to create and distribute their playlists across MSPs, including streaming early access new music releases (Music Ally Citation2019).

Conclusions

This paper has focused on the tensions that exist between the incumbent corporations and MusicTech start-ups, set within the context of platform reintermediation in the music industry, with specific regard to intellectual property rights. The music industry is currently experiencing a third wave of platform reintermediation, driven by start-up and scale-up firms developing applications to intermediate between artists, music corporations and audiences in new ways to generate novel revenue streams and engender a more complex and diverse music industry ecology. The novel analysis presented in the paper reveals that the progress of this latest wave of platform reintermediation is being determined in part by the legacy of earlier waves, which served both to make large record companies cautious of the implications of platformisation and of the demands that innovation around platforms make on their resources. This means that, as illustrated at the very beginning of the paper, narratives around the implementation of MusicTech appear positive and engaging, the relationship between the music industry and emerging platforms is often complex and difficult.

On the one hand, incumbent corporations are scarred by a strong institutional memory of the devastating impacts of internet file sharing in the early 2000s, which is reflected in their stout defence of key historical assets, namely extensive catalogues of music. These assets endow music corporations with an oligopoly over intellectual property rights and provide a key advantage through which incumbent music industry corporations retain their dominant position vis-à-vis MSPs and emergent MusicTech platforms. This paper has revealed two key strategies through which incumbent firms protect these assets in the face of the incursion of MusicTech start-ups into the music industry. First, major corporations defend these assets through recourse to law, as seen in the need for start-ups to employ expensive legal teams to engage with the legal departments of the corporations, with majors pursuing legal action against start-ups where it is judged that copyright has been infringed. Second, our findings suggest that the major corporations are seemingly unwilling to bend or adapt legal frameworks to the needs of many start-ups, including the wide-scale adoption of a sandbox methodology for exploring the new use of music rights, or are otherwise constrained by the nature of the existing legal frameworks for which they previously lobbied. The paper reveals the strength of incumbency.

On the other hand, as in many other areas of the economy, start-ups in MusicTech find themselves operating amid ‘intense processes of platform consolidation increasingly dominated by BigTech firms and incumbents’ (Langley and Leyshon Citation2021, p. 10). In the case of the music industry, this includes the major music corporations, as well as the MSPs and major social network platforms. From the qualitative evidence we collected, we conclude that it is the hard-line defence of copyrighted assets by the major corporations that presents perhaps the biggest single challenge in launching and subsequently growing a viable MusicTech start-up, especially where initial funding is limited. Yet there are other related barriers too. First, lines of communication into the large incumbent corporations are very complex and difficult to navigate for start-ups. Often, we were told that initial enthusiasm from label staff ebbs in the proposal’s journey through the organisation when it encounters the publishing and legal departments. Engaging with these departments to discuss licencing can be both complex and expensive in legal terms. Second, even where licensing agreements are reached, the rents required to make use of the significant catalogues of music rights owned by the incumbents incur a significant cost for start-ups – in the order of tens or even hundreds of thousands of pounds – and therefore is only feasible for those start-ups with significant initial capital investment.

A narrative circulated within and between many of the start-ups interviewed that major corporations are ‘innovation resistant’. Start-ups and the entrepreneurs that found them are part of a growing group of organisations and individuals that are seeking to develop a counter-narrative to that which argues for strict copyright protection, depicting industry incumbents as ‘part of a problem rather than the solution to any copyright reform efforts’ (Dobusch and Schüßler Citation2014, p. 25). Yet, the interactions between major corporations and start-ups outlined here should instead be seen as demonstrative of the ways in which – as in the case of rentier capitalism more broadly – the powers vested in intellectual property are being strengthened, and enforcement is augmenting intellectual property’s resilience in the face of potential threats to oligopolistic powers (Christophers Citation2020). This assertion of power must be viewed within the history of the music industry since the later 1990s where P2P networks undermined the business models of record companies by operating outside the law. Having reasserted their control of music rights, large corporations are reluctant to engage in technological and business model experiments that might weaken their position as the dominant rentiers of the music industry assets.

In this regard, the music industry represents an unusual case of platform reintermediation in which a small number of incumbent corporations, through oligopolistic control of intellectual property rights, are positioned as the key rentiers of digital networks, rather than established or nascent platforms. Set in this context, this examination of the music industry as a pioneer platform industry entering a third round of platform reintermediation and technological innovation has revealed some key challenges. To be sure, processes of platformisation in music have differed from those in other cultural sectors, such film, TV and gaming, for example, not least because the music industry underwent this process first and took longer to develop a response through streaming that closed open formats and made revenue collection based on right viable once more. Nevertheless, the challenge faced by both incumbents and start-ups in extending the platform ecology of the music has lessons for other sectors of the economy as they too undergo broader process of platform intermediation.

Acknowledgments

The authors are grateful to Michiel van Meeteren and two anonymous referees for their constructive feedback on an earlier version of this paper, which have helped us to bring our key arguments in sharper relief.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Allan Watson

Allan Watson is a Senior Lecturer in Human Geography at Loughborough University and the theme lead for Culture, Economy, and Policy in the University's Centre for Research in Communication and Culture. Allan has published widely in leading journals on the economic geography and cultural economy of the music industry, with his most recent research focusing on platformisation and the development of a MusicTech innovation ecosystem. Allan is author of Cultural Production in and Beyond the Recording Studio (2014), and co- editor of Rethinking Creative Cities Policy: Invisible Agents and Hidden Protagonists (2015) and Music Cities: Evaluating a Global Policy Concept (2020).

Andrew Leyshon

Andrew Leyshon is Emeritus Professor of Economic Geography at the University of Nottingham. Research has focused on money and finance, the musical economy, and the emergence of diverse economies. His books include: Reformatted: Code, Networks and the Transformation of the Music Industry (2014) explores how peer- to- peer (P2P) networks and MP3 software helped remake the musical economy; Money/ Space: Geographies of Monetary Transformation (1997, with Nigel Thrift) argued that not only does money have a geography, but that it is inherently geographical, and Alternative Economic Spaces (2003, with Roger Lee and Colin Williams) sought to account for the diverse ways in which “alternative” economies have emerged within contemporary capitalism.

Notes

1 For example, compare this to the purchase of music in material formats, which would retain a value that might be realised in second-hand markets (see for example Bennett and Rogers Citation2016).

2 Each of three major corporations operate a complex group structure which consists of a series of record labels, publishing divisions and other brands and partners. Universal music group, for example, lists on its website some eighty record labels and other music brands (Available at https://www.universalmusic.com/labels/, accessed 03/02/2021).

3 The cost of licencing music varies based upon several factors, including the number of songs being licenced, the songs being licenced, the type of licence being sought, the intended use of these songs and the medium in which they are used. In some cases, the licence may include in the contract a percentage of the revenue earned through that license.

4 That is, Series A funding, intended to capitalise a company as it develops its products, performs initial marketing and hires its initial employees.

5 For example, the sandbox operated by Crunch Digital allows record labels and music publishers to sign up as ‘content participants’, and developers are invited to apply to join the scheme based on the approval of their app (see Available at http://digitalmusicsandbox.com/).

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1

Methodological note

The discussion presented in this article draws on 26 qualitative semi-structured interviews with individuals working within MusicTech start-ups (n = 18), major record labels, independent record labels and publishers, incubators and other organisations engaging with start-ups (see ). The start-ups were focused on different aspects of the music industry, including music rights (n = 3), music creation technologies (n = 3) and live music experiences (n = 2), as well as artist and repertoire (A&R), music management, music video, music recognition and music investment. Three of the start-ups were innovating in social media and marketing, with a primary, although not exclusive, focus on music. The start-ups and other participating organisations were located primarily in London, with a smaller sample taken from Stockholm. London and Stockholm are recognised as primary European agglomerations for music industry activity with a history of collaboration between music and ICT (Power and Jansson, Citation2004; Watson Citation2008) and increasingly as hubs of MusicTech innovation (Stockholm Business Region, Citation2016; DIT Citation2018;). Interviews were undertaken between February 2018 and September 2019, prior to the outbreak of the COVID-19 pandemic, using a mixture of face-to-face and telephone formats depending upon the availability of the interviewees. Interviews lasted typically lasted between 30 and 90 min. All interviews were recorded and transcribed. Transcripts were analysed using systematic coding and recoding based around key themes and common categories emerging from the data, considered in relation to the overall theoretical framework.

Table A1. Profiles of interviewees.