Another day, another meeting. Though this one was most unusual. Not a word had been spoken during the past hour. I was sat in the basement Meetings Room. I had a pile of papers in front of me to discuss. I had thoroughly prepared. However, after arriving early, I was still the only person present. My boss had insisted upon this meeting. So where was she? There was no phone call or message to inform of a delay. One really is the loneliest number. Having waited an hour, I returned to my desk upstairs in the team office. Strangely, nothing would ever be mentioned to me about that meeting. It was as if it had never not happened.
Once is an accident. Twice might be a coincidence. Three times is an act of passive aggression. This should have been the last of three meetings demanded of me in an email from my boss’ personal assistant. Their purpose was to brief Claire Enders about the processes by which British radio stations make payments to songwriters for playing their music. She was to be grilled as an ‘Expert Witness’ during a landmark hearing of the obscure ‘Copyright Tribunal’ that had all the trappings of a court proceeding. However, she never arrived for any of those three meetings, never explained her absences and no subsequent attempt was made to reschedule them. For three hours across three days, I had been waiting in vain. The email to me had read:
“We have put in the diary 1pm on Wednesday 13th September for you to spend the afternoon with Grant. We have also blocked off 10th/11th October for your second session with Grant.”
Claire Enders had responded to me and two colleagues who were tackling non-radio issues:
“The initial format I would favour is seminars each w GG [me], JB and AE to outline the key issues covered by each and how we have dealt w them. I will take notes. Ideally, each of GG, JB and AE should this week prepare a set of materials for the topic covered which includes all pleadings and relevant points and witness statements divided by topic. I will then read the materials then expect to be quizzed by each of GG, JB and AE on each topic until I am word perfect. Plse copy this to GG Thank you Plse don't forget that either GG or JB need to be in court with me for my evidence (two full days) and either one will have to have an encyclopedic grasp of our three reports in order to assist.”
After our September meeting had become the first unexplained no-show, the timing of two further dates arrived by email: “GG in for 9th October 3pm, 10th October 1.30pm”.
Why had it fallen upon me to tutor the ‘star witness’ of the defence team? I had been hired by Enders Analysis that April to research and write analyses for its subscribers about the British radio industry [see blog]. However, by year end, I had found no time to write anything for publication. Instead, I was waylaid once my employer discovered that I seemed to be the only person in the office who understood the intricacies of music copyright. I was surrounded there by ‘analysts’ who wrote reams about their specialist media industries but who seemed scarcely to have sullied their hands working on the ‘shopfloor’ of sectors they professed to understand intimately.
I was different from them. They knew it, I knew it. They were posh. I was not. They had been privately educated. I had been born in a council house. My knowledge of the radio industry had been amassed from working my way up from ground zero, fuelled by a childhood thirst for knowledge about broadcasting. I was still at junior school [see blog] when I created multiple scrapbooks filled with newspaper articles about radio, scissored and UHU-ed from my parents’ and grandparents’ daily newspapers. I was still at secondary school [see blog] when I presented weekly music programmes on multiple London pirate radio stations, as well as producing identification jingles played across their output.
In 1980, my first paying job was at Newcastle commercial radio station ‘Metro Radio’ [see blog] whose declining ratings I turned around using my knowledge of pop music, my study of American music radio playlist systems and my economics training. One of my additional responsibilities as acting head of music was to correlate the reporting to copyright agencies of all the music played. Every presenter of every programme was required by law to handwrite A4 forms that recorded for each record played its song title, its artist, its record label, catalogue number and the duration in minutes and seconds it was used on-air. Around 300 songs played each day resulted in dozens of scrappy pages that regularly contained only partial information and blank spaces. A replacement computer system had been promised but never appeared. The forms had to be dispatched to three British statutory music copyright agencies: PPL, PRS and MCPS.
Some presenters hated this ‘extra’ work. They would put off doing the paperwork until their live show had finished, then forget and zoom off, instead piling all the records they had played in their locker, along with the blank forms and a vague promise to do it ‘later’. Much of the station’s record library ended up locked away for weeks in presenters’ lockers bursting with vinyl unavailable for airplay. When pressed to complete forms weeks later, they would have no memory of which track they had played from an album or its on-air duration so, naturally, they just made it up. From my perspective, any completed form – however inaccurate – was better than none at all and would reduce the grief I received from copyright agencies about missing data amongst the reams of paper submitted. It was chaotic. Did any artist or songwriter ever get paid the correct amount by the radio station using their works?
In 1990, prior to launching London’s KISS FM [see blog], I had to create a reporting system from scratch for the music it played. I was the only management team member who even understood our legal copyright obligations. Again, the promised computer system never arrived. I appointed one team member, Myrna McHugh, to co-ordinate the paper-based administration and, during our busiest times of the year, the workload required her to supervise a team of ‘temps’ hired to collate the voluminous information. The station regularly played ‘mixes’, ‘dubplates’ and ‘white label’ records whose copyright details were particularly challenging to determine.
In 2001, working in India on the launch of its first commercial FM radio station ‘Radio City’ [see blog], I met with the country’s copyright agencies to understand how to create a system to report the music played. Though our station was owned by Rupert Murdoch’s ‘Star TV’ business, I invited our competitors, including ‘The Times of India’ newspaper, to my presentation in a Mumbai hotel conference room to explain how music copyright functions and the legal requirements with which all our newly licensed radio stations would have to comply. I was pleased to be teaching my acquired knowledge to others.
By the time I joined Enders Analysis in 2006, my three-decade media career had also taken me to work at radio stations in Israel, Russia, Hungary, Germany, Latvia, the Czech Republic, Lithuania and Estonia [see pdf].
I stumbled into my latest job just when a music copyright dispute was about to be heard before the Copyright Tribunal. The earliest wave of American online music streaming businesses had launched in Britain and disputed how much they should have to pay for the music they played to their subscribers. Their argument was simple: claiming their business model was no different from existing British commercial broadcast AM/FM radio stations, such as London’s ‘Capital Radio’, so they should pay the same low rates. However, those rates had been agreed in 1973 when commercial radio was first licensed in Britain, an era when it was unimaginable that consumers would someday request and hear specific songs via the internet.
The songwriters, represented by the Performing Rights Society (PRS), disputed the argument of these online businesses who added no ‘radio station’ value in the form of presenters, information, news and features to their non-stop back-to-back music. PRS had hired Enders Analysis to provide data and arguments to win its case. Claire Enders would appear before the Tribunal as an Expert Witness for PRS. During the months leading up to the Tribunal hearing this case, my role was to refine those arguments and to research/analyse the radio and music streaming markets to provide documented evidence. Some of this work I have subsequently published, such as ‘The Differences Between Traditional Terrestrial Broadcast Radio and Internet Radio’ and ‘Audio Podcasts and The Market for Podcasting’ (23 and 35 pages respectively).
I recall that one day, waiting at the Lebanon Road tram stop, a ‘Eureka’ moment made me realise that a document I had earlier found online undermined the argument presented by the music streaming companies that their product was ‘radio’. I contacted PRS and, working with its lawyers at Denton Wilde Sapte [see blog], we jointly developed a cohesive case backed by evidence to present in writing prior to the commencement of Tribunal hearings on 28 September 2006.
It was 5 December 2006 when Claire Enders was called as an Expert Witness before the Tribunal. I was sat in the front row on the lefthand side, between the PRS lawyers and their barrister, while the American internet team were on the opposing benches. Throughout the Tribunal, I would follow carefully the proceedings and write thoughts on Post-it notes passed to the lawyers who then made suggestions to their barrister. Enders faced me from the witness box a few metres away to the left of the Bench of three elderly judges. It resembled one of those courtroom scenes so beloved of television dramas. Enders was pressed by the barrister for the streaming services as to her expertise in the radio industry:
Kenneth Steinthal [New York Bar representing MusicNet, Yahoo!, AOL, RealNetworks, Napster and Sony]: “What exactly did you do to analyse the webcasting business before submitting your first witness statement?”
Claire Enders [Expert witness for PRS]: “In preparation of it?”
Steinthal: “Yes.”
Enders: “In preparation of it, the radio specialist I have on the team, who is called Grant Goddard, and I discussed, you know, what we were looking for, and in particular we looked at a large number of webcasts. We did a lot of internet research into the various models. We looked at what had been written about them in the US. It was also part of the job to look at how the different services behaved, you know, actually experiencing them.”
Enders: “My colleague, Grant Goddard, spends a lot of time analysing various web-based phenomena, as do many of my team, and so we listened to them and looked at how they behaved and so forth. So a lot of desk-based research and experimenting with the services themselves.”
Steinthal: “Can we separate what your colleagues did from what you did and ask you to focus on what you personally did to analyse the webcasting industry?”
Enders: “I personally spent time on ‘Yahoo!’ and ‘AOL’.” […]
Steinthal: “Other than spending time on ‘Yahoo!’ and ‘AOL’ to get a sense of what those services were comprised of and looking at ‘Shoutcast’, again focusing on what you did to analyse the webcasting market, what else did you do, if anything?”
Enders: “I also read the -- I am sorry, I am not a lawyer, but the various documents that had been prepared by the various parties, various legal documents making various claims about their industry -- about the specific aspects of both ‘iTunes’ with the MNO’s and so forth so. I am sorry, I think those are called pleadings, but there are other documents that have different names. So I was trying to understand what the issues were between the two sides.”
Steinthal: “Did you interview anyone engaged in webcasting?”
Enders: “I did not do so personally.”
Steinthal: “Is there anything else you did, other than what you have just testified to, to ready yourself for preparing your first report in May 2006?”
Enders: “No.”
Steinthal: “Other than your experience in connection with the potential ‘EMI’ interest in ‘Viva’ and in ‘Classic FM’ in the early 90’s, do you have any first-hand experience in broadcast radio?”
Enders: “It depends what you call first-hand, because I have always been an analyst and a strategist, so that -- I am not an operations person. I have not run a station or anything, I just analyse business models. So, by that nature, one is always a bit removed from the coalface, if I may say.” […]
Steinthal: “Prior to this case, had you had any experience with respect to the licensing by MCPS or PRS of either terrestrial radio stations or internet radio stations?”
Enders: “No.” […]
Steinthal: “… I am trying to find out whether you did anything other than looking at the industry reports, for example, and talking to your colleagues as you testified earlier in doing –"
Enders: “Desk research, we did a lot of desk research.”
Steinthal: “Excuse me?”
Enders: “We did a lot of desk research, looking for – searching for information online.”
Steinthal: “Anything else that you did to inform yourself, to make the comparison that you made in your various reports between terrestrial radio and webcasting?”
Enders: “Other than looking at websites and doing desk research and listening to the stations themselves and so forth?”
Steinthal: “Right.”
Enders: “No.”
It was 11.35 on the morning of the first of day of testimony by Claire Enders. We had only started at 10.30. For the remainder of that long day and all of the next, I put on a poker face whilst cringing inside at my boss’ difficulty providing detailed answers to questions fired at her about the British radio industry. She had undoubtedly read my documents for the Tribunal, but why had she not been prepared to meet me so that I could share my acquired knowledge and expertise? Why the reluctance to fulfil face-to-face meetings she herself had demanded? Enders’ apparent view was that I toiled at “the coalface” whilst she was “not an operations person” but worked to “just analyse business models”, a latter-day Ian MacGregor to my underground mining activity. She and I never spoke about her performance those two days.
After twenty days of hearings, it took until 19 July 2007 for the judges to publish their 91-page verdict. It noted criticisms voiced during the hearings that Enders was “a commentator or a highly-paid industry observer rather than being a lively participant in any relevant field”. However, it did highlight that “in particular, she gave evidence to refute the suggestion that webcasting [‘streaming’ in today’s parlance] and commercial broadcast music [‘radio’] should be regarded as comparable products”, the argument I had successfully proven.
Overall, the judges’ verdict on Claire Enders’ performance as an Expert Witness was hardly positive:
“Even taking into account Ms Enders’ inexperience in this jurisdiction, her performance as an expert was, we thought, rather uninspiring. Her reports (which comprised a fulsome lever arch file of evidence together with numerous lever arch volumes of exhibits thereto) consisted to a large extent of data which had indeed been sourced by others, sometimes by a team which she herself led and the reliability of whose work she (often unquestioningly) relied on - only to find it wanting on closer examination. We certainly sympathise with the impossibility of mastering everything within so large a corpus of material. Nonetheless, on a number of key issues, she seemed confused, occasionally inaccurate and, more importantly, sometimes unable to provide reasons for the assumptions upon which her evidence was based. Surprisingly, she had not actually read the New JOL [‘New Joint Online Agreement’] but relied on a summary thereof. We do not wish to give the impression however that Ms Enders’ evidence was misleading; it was not. But we were not greatly assisted by it.”
Nevertheless, our client PRS and its legal team at Denton Wilde Sapte were very pleased with the Tribunal’s outcome. They invited me to participate in celebratory drinks after work in a Fleet Street members club. As the only Enders Analysis employee to have sat between them on the legal front bench throughout the proceedings, I had been impressed by their professionalism and gratitude for my contributions. My work had made a difference. Henceforth, music streaming businesses operating in Britain would be required to make considerably greater payments (‘royalties’) to songwriters whose music they were using. Not merely songwriters within Britain but throughout the world. The business model of American music streaming services operating in the UK would necessarily have to change.
In a subsequent presentation 'Online Radio: The UK Business Model' I made in 2012 to the ‘Music 4.3: Smart Radio’ conference in London, I noted how this Tribunal had determined music streamers’ costs for using songs would be much more expensive than rates paid by UK commercial radio stations. The Tribunal had decided that “the per play rates in [online] agreements for pure webcasting [music streaming] are approximately six times those … under the [commercial radio] agreement.” The reason it gave was that “the Tribunal was of the view that independent commercial radio offered quite a different service to an [online streamed] ‘music, music, music’ service”.
As the Tribunal verdict had produced a ‘win’ for PRS, Enders Analysis offered to pay for myself and my work colleagues to share a celebratory afternoon outing. I should not have been surprised that they chose to take ‘afternoon tea’ at the Savoy Hotel in the Strand, a venue for the rich and privileged I had heard of but never coveted. My younger posher colleagues enjoyed themselves at “London’s most famous hotel”. I would have much preferred to spend an evening at the Jah Shaka reggae sound system.
The Tribunal verdict noted that Enders Analysis had charged its client PRS £750,000 for “preparing their reports” though additionally there were “VAT [at 20%] and charges for [Claire Enders’] attendance at the hearing”. The judges concluded that “incurring expert fees of this order of magnitude (and even taking into account […] the substantial sums of money at stake) was, in our view, seriously disproportionate”. Enders Analysis’ billing to PRS had likely exceeded one million pounds.
Within only a few years, most of the American ‘applicants’ who had forced this costly Tribunal – Yahoo!, AOL, RealNetworks, Napster and Sony – exited the UK music streaming market, each having spent millions on legal fees and their own bevy of Expert Witness submissions and expenses. It demonstrated what a ‘black hole’ exists for American online start-ups who seem to have unlimited money to try to push their way into countries around the world on their own terms, using their own lawyers to argue the unarguable and to attempt to stomp on overseas legal precedents.
My first nine months at Enders Analysis had been diverted into full-time work on this legal case instead of writing media analyses for its subscribers. Regardless, I had been pleased to utilise my ‘expert’ knowledge of music copyright gained over decades on the radio industry shopfloor. One day at work, Claire Enders stopped me on the office staircase, thanked me for my work on the Tribunal and unexpectedly offered me a bonus which I gratefully accepted. It may have been no more than a few percentage points of her ginormous fee but, combined with accumulated savings from my and my wife’s salaries, it provided us a deposit for the purchase in 2007 of our first home … at the age of forty-nine.
It was the first and last bonus I received in any workplace.
