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And Finally Beef Of The Week Business News Digital Labels & Publishers Legal
Beef Of The Week #410: The tech lobby v Article 13
By Chris Cooke | Published on Friday 29 June 2018
Forget petty pop star squabbles, the real beefing in the world of music this week has been happening in Brussels where the tech lobby has been mounting a massive campaign to scupper the music industry’s hopes of reforming the copyright safe harbour. Indeed, so proactive has that lobby become with its late-in-the-day mantras of “no more cat memes” and “they’re going to fuck up the internet”, the music community has been put on defcon one as the draft new copyright directive goes to the European Parliament for a full vote.
Of course, big tech and copyright critics have had issues with some of the proposals contained in the draft new copyright directive from the off, and safe harbour reform has been among the most controversial of the proposals throughout.
The copyright safe harbour means that internet companies cannot be held liable for copyright infringement whenever their users use their platforms to distribute other people’s content without licence. Safe harbour dwellers have that protection providing they have a system in place via which copyright owners can demand that infringing content be removed.
The safe harbour concept first came about in the early days of the web in the 1990s, but in recent years copyright owners – and especially the music industry – have questioned the range of internet companies that now claim protection under this principle.
In particular, they question whether the law-makers who created the safe harbour ever intended user-upload websites like YouTube to be protected. After all, the argument goes, these are not mere intermediaries in the content distribution process, they take the content that users upload and use it to build ad-funded media platforms.
What’s more, the music companies complain, firms like YouTube have exploited the safe harbour when negotiating licensing deals with the music industry by basically saying: “we have your content already, agree to our terms or spend the rest of your lives having to ask for your music to be removed”. As a result, YouTube pays much lower royalties than those music services not exploiting the safe harbour, like Spotify and Apple Music. Which creates the much talked about ‘value gap’.
As soon as the European Commission announced a digitally-focused review of copyright law a few years back, the music industry saw an opportunity to get safe harbours reformed in a way that prevented the likes of YouTube from exploiting the principle to keep its royalty bills down. And while the whole safe harbour thing wasn’t prioritised in early documents relating to the latest European copyright review, when the first draft of the directive was published in September 2016 safe harbour reform was included. In the somewhat ominously numbered article thirteen.
Since then, the music industry has really rallied on this issue, with organisations representing major and indie labels, music publishers, collecting societies, artists, songwriters, session musicians, record producers and artist managers all shouting ever louder as one about the ‘value gap’ and how it’s definitely, definitely, definitely, definitely hindering the growth of the legit digital music market.
In the most part, all that shouting seems to have been working. While there are a diversity of opinions in the two key institutions of the European Union – the European Parliament and the EU Council – it does feel like the music industry, now backed by the wider copyright industries on this issue, have had more momentum as the copyright directive debates have rumbled on and countless amendments have been drafted and discussed.
That said, the current draft of article thirteen as passed by the European Parliament’s JURI committee last week is so long and waffley it’s hard to work out what it says really. But the music industry have widely welcomed the passing of that draft while the tech lobby has gone into full-on doomsday prophesising, so I think that tells you that to date the music industry’s lobbyists have managed to lead the agenda on this point.
But as the big votes in Parliament and Council loom, the tech sector has upped its game, with social feeds and tech sites now awash with articles and statements and videos declaring that Brussels is about to fuck up the internet big time, banning memes, outlawing links (that’s actually article eleven) and censoring internet users everywhere. And if you think there’s a lot of that on the social networks and in the tech press, you should see the inbox of the average MEP.
Of course, it’s right to be concerned about the unintended consequences of any new legislation. And there’s also the question as to what extent article thirteen will really strengthen the negotiating hand of rights owners when deal-making with the likes of YouTube. Which, of course, has already agreed to slightly more favourable deals with the labels as it evolves its own subscription ambitions and faces new competition for video views from Facebook. Though maybe it was impending safe harbour reform that got YouTube to compromise. Maybe.
Either way, the music industry reckons that the tech lobby is employing a whole load of exaggeration and misinformation in its last ditch attempt to block articles eleven and thirteen, not least with the “it’ll break the internet” hyperbole. And on that specific claim, indie label-repping IMPALA says it is feeling a little déjà vu.
In an email sent to MEPs – also signed by pretty much ever acronym the wider copyright industries ever dreamt up – IMPALA stated: “There is a cynical campaign from tech companies flooding the inboxes of MEPs with scaremongering that the copyright directive would be the end of the internet. Please note that this is the 20th anniversary of their first claim that copyright provisions would break the internet. This has never happened”.
Actually, at the heart of all this is a more interesting question that was also raised – though not answered – in the long-running ‘dancing baby case’ in the US, that was recently settled out of court. What those opposing article thirteen don’t usually say – when shouting about the EU stopping its citizens from sharing other people’s creative work online – is that, in many cases, such sharing without the creator’s permission is already copyright infringement. What article thirteen does is make that fact the problem of the platform facilitating the sharing.
That said, there are always some limitations to copyright restrictions, which may take the form of specific copyright exceptions or – such as in the US – stem from more vague concepts like ‘fair use’. Those limitations will still apply whatever waffley form of article thirteen is passed. Though, can automated content filters, like those already developed by some of the bigger content sharing platforms – and which may be obligated under article thirteen – deal with something as nuanced as copyright exceptions and fair use?
Still, this is no time for nuance. In the short term, Parliament votes next week. The tech lobby fights on while the music industry’s trade bodies and collecting societies are calling on their members across the music community to rally together for the final push. Good luck everybody, good luck.
You know, things were so much easier when pop beefing meant Adam Buxton dissing Stereophonics.
