Collective Copyright Trolling?

Just over a week ago Australia elected a new Federal Government, and many people are watching closely to see how copyright policy will change under the new regime. It's a particularly sensitive time as the Australian Law Reform Commission is in the final stages of an inquiry into the adequacy and appropriateness of current exceptions and statutory licences, with its report due by late November.

Given this context, it's highly interesting that the Copyright Agency Ltd has gone on the front foot with an aggressive marketing campaign. CAL is "the peak Australian body for licensing the rights to copy and communicate published material", and apparently it would like to drum up some new business in the form of more licences - and more prosecutions.

These ads were published about a week ago in the broadsheet press, encouraging employees to anonymously dob in their bosses for copyright infringements:

Using the slogan, "it's easy to infringe - easier to be licenced" CAL notes that "most" workplaces are infringing copyright. There's no doubt that that's true. There's probably millions of infringements every year by businesses and employees who would likely be outraged to discover their activity is infringing.  Australian copyright law relies on a system of narrow purpose-based exceptions, and many surprising situations fall outside them. For example, operating a search engine from Australia would almost certainly involve wholesale infringement.  Consumers can copy music from a CD to their tablets - but not from DVDs. Mashups and remixes aren't permitted unless they happen to also fall within one of the purpose-based exceptions, such as the one permitting fair dealing for parody or satire. Libraries can make copies of a published work for the purposes of replacing a work…but only after that work has been lost or stolen. Australians had no right to time-shift television until 2006, and even now it doesn't extend to current-generation timeshifting technologies (as I've written about here). And it's OK for teachers to write a poem on a blackboard, but writing the same poem on an interactive whiteboard will incur a fee. (More examples can be found on the Australian Digital Alliance's Copywrong website. Disclosure: I'm a member of the ADA's board.)

In light of CAL's strongly-worded position in favour of new licences over new exceptions, it will be interesting to see whether drawing attention to the ease with which copyright can be infringed under the existing law was really the best strategy.

By the way, before you decide to dob in your employer, bear in mind that there's a few catches. Monetary rewards will only be offered if your tip leads to a successful prosecution or a new licence - and their amount and payment are solely at CAL's discretion.

Is Universal Publishing’s exit from collective licensing a step backwards for music industry ‘one stop’ aspirations?

The one question I always get asked by young entrepreneurs setting out to create legitimate digital offerings in the digital music space is where do they go to get licences to use music, and make payments ? Well, there is no easy answer. In 2012 Daniel Ek, the creator of Spotify, pointed out that the European Union alone had 27 different  music collection societies for songs – and a similar number for sound recordings as well as the the four major labels dealing directly  for digital rights: Ek said the service’s U.S. debut was then still a few months off as Spotify worked through a maze of licensing issues with publishers, labels and collection societies, saying that to create a new above-board music platform in America under current copyright law required big reserves of money, lawyers and perseverance. And that’s just America! At the time Johanna Shelton, senior policy counsel for Google Inc said “The Internet is a simple distribution platform … [but] we’ve made things unnecessarily complex,” noting that calls for a music rights organisation, a one-stop shop to deal with all licensing issues, had gone unheeded. But we all now know that in default of legitimate services ……. piracy fills the void -  and then no-one gets paid.

Martin Mills, the much respected boss of independent Beggars group whose labels include XL, 4AD and Rough Trade and home to Adele, The National, The Prodigy, Sigur Ros, Jack White and Vampire Weekend amongst others, recently admitted that rights owners - especially the bigger ones - had made various mistakes in the way they licence online content services in the last fifteen years, and that the music rights industry still needed to work harder on developing better cross-territory licences. That said, Mills told an audience at the MIDEM convention "I don't believe that the present day music industry is a reluctant licensor" adding "we do not need to have control of our rights taken away from us, to be forced to licence that in which we have invested at uneconomic prices, to simply allow huge tech firms to make even huger profits. Yes, music companies needed tech companies just like tech companies need content, but "as someone who invests in music - and when I looked at the numbers a few years ago we had written off £25 million in unrecouped advances to artists over the years - it makes me fume when politicians cosy up to the big techs at our cost and spout philosophically about the needs of the modern world, about us being dinosaurs, and about music's irresistible urge to be liberated and free".

European digital commissioner Neelie Kroes has been a staunch advocate on opening up digital licensing and said last year “Too many barriers still block the free flow of online services and entertainment across national borders [in Europe]. The Digital Agenda will update EU Single Market rules for the digital era” saying her aims were to boost the music download business, establish a single area for online payments, and further protect EU consumers in cyberspace. Kroes called on content owners of Europe to construct a "simple, consumer-friendly legal framework" for making digital content available across the Union saying the traditional content industries had not developed their licensing models fast enough to cope with the new demands of internet services saying "Digitisation has fundamentally changed content industries, but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. The price, both in pounds and frustration, is all too real, as creators are stifled and consumers are left empty-handed. It is time for this dysfunction to end. We need a simple, consumer-friendly legal framework for making digital content available across borders in the EU".

Mills took issue with some of Kroes' comments, saying "All in life needs balance and vision, and the likes of Neelie Kroes miss that point. When businesses make money out of music, music rights owners must have the right to a fair share of that income". Noting also that the music industry pumps a lot more into the tax system than many of the tech giants putting pressure on rights owners, Mills concluded: "I'm incensed about the discrimination and the lack of understanding with which those like us who spend their lives creating art that brings people joy, can get treated by those in power. I very much hope that we can all be a part of changing that, because unless we do, the ladder we climbed will not be there for those who follow us".

I have recently blogged on the ongoing progress to establish a Global Repertoire Database for music (Global Repertoire Database Tunes Up): In Europe SACEM (France), SGAE (Spain) and SIAE (Italy) have joined forces to create ‘Armonia’, the first pan-European hub for licensing of online services, gathering together more than 5.5m works (the rights of which are managed by the three collecting societies), and addresses online exploitation and/or mobile uses over a territory of 35 countries. Other commercial developments include the collaboration between the PRS (UK) and STIM (Sweden) with a jointly-owned commercial service centre for back room operations; Publisher  EMI has joined up with GEMA (Germany) and PRS and formed a ‘one-stop shop’ for the licensing of online rights  and the UK is in the process of working out how a Copyright Hub – the Digital Copyright Exchange – might work - the place where any copyright owner can choose to register works, the associated rights to those works, permitted uses and licences granted and the place for potential licensees to go for easy to use, transparent, low transaction cost copyright licensing – streamlining copyright licensing and facilitating the licensing of copyrights on a 'one stop shop' basis with a registry of copyright data and copyright owners, and potentially with licensing mechanisms.

But conversely comes the news that Universal Music Publishing has confirmed its intention to withdraw it's digital rights from US performance rights organisations ASCAP and BMI. CEO Zach Horowitz confirmed the planned move in a statement to Billboard, citing an inability from both societies to achieve market rates with digital services; the move will follow Sony/ATV/EMI's lead, and will allow UMPG do direct deals with streaming services, with Horowitz saying "In order to ensure that our songwriters are fairly compensated, we believe the best approach is for us to negotiate directly with these services”. Recently Sony/ATV (now controlling the EMI catalogue) struck a direct deal with Pandora which seems to  secure the Sony publisher a bigger cut of the royalties available for song rights from the streaming company. Billboard sources also report that BMG Chrysalis has also negotiated the option to do the same but is yet to decide if it will use a direct strategy, a a move away from blanket licence deals negotiated by the collecting societies.

So, if the bigger rights owners, who generally have more to gain from direct deals, move away from collective licensing, where does that leave the concept of a ‘one stop shop’?  If a new digital music business has to go to all of the major publishers in the USA or elsewhere – and all of the major record labels - that means even more ‘stops’ than when Ek was trying to set up Spotify. And surely this must be a huge deterrent  to legitimate business models? That said,  one can see the attraction to the big rights owners to go it alone - higher royalty payments and upfront advances,  or even shareholdings, and also labels, publishers, songwriters and artists can retain vetoes over certain tracks - and have a more hands on approach to licensing.  And indeed, whilst it may be only ‘one’ company out of many that need to be cleared – that label or publisher may be able to offer a global licence – a near must in most digital business plans.

The whole issue is complicated further by the fact that no-one seems quite sure how advances from (or shareholdings in) digital operators are treated.  For example how do Universal and Sony account for their shareholding in Spotify to their recording artistes? An important question if you are a recording artiste or songwriter!

But we clearly have two way tension (at least): Universal’s move reveals the wish of content owners to manage their own digital rights – possibly on a global scale – but this should be balanced against the clear advantage of collective licensing and the fact without global one stop licensing the music industry runs the risk of promoting piracy through over complicating the legitimate market. Do we really want to exclude innovative  but cash-strapped start-ups who could be blocked from the market? Do we want to marginalise smaller rights owners – who are further down the food chain from the major music publishers and recorded music groups? But as Martin Mills rightly says, it seems equally wrong to force rights owners to “licence that in which we have invested at uneconomic prices, to simply allow huge tech firms to make even huger profits”. A conundrum? As ever, maybe some of our 1709 community may have a view!

And see the Max Planck Institute's comments on the draft EU Directive on collective rights management here  http://ipkitten.blogspot.co.uk/2013/02/max-planck-comments-on-draft-directive.html

http://www.billboard.com/biz/articles/news/1533683/martin-mills-call-to-action-his-billboard-midem-speech-in-full

http://the1709blog.blogspot.co.uk/2012/11/hoopers-vision-unfolds.html

http://www.xlrecordings.com/news

http://www.musicweek.com/news/read/universal-music-publishing-to-leave-ascap-bmi/053431

Or my heresy blog - suggesting that just ONE single global collection society is the way forward  here http://the1709blog.blogspot.co.uk/2012/05/is-it-time-for-super-society.html

APIK and VAPIK, or keeping abreast of Kosovan developments

The mysteries of Google Image: a search
for 'apik' + 'vapik' brought up the
image above in the first line of hits ...

Whatever setbacks copyright protection may face in the United States, much of Asia and most of Europe, it's comforting to note that things are looking a little rosier for the increasingly controversial right in Kosovo. According to information recently received,

"On July 12, the Copyright and Related Rights Office, operating under the Ministry of Culture, Youth and Sports in Pristina, Kosovo, gave licenses to the first two copyright collectives established in Kosovo.

The two collectives are the Association of Authors, Producers and Interpreters (APIK), responsible for the collective management of musical works, and the Audio Visual Association of Performers and Interpreters (VAPIK), responsible for the collective management of audiovisual works.

Memli Krasniqi, minister of culture, youth and sports, under whom the copyright office operates, handed the licenses to the representatives of the two associations, Florent Boshnjaku from APIK and Blerim Gjoci from VAPIK.

The new Law on Copyright and Related Rights entered into force in Kosovo in December 2011 and now the copyright office has taken an important step to ensure proper implementation of this law". 

Source: PETOSEVIC July 2012 news

Ministry of Culture, Youth and Sports feature on APIK and VAPIK here

GEMA holds a mirror to the You Tube decision

Following on from Monika Bruss' excellent coverage and follow ups, collecting society devotees and You Tube employees may wish to read Der Spiegel's interview with GEMA CEO, Harald Heker.