Rights owners call for a halt to EU Copyright reforms - but the creative sector disagrees

Rights holders from across the European Union, including the recorded music sector, music publishing, television and sport have called for a halt to the planned reforms to copyright laws saying that recent revisions to the draft legislation mean that  "regrettably under these circumstances we would rather have no directive at all rather than a bad directive".  But this view ha been challenged by the actual creators of music who are taking a very different view to the corporate owners of copyrights - they still see big benefits from the Copyright Directive.

The planned legislation was first approved by the European Parliament in September 2018 but has undergone numerous revisions and amendments since then and latest draft text makes what rights holders regard as significant concessions to tech companies. The revisions came as compromises - but  after continuous lobbying from the tech sector, in particular Google and YouTube. Last month music rights organisations admitted that the recently proposed versions of the Copyright Directive “[do] not meet the original objective of Article 13” – namely “correct[ing] the distortion of the digital market place caused by User Upload Content (UUC) services”. Record label trade organisations IMPALA and IFPI were specifically opposed to the latest draft text of the copyright directive, as proposed by the European Council.

The most recent amendments are the result of a compromise between France and Germany.

Under the agreement, Article 13 applies to all for-profit online sharing platforms, compelling services to take “effective and proportionate” action to combat the sharing of copyrighted works. The amendment would still oblige all services to install upload filters, but would except those fitting all three following criteria:

- The service has been publicly available within the EU for fewer than three years

- The service has an annual turnover below €10 million

- The service has fewer than five million unique monthly visitors

In response to the 'corporate' rights owners new move, a number of UK organisations representing artists, songwriters and managers have urged EU decision makers to continue working on the Directive. The Council Of Music Makers - that brings together BASCA, FAC, MMF, MPG and the MU - called on negotiators "to proceed with the copyright directive", adding that "we speak with one voice with all the creator-led organisations across Europe and around the world in supporting the copyright directive".

Really? Maybe the record labels (in particular) have begun to take note of  Articles 14 through to Article 16 which will seek to provide artists and songwriters with more transparency, a contract adjustment mechanism and a dispute resolution system and ever - dare we say - equitable remuneration. And a business might not want to support that.  Hmmmmm! So more money from YouTube - that's all good - but passing some of that  on to recording artistes and songwriters - not so good!

Well the message in the open letter from the 'business' side reads as follows:

We are writing as a group of rightsholders representing the music, audio-visual, broadcasting and sports industries, regarding the direction of travel for the Directive on Copyright in the Digital Single Market.

The key aims of the original draft Directive were to create a level playing field in the online Digital Single Market and strengthen the ability of European rightsholders to create and invest in new and diverse content across Europe.

Despite our constant commitment in the last two years to finding a viable solution, and having proposed many positive alternatives, the text – as currently drafted and on the table – no longer meets these objectives, not only in respect of any one article, but as a whole. As rightsholders we are not able to support it or the impact it will have on the European creative sector.

We appreciate the efforts made by several parties to attempt to achieve a good compromise in the long negotiations of recent months. Nevertheless, the outcome of these negotiations in several of the Council discussions has been to produce a text which contains elements which fundamentally go against copyright principles enshrined in EU and international copyright law.

Far from levelling the playing field, the proposed approach would cause serious harm by not only failing to meet its objectives, but actually risking leaving European producers, distributors and creators worse off.

Regrettably, under these conditions we would rather have no Directive at all than a bad Directive. We therefore call on negotiators to not proceed on the basis of the latest proposals from the Council.

Yours sincerely, the undersigned.

ACT – Association of Commercial Television in Europe*
AKTV – Czech Association of Commercial Television
DFL – German Football League
ICMP – The Global Voice of Music Publishing
IFPI – Representing the Recording Industry Worldwide
IMPALA – Independent Music Companies Association
La Liga – The Spanish Football League
Mediapro – Independent Production Company
The Premier League – The English Football League
Związek Pracodawców Prywatnych Mediów – Polish Union of Private Media Employers, Lewiatan

A different approach can be found in the open letter from GESAC, primarily representing music creators - songwriters and author's collection societies -  in the areas of musical, audiovisual, visual arts, and literary and dramatic works. This is the first time the 'music industry' has split - and moved away from one unified voice - although IMPALA qualified it's support in later communications. The 'creatives' say this: 

As the negotiations on the copyright directive enter their final and very critical stage, GESAC, which represents more than one million creators from all sectors through its 32 members from across the EU and EEA, would like to express its strong support for this directive which is essential for the future of creators.

The directive as a whole - and in particular the provisions in article thirteen - creates the long sought after level playing field for creative content in the online market.

It also addresses the major unfairness caused by the enormous 'transfer of value' that favours free-riding tech giants, while it also incentivises European creation, innovation, and investment. The current text is a compromise that goes into the right direction, although further improvements still need to be achieved. You will find enclosed GESAC's priorities and suggestions on the text in this respect.

Without this directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of tech giants that refuse any rules or oversight.

It is now time to adopt a mandate at [the EU Council meeting] on February 8th and an agreement on the directive in trilogue early next week to send the right message to European citizens: the EU delivers for its people and its values!

We trust your thorough political judgment and sense of fairness will prevail to finalise the last step of this process and remain at your disposal for any complementary clarifications.

the open letter from CMM, the UK's Council of Music Makers, says this:

The UK Council Of Music Makers - comprising BASCA, FAC, MMF, MPG and the MU - call on negotiators to proceed with the copyright directive.

We are the voice of UK songwriters, music producers, performing artists, musicians and music managers. We speak on behalf of thousands of makers of the music this 'industry' represents. We speak with one voice with all the creator-led organisations across Europe and around the world in supporting the copyright directive.

While the current text could be improved and still includes some problematic provisions, it is a compromise. At every step of this process the creative community has sought compromise and been open to dialogue.

Most creators and artists in the UK struggle to make a living from music. Without this directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of some tech giants that refuse any responsibility.

We make the music that people want to listen to and buy. It is our intellectual property and our rights and we need the copyright directive to put in place reasonable and fair safeguards.

It is hugely disappointing to see the music labels and publishers disregard the interests of their creators and artists in this way. They are trying to overturn years of collaborative work at the eleventh hour by killing the copyright directive. Like YouTube, they have lobbied negotiators hard without consulting or informing the creative community. Heavy-handed tactics of heavyweight businesses.

It is sad to see labels and publishers turn on their creators and artists in this way. They are trying to halt the directive not only because of the latest wording of article thirteen but because they want to avoid the improvements to transparency and fairness that articles fourteen to sixteen bring. We are saddened that the short-term commercial interests of these companies can be put before modernisation of copyright legislation that will benefit the whole industry.

The labels and publishers have shown an unsettling disrespect for the talent that they have the privilege of representing, raising serious questions about their suitability to be the custodians of copyright. We have worked in tandem with UK Music and colleagues across the industry to find compromise and solutions that enable legislation to pass. This directive will affect future generations of creators and performers whose interests need protecting beyond the interests of current models.

We have been engaged and willing to negotiate, and we remain engaged and progressing in good faith, with both tech and industry. We have not given up on this important legislation.

We call on UK government and UK Music to support the adoption of the copyright directive.

Akshat will be updating in future CopyKat posts!

https://www.iq-mag.net/2019/02/music-organisations-reject-eu-copyright-directive/#.XF3Vq1z7SUl https://www.billboard.com/articles/business/8497198/europe-rights-holders-eu-scrap-copyright-directive-current-form

US music industry asks Trump for a fair deal (but less fair use!)

Nineteen US music industry organisations have come together deliver an open letter to President-elect Donald Trump (pictured left), pointing out that the likes of YouTube, Google and Facebook have thrived on 'free' music and what they term the "value grab", and that "sophisticated technology corporations can do better" at fighting piracy, and and shouldn't be able to hide behind legislation such as safe harbor - which has arguably allowed the technology and telecoms giants to grow and grow at the expense of the music industry.

Amongst those signing are the Recording Industry Association of America (RIAA), the American Society of Composers, Authors and Publishers (ASCAP), the American Association of Independent Music (A2IM) and the Songwriters Guild of America, who have asked Mr Trump to work with them on behalf of "American music – one of our nation's most valuable forms of art and intellectual property, and a powerful driver of high-quality U.S. jobs and exports" and group ask Trump to pass laws that would strengthen and enforce intellectual property laws in the industry's fight against "infringers" while seeking fair compensation from "search engines, user upload content platforms, hosting companies, and domain name registrars and registries" noting that "Strong protection for intellectual property rights will assure growth in both creativity and technology, benefiting the American economy as a whole."



The Honorable Donald J. Trump
President-Elect of the United States
Office of the Presidential Transition
1800 F Street, NW

Washington, DC


Dear Mr. President-Elect:

Congratulations on your election to serve as the 45th President of the United States. We look forward to working with you and your Administration on behalf of American music – one of our nation’s most valuable forms of art and intellectual property, and a powerful driver of high-quality U.S. jobs and exports.

We represent the music community of America. From songwriters, musicians and recording artists, to artist managers, music publishers and record companies. From producers and engineers, to performing rights organizations and genre organizations that promote everything from Americana and blues to classical, Christian, gospel and country to hip-hop, jazz, pop, rock, R&B, and everything in between.

So much of what you wrote in your platform this summer about intellectual property and private property rights resonated with many of us, including:

“Intellectual property is a driving force in today’s global economy of constant innovation. It is the wellspring of American economic growth and job creation. With the rise of the digital economy, it has become even more critical that we protect intellectual property rights and preserve freedom of contract rather than create regulatory barriers to creativity, growth, and innovation.”

And calling for strong action to enforce intellectual property laws against infringers.

As you meet tomorrow with some of the world’s major corporate technology executives, we wanted to highlight some points that are assuring the continued dynamism of music as one of America’s national treasures.

Music powers economic growth. Among other research, just this week a new study reported that music and other copyright industries in the U.S. contribute more than $1.2 trillion to our national economy and create jobs for more than 5.5 million Americans. Music is one of our nation’s great exports.

Music drives innovation. Consumers today enjoy more music in more formats than ever, as the music industry has aggressively embraced technology. The industry has worked with more than 360 digital services providing instant access to tens of millions of songs from any location in our country at the touch of a button.

Indeed, many of today’s popular technology platforms owe much of their growth and success to music. Music is responsible for the most-followed accounts on Facebook and Twitter, the most-watched videos on YouTube, and is one of the most popular draws for phones and other personal devices. These platforms thrive and grow by delivering the creative genius of songwriters and artists.

As partners, many in the technology and corporate community should be commended for doing their part to help value creators and their content. Some have developed systems to promote a healthy market for music and deter theft. However, much more needs to be done. Search engines, user upload content platforms, hosting companies, and domain name registrars and registries should follow others’ example to effectively stop theft and assure fair payment.

Further, there is a massive “value grab” as some of these corporations weaken intellectual property rights for America’s creators by exploiting legal loopholes never intended for them – perversely abusing U.S. law to underpay music creators, thus harming one of America’s economic and job engines.

Surely the world’s most sophisticated technology corporations can do better – by helping to prevent illegal access and paying fair market value for music with prices set by or based on the free market.
Strong protection for intellectual property rights will assure growth in both creativity and technology, benefiting the American economy as a whole.

We hope you will lead the effort to assure American creativity is encouraged, invested in, protected and fairly compensated in a manner that carries out the exclusive rights guaranteed in the Constitution to those who, with the genius of their mind, form the cultural identity of our great nation.

Sincerely,

American Association of Independent Music (A2IM)
American Federation of Musicians
American Society of Composers, Authors and Publishers (ASCAP)
Americana Music Association
Broadcast Music, Inc. (BMI)
Church Music Publishers’ Association (CMPA)
Christian Music Trade Association (CMTA)
Gospel Music Association
The Living Legends Foundation, Inc.
Music Managers Forum - U.S.
Nashville Songwriters’ Association International (NSAI)
National Music Publishers’ Association (NMPA)
The Recording Academy
Recording Industry Association of America (RIAA)
Rhythm & Blues Foundation
Screen Actors’ Guild-American Federation of Television and Radio Artists (SAG-AFTRA)
SESAC
The Songwriters Guild of America
SoundExchange

http://arstechnica.com/wp-content/uploads/2016/12/Letter-to-POTUSE-from-Music-Community-121316.pdf

Image by Gage Skidmore

Taylor Swift is incredible

Richard Tomasi
at the Lago di Caldonazzo ...

A few days ago the Wall Street Journal (WSJ) published an imaginative piece by American singer-songwriter Taylor Swift bearing the charming title For Taylor Swift, the future of music is a love story, in which she discussed the future of music and music industry. 1709 Blog friend Richard Tomasi (@FathersNotCool) analysed it for us. As his Twitter handle suggests, Richard is a fun Italo-Irish living in London. He has now cemented a passion for copyright with a PGDip in UK, US & EU Copyright Law, having previously achieved a BEng in Telecommunications and an MA in Mass Communications. A professional career in IP Law is the path he now wants to take, having just completed the GDL.

Here's what Richard writes:

Taylor Swift is incredible. There, I said it. No, not that the 24-year-old country singer is so extraordinary as to seem impossible, but in the sense that she is not credible or, if you prefer, hard to believe. 

I am not, however, talking about her music. 

I do not know her music. 

I am sure I have probably heard some of her tunes, by chance, on the radio whilst waiting in a barber shop or whilst watching TV and it popping up in an advert. And I am sure it was delightful and creative. 

I can definitely say I know what she looks like, but that is because she dated one of the boys from One Direction. 

... and Taylor Swift
at LA airport
(note the mutual passion
for check shirts)

And Twitter was not happy when they broke up. 

But she is also a known and renowned cantautrice, having won many an award from an industry that likes giving out awards. 

An industry that she sees as just coming alive, according to the column she wrote for the Wall Street Journal earlier this month. The article was to be, it seems, yet another fuse, ignited by her, of a stick of dynamite labelled ‘Internet’. If this was the WSJ’s intention, well, kudos! The internet clambered to shout and scream its opinion. And sifting through the white noise, there are some very valid points made. 

But this was to be expected, though, when a successful performer – in music industry terms – decides to predict the future of her industry. She becomes somewhat of an easy target. Solely because the industry goes way deeper than the faces we see on the various platforms that flood our daily lives.

 “Where will the music industry be in 20, 30, 50 years?” she opens wistfully. A question which she does not particularly answer, but not because it is quasi-impossible to answer (just think, 50 years ago the Phillips tape cassette recorder – the little device that would release unprecedented piracy – was only one year old) but she attempted to do so without mentioning the word ‘copyright’ once. Not once in 1,174 words. 

As I said, the girl is incredible.

Copyright is the law that governs who can commercially exploit cultural creations and to what extent. Musical creations are one of the subsets in the category. To quickly understand how much copyright, the foundations of the music industry, has evolved in the last 53 years (that way we coincide nicely with the Rome Convention yet stay within Taylor’s predictive order of magnitude) one need only know that when Thin Lizzy signed to Decca in 1970 their contract was three and half pages long whilst the Gorillaz had to plough through over 100 pages when signing to EMI in 2003. 

So, you see, not to consider how copyright may evolve from now to 2064 when considering the future of the music industry is a bit of an oversight. An oversight made by someone who goes on to say that “Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for.” 

This, in itself, is a massive statement, something I may ask the next song-writing busker I see in London about. 

The 80s are over
(thank goodness)

Yet it does not cross her mind to question or explain how the scarcity of her intangible product is created? 

The music industry, as we know it, will be fine as long as the copyright owners, usually the record labels, find ways to exploit their ‘property’. That is, it must be prepared to change and evolve. We must stop comparing the now to the 1970s/80s. Copyright and methods of distribution have changed quite significantly since. Historically, this has been done through lobbying for a more owner-friendly legal approach, at the expense of the consumer, instead of actually coming up with new viable business models. For example, the very robust anti-circumvention elements that popped up in US DMCA and the parallel EU InfoSoc Directive seem to have come about via the creative industries’ – or as I like to call them, entertainment industries’ – lobbying. Was it pressure from the very same lobbyists that led to the US Congress passing the Sonny Bono Act? Napster, well, we know what happened there, hashtag Metallica.

The industry will survive. It has always come through significant technological changes somewhat unscathed. It does so by finding new means to exploit its property, property that was created via copyright. That is, it does eventually find new methods of exploitation but only after it realises that it is probably best to adjust to the new ways of distribution/consumption that have evolved. The day of album sales as the primary source of revenue, and as a financial indicator to how well a performer is faring, is now well in its twilight zone. It is naive to write about the health of the music industry by simply looking at the decline in album sales. The diagnosis will inevitably be terminal. 

The big artists are now brands, their image managed and merchandising looked after by a team of IP lawyers. New streams of revenue have developed and are growing as I write, from the concept of crowd-funding where music is treated like a commissioned work – a kind of first-you-pay-then-I-will-create basis – to the idea of ‘fairtrade music’. It shows that perhaps some of the people behind the exploitation of copyright-protected music are as creative, if not more in some cases, as the actual songwriters. 

This business creativity, financially successful or not, is nothing new, from David Bowie issuing bonds on his future income in 1997 to Radiohead’s pay-what-you-want experiment, via the internet, with In Rainbows ten years later (the band actually made about $0.15 more per album than it would have had through a conventional label release). 

Yet using the internet to disperse your songs had been done before then by the Grateful Dead, Beastie Boys and Bowie. Radiohead, however, gave the decision on how much their work was worth to the listener – successful this time, because of their superstar status. 

It's all about the balance ..
But how do you keep it?

But this can’t last forever as copyright must also endeavour to keep a balance between the author and a public that has quicker and ‘illegal’ ways to access the author’s works. 

The industry depends on copyright, and therefore the real question Taylor Swift should have been posing is: will copyright survive? 

I believe that it can only do so if it retains its flexibility, via its exceptions. The real issue, I believe, is not if the industry will survive but the music that can be exploited, and the fact that some of that music is actually protected by law and for such long terms – "The forms of hit songs are so strictly standardized, down to the number of beats and the duration, that no specific form appears in any particular piece", wrote Adorno in 1938. 

Perhaps it is time to better divide the different categories that can enjoy the protection of copyright and perhaps develop different tests of originality. That is, develop a clearly defined off-shoot set of rights just for musical creations, under the copyright tree. As it stands now, as music is art and art is rare and valuable, and if by valuable we use a monetary standard, well, then Happy Birthday is the most artistic piece of music ever written. 

And remember, the 1980s was a golden age for the industry and not the norm. How excited were the labels when they knew they could get a listener who owned a tape to buy the same album on the spanking new CD?