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Both sides get more vocal in European safe harbour debate

By | Published on Wednesday 31 May 2017

European Commission

Songwriters and composers called on European lawmakers to do more to close the bloody value gap at an event in Brussels yesterday, just as a coalition of organisations representing tech firms and libraries urged the same lawmakers to stop meddling with the copyright safe harbour. So that’s all good fun, isn’t it?

As you may remember, because I know you always pay full attention to these things, a proposed new European Copyright Directive is currently going through the motions in Brussels. It includes an article that aims to restrict the safe harbour rule that says that internet companies whose customers use their servers or networks to infringe copyright cannot be held liable for that infringement, providing said companies removing infringing material when made aware of it by a copyright owner.

Under pressure from the copyright industries – and especially the music business – the European Commission has proposed adding into law an obligation on larger safe harbour dwelling user-upload platforms to do more to monitor the content being distributed over their networks, and to proactively remove or licence copyright material.

It’s all come about, of course, because of YouTube. The music industry argues that the Google-owned video site – which is the largest streaming music platform in the world – is able to force record companies and music publishers into signing licensing deals that provide relatively poor remuneration for rights owners by exploiting the copyright safe harbour. It means that YouTube, while having the most users and streams, pays much less into the music industry overall than other streaming services like Spotify and Apple Music.

The aim of article thirteen of the draft Copyright Directive is to increase the obligations of platforms like YouTube. The music companies hope that that increased obligation will pressure YouTube into agreeing to deals that are more preferential to the labels and publishers. Though as it’s currently written, there is arguably enough wriggle room in article thirteen for YouTube to argue it is already compliant with the new obligations.

Nevertheless, there are plenty of critics of the safe harbour article in the tech sector, who argue that the new obligation will have a negative impact on innovation and free speech, and all that gubbins they say about every new copyright rule. Meanwhile in the music community, campaigners want article thirteen as it is currently written to remain unaltered, or if possible tightened up a little to remove the aforementioned room for wriggling.

At an event called Meet The Authors staged yesterday by GESAC, which brings together many of the European collecting societies that represent song rights, creators told the assortment of European politicians in the room that “unless clear and strong legislation is adopted at an EU level, free-riding platforms will continue to have carte blanche for siphoning value from creative and cultural works for their own profit, depriving Europe of one of its main economic assets: the creative sector”.

Among those speaking at the event was Oscar-winning composer Jan AP Kaczmarek, who stated that: “As creators, we need to know that there is a sound framework to ensure that those who commercially benefit from the use of our works have our consent and remunerate us appropriately. Without this very basic principle, living as a professional author with full dedication to our work is simply not possible”.

Political types also gave their support to safe harbour reform, with Pierre Sellal, France’s ambassador to the EU, declaring that: “The transfer of value, which is the massive distortion in the sharing of the value between creators of cultural content and the platforms that make them available, is today a threat both for cultural diversity and to the development of the digital single market. This is why a better sharing of the value should be a key objective for the European Union”.

Meanwhile, on the other side of the debate, an organisation calling itself Copyright For Creativity, which brings together an assortment of groups representing tech firms, libraries and digital rights campaigners, published an open letter calling for article thirteen to be scrapped altogether. The open letter was also signed by a plethora of other trade bodies.

The letter says: “The provision on the so-called ‘value gap’ is designed to provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications if they want to have any chance of staying in business. The Commission’s proposal misrepresents some European Court rulings and seeks to impose contradictory obligations on Member States. This is simply bad regulation”.

It goes on: “Article thirteen should be removed from the copyright negotiations and dealt with in appropriate contexts. We strenuously oppose such ill thought through experimentation with intermediary liability, which will hinder innovation and competition and will reduce the opportunities available to all European businesses and citizens”.

So, make of that what you will. Meanwhile CMU will moderate a discussion on all things safe harbour at MIDEM next week.