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Music industry responds to YouTube’s latest article thirteen claims

By | Published on Thursday 22 November 2018


The back and forth between YouTube and the music industry over article thirteen of the European Copyright Directive continues. You’d be forgiven for thinking that there is nothing left to say about this particular bit of European copyright reform, so many op-eds, open letters and public musings have there been from both sides. And you’d be right. There isn’t really anything left to say. But, possibly on the assumption that the last person left talking will get their way, everybody is still talking.

Gamekeeper turned poacher Lyor Cohen – now YouTube’s music chief – made his latest contribution to the debate via the video site’s artist blog earlier in the week.

He insisted that the European Union’s plans to reform the copyright safe harbour would result in the music industry making less money from YouTube not more. Grassroots artists would suffer most, of course. And the real problem was data and transparency in the streaming sector, not web giants exploiting copyright law loopholes to sneakily build streaming services without paying the going rate royalties to music rights owners.

Cohen also repeated what has seemingly become YouTube’s mantra in this debate, which I’m pretty sure can be summarised as: “We love article thirteen except for all the words”.

Article thirteen, of course, seeks to reform the safe harbour that says that internet companies cannot be held liable for the copyright infringement of their users. The music industry argues that companies like YouTube have exploited that safe harbour to get better rates from labels, publishers and collecting societies than their rivals like Spotify and Apple. Article thirteen would increase the liabilities of user-upload sites in particular. YouTube argues that those new liabilities would stop it from taking videos from all but the big content firms.

While Cohen’s arguments about ongoing music data issues and the lack of transparency in the streaming sector were both sound, the music industry has again hit out at his core claim that article thirteen will stop individual creators from sharing their content online. The music community reckons these claims are “fake news” – even when delivered by ex-record industry execs like Cohen – and that all the proposed safe harbour reform will do is force Google to spend a little more of its money on rights management and licensing deals.

Among those responding to Cohen’s latest blog post was Geoff Taylor, boss of the UK record industry’s trade body BPI. He began by noting YouTube’s current insistence that it supports the basic aims of article thirteen, just not the specifics of how it will work.

“We are pleased”, Taylor wrote yesterday, “that YouTube now claims to support the premise of article thirteen – namely that artists and labels should be paid fairly. However, this is difficult to square with its ongoing carpet-bombing propaganda against that provision, which feels like a challenge to the legitimacy of the democratic process”.

Insisting that law-makers in Europe have properly considered all the arguments and all the ramifications in the discussions that led up to the drafting of article thirteen, Taylor went on: “YouTube now seems to be trying to scaremonger the EU into reversing decisions taken after a full debate, because it doesn’t like the outcome”.

The BPI chief added: “Lyor Cohen argues that ad-supported revenues are helping to fuel music industry growth. That’s far from our experience. Despite many billions of views, ad-supported video now generates less than half the revenue labels make from vinyl, and only one-sixteenth of the revenue from premium subscriptions. This problem needs to be fixed”.

YouTube is part of the solution, Taylor conceded, but only if it accepts the copyright law reforms that the music industry deems necessary. “It’s time for YouTube to respect the EU legislative process and focus its energy on working with labels to grow the value generated by recorded music”, he said. “For example, through its excellent new YouTube Music subscription service, rather than trying to protect an outdated safe harbour that has given it an unfair advantage over both competing services and individual musicians and creators”.

Meanwhile, trade organisations representing labels, publishers and collecting societies across Europe and beyond put out a joint statement yesterday echoing Taylor’s response, and also earlier open letters from the bosses of IMPALA and PRS that responded to an article written by YouTube CEO Susan Wojcicki.

The joint statement came from ECSA, which represents songwriters in Europe; GESAC, which represents the song right collecting societies in Europe; IMPALA, which represents the indie music sector in Europe; and the global trade bodies for the music publishers and the record companies, ICMP and IFPI respectively.

Together they said: “YouTube’s campaign against article thirteen of the Copyright Directive shows a lack of respect for the EU democratic process of law-making. The revisions to the directive have been under discussion for over four years already and the three main institutions of the European Union have all given their position”.

“The Commission, Council and Parliament have all reached the same conclusion”, they went on. “There is a value gap, also referred to as a transfer of value, where user-upload services are making vast sums of money on creators’ content uploaded by their users, but not paying the right holders who own that content fairly”.

“The result is a serious distortion in the European digital market place which harms right holders, other digital services and citizens”, they continued. “To correct that situation, platforms like YouTube should have to take responsibility for the content they use and monetise, by fairly remunerating their creators and right holders”.

Dealing with YouTube’s specific arguments in particular, the trade groups note how the Google company “constantly refers menacingly to ‘unintended consequences’ if the directive is adopted, and threatens to block content, instead of showing willingness to observe laws and fairly remunerate. In fact, the directive will bring fairness”.

Then pointing out that thousands of artists, songwriters, publishers, labels and managers have backed the wider music industry’s campaign for safe harbour reform, the joint statement concludes that: “YouTube’s eleventh-hour campaign of fact-free fear-mongering should be seen for what it is: an attempt to derail the EU democratic legislative process”.

So there you have it. The ball is back in YouTube’s court. It’s currently busy inserting article thirteen warnings into everyone’s YouTube app. But I suspect it will still find time to throw back a few more arguments at the bloody music industry as the final bits of deal-making are done in Brussels and Strasbourg to make the new European Copyright Directive law.

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