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Music industry says proposed new regulations of online platforms are a good start but need work

By | Published on Wednesday 16 December 2020


Both the European Commission and the UK government yesterday unveiled proposals for new laws that will regulate online platforms. Although copyright protection is not core to these proposals, the music industry hopes that – as lawmakers seek to combat illegal content online – any new rules will also include additional measures to stop copyright infringing material from being posted and shared.

The responsibilities of large internet companies that allow third parties to post and share content have become a big talking point in political circles in recent years. Much of the conversation to date has focused on the distribution of extremist, violent and abusive content, as well as misinformation and disinformation. Although all of that is often grouped together under the banner “illegal content”, which obviously covers a wider range of material.

The general consensus is that large internet firms are not currently doing enough to block and remove this kind of content and that new laws are required to increase the legal obligations of said firms in this domain, so to force them to act.

The tech sector, while insisting it takes all of these things very seriously indeed, obviously would prefer not to face new legal obligations, and to that end generally urges politicians to be cautious when writing any new laws, talking quite a lot about the “unintended consequences” of any proposed new rules.

As is always the case when internet regulation is discussed, the tech sector is often supported in opposing at least some of the proposed new regulations by free speech advocates, some of whom are raising legitimate concerns regarding the impact new internet laws may have on freedom of expression.

In the EU, the proposals for new internet laws come in the form of the Digital Services Act – which looks at the obligations of large internet businesses when it comes to policing content on their networks – and the Digital Markets Act – which seeks to stop the largest internet businesses unfairly exploiting their market dominance. The proposals will likely ultimately result in new EU-wide regulations and amendments to the EU E-Commerce Directive.

Unveiling the proposals yesterday, European Commissioner Margrethe Vestager said: “The two proposals serve one purpose: to make sure that we, as users, have access to a wide choice of safe products and services online. And that businesses operating in Europe can freely and fairly compete online just as they do offline. This is one world. We should be able to do our shopping in a safe manner and trust the news we read. Because what is illegal offline is equally illegal online”.

Fellow Commissioner Thierry Breton added: “Many online platforms have come to play a central role in the lives of our citizens and businesses, and even our society and democracy at large. With today’s proposals, we are organising our digital space for the next decades. With harmonised rules, ex ante obligations, better oversight, speedy enforcement, and deterrent sanctions, we will ensure that anyone offering and using digital services in Europe benefits from security, trust, innovation and business opportunities”.

In the UK, ministers have published a formal response to a white paper the government published last year all about ‘online harms’. That response sets out how a new ‘duty of care’ obligation applied to internet platforms might work, and what new responsibilities that might hand to said platforms.

Launching the British proposals, the UK’s Secretary Of State For Digital, Culture, Media and Sport, Oliver Dowden, said: “I’m unashamedly pro-tech but that can’t mean a tech free-for-all. Today Britain is setting the global standard for safety online with the most comprehensive approach yet to online regulation”.

“We are entering a new age of accountability for tech to protect children and vulnerable users, to restore trust in this industry, and to enshrine in law safeguards for free speech”, he added. “This proportionate new framework will ensure we don’t put unnecessary burdens on small businesses but give large digital businesses robust rules of the road to follow so we can seize the brilliance of modern technology to improve our lives”.

It remains to be seen to what extent these legal reforms in the EU and UK help copyright industries like the music business. While the pesky copyright safe harbour, which reduces the copyright liabilities of digital platforms, is being reformed in Europe via last year’s European Copyright Directive, that doesn’t apply in the UK, and it doesn’t deal with all of the music industry’s safe harbour concerns even in the EU.

The copyright directive does increase the liabilities of safe harbour dwelling user-upload platforms, which is one of the music industry’s big safe harbour gripes.

However, music companies would also like to increase the minimum requirements of the takedown systems that all safe harbour dwelling internet companies must operate, ie the systems via which copyright owners can demand that infringing content be removed. The key ask there is for a takedown-and-stay-down obligation, so once a copyright owner has removed some infringing content once, the platform must stop it from being re-uploaded again and again.

Beyond any further safe harbour reform, the music industry could also benefit from the EU proposals to put new transparency obligations onto digital platforms, and any measures that reduce the domination of the biggest tech players. European digital music companies like Spotify, Deezer and SoundCloud will also welcome moves to constrain American tech giants Apple, Amazon, Google and Facebook.

To that end, reps for the music industry yesterday welcomed the new proposals, particularly the EU ones. Though they stressed that, from a copyright owner perspective, what has been proposed is a good starting point, but there is much more to be done.

Helen Smith from IMPALA, the pan-European trade group for the independent music community, said yesterday: “If we strike the right balance, both pieces of legislation represent opportunities to secure a more inclusive and competitive online ecosystem, where all actors can operate on a level playing field”.

“From what we have seen so far”, she added, “there is still a way to go for the legislation to achieve its purpose. At the same time, we fully support the aim of achieving a more accountable digital environment and welcome the recognition that some operators are quasi-public services with responsibilities that need to go beyond what is normally required of businesses in Europe”.,

“As a starting point, any new competition tool needs to prevent the high levels of concentration and companies with entrenched market power for indispensable trading. Cultural goods are unique and not substitutable, and the impact of market power is particularly serious in such markets. We have been calling out the inadequacy of the current competition framework for a number of years now”.

Smith concluded: “We want to see effective responsibility of all platforms, building on the EU’s work under the previous legislature with the copyright directive and platform to business regulation. A safer and more accountable internet is in the interest of everyone, citizens and businesses alike. We look forward to working with member states and the European Parliament to ensure that the voice of independent music companies is heard in this debate and that together we can achieve the digital framework which Europe deserves”.

Speaking for the music publishing sector, Director General at the International Confederation Of Music Publishers, John Phelan, said: “For too long there have been two rulebooks for the same game. We firmly support the EU’s goal of ‘what is illegal offline, must be illegal online’. However, work remains to realise this maxim. The DSA imposes a ream of welcome responsibilities on online services. It also extends some concerning paths to liability exemptions”.

He added: “The DSA is propelled by the political goal of ‘preventing harmful behaviour before it takes place’. Detecting and preventing illegal digital music can be easy thanks to existing technologies, but it is often problematic in practice as many services believe they are beyond laws. As things stand, the DSA lets some services off the hook. Some amendments to the final law will be needed so that Europe’s digital music industry will not be devalued nor creators continue to be ripped off by certain platforms”.

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