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T Bone Burnett leads music industry’s submissions to latest safe harbour review in US

By | Published on Wednesday 22 February 2017

T Bone Burnett

The slightly extended deadline for submissions to the US Copyright Office’s second round of investigation into those big bad safe harbours passed yesterday, and unsurprisingly a plethora of music industry organisations put their names to submissions calling for the great-Google-get-out of copyright law to be overhauled. Though the standout submission is probably that made by T Bone Burnett.

As much previously reported, the safe harbours say that internet companies cannot be held liable when their customers use the services or servers they provide to infringe copyright, providing said companies have a system in place via which rights owners can demand their content be removed if and when it is posted and distributed without licence.

The safe harbours were put in place to ensure that companies like internet service providers and server hosting firms could go truly mainstream, opening up the web to all. However, a wide assortment of different businesses now rely on the safe harbours, including user-upload platforms like Google’s YouTube. The music industry argues that the safe harbours were never intended to be utilised by companies which build media platforms on the back of the internet services they offer, and that the law should be amended to say so.

Although there are a number of companies which have used the safe harbours to create opt-out streaming services – ie where users upload content, and rights owners must then remove it – to date much of the safe harbours debate in the music community has focused on YouTube. The Google site does actually have licensing deals in place with most music rights owners, which share in YouTube’s ad income. But the labels and publishers argue that they are forced into signing unfavourable deals with Google because – if they don’t sign up – they’ll still have to police the YouTube platform, but without any compensation.

The music industry has been busy busy trying to get safe harbour rules rewritten in both Europe and the US, the former via the copyright review currently underway as part of the European Union’s Digital Single Market initiative.

In the US, the country’s Copyright Office announced a specific review of safe harbours – which come from the Digital Millennium Copyright Act in the States – in late 2015. That resulted in some high profile campaigning from the US music community last year. Though rather than making any recommendations, the Copyright Office announced a second round of reviewing in November.

Among the submissions to that second-stage review is a hard-hitting video message from singer-songwriter and record producer T Bone Burnett, who also sits on the advisory board of the campaigning organisation the Content Creators Coalition. His short monologue on the issue is intended both as a formal input into the US Copyright Office review, but also as a tool for trying to persuade the public at large of the need for safe harbour reform.

His message actually begins by discussing some of the wider debates around the role of the internet in modern society, and in particular the problems around fake news and conspiracy theories online, and the impact they have on political discourse.

“In its early days, the internet was hailed a panacea”, he begins. “A global community – unshackled from corporate, military or government control, ready to equalise and connect the world. One of its early false prophets named it a ‘culture of the mind’ that ‘all may enter without privilege or prejudice’. But that’s not what we got”.

He goes on: “Instead of opening up minds, it has closed them down – becoming a restrictive, abusive place where women, people of colour, and anyone marked different are shunned, attacked, and shouted down. 2016 laid bare how cyberspace hasn’t rationalised dialogue. It’s become a megaphone for propaganda and fake news where it’s easier to demagogue and divide than ever. Dreams of a stronger democracy have given way to foreign hackers and corporate manipulation – a shrivelled politics indistinguishable from reality TV”.

Shifting onto more specific issues for the artist community, he then says: “For artists and creators, instead of amplifying our voices to lead the fight for change, it undermines and silences us. The internet – with all its promise and beauty – threatens to destroy what it was supposed to save. We can’t let that happen”.

Noting that the current Copyright Office review “is focused on the legal safe harbours in the Digital Millennium Copyright Act – the law that was supposed to balance the internet’s openness with creators’ ability to earn a living wage from their work”, he then declares: “Those safe harbours have failed”.

“The problems are familiar”, he adds. “[And] they are well described in the record of these proceedings, from the broken Sisyphus climb of ‘notice and takedown’ to the gunpoint negotiations and pittance wages forced upon creators by the Google monopoly. The Big Tech ITOPIANS can track us across dozens of networks, devices and profiles to bombard us with micro-targeted ads, but they can’t even identify unauthorised copies of our work and keep them off their own servers and systems. Or they won’t”.

Keen not to be seen as the luddite in the room, Burnett then insists that creators love new technologies and that, rather, it’s the business models of the technology makers that concern him.

“The problem here isn’t technology”, he says. “Creators welcome the digital revolution and its power to connect, amplify, and inspire. A modern recording studio looks more like a cockpit than a honky tonk, and that’s just fine. The problem is business models – designed to scrape away value rather than fuel new creation, focused on taking rather than making. To restore technology’s place as the rightful partner of tomorrow’s creators, we need change”.

He then sets out the demands of the creator coalition he is speaking for…

“The safe harbours must be restored – so only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators’ work. Technology must be enlisted to make the system work better, not to roadblock progress in a pointless arms race of whack a mole and digital deception. Creators must be given meaningful tools to earn a living from their art”.

“The false prophets of the internet may have imagined an egalitarian open source creative wonderland – but what we got was a digital playground for a handful of mega corporations and web moguls living fat off the artistic, cultural and economic value everyone else creates online”.

Returning to the wider net-based challenges, he concludes: “If our democracy becomes stunted and diverse Americans are shut out, I guess these new Galtian Lords would say, ‘that’s business’. But artists and creators will never bow to that. We will never accept an internet that turns its back on the vitality, optimism and hope from which it was born. We will never allow our democracy to become a mere series of pseudo-events designed to manipulate people into spending money. Everyone with a stake in the internet’s success and the health of our creative democracy must work together to make this right”.

And finally, he says: “It’s time for Congress to close the loopholes in section 512 of the DMCA. Our culture is at stake. And it’s time for musicians to join with us, the Content Creators Coalition, to make that happen. Your career depends on it. On behalf of music creators, thank you to the Copyright Office for this proceeding and for considering these views”.

It remains to be seen if the Copyright Office recommends any changes to safe harbour rules in the US – though even if it does, further lobbying would then be required to actually get the matter on the agenda of Congress itself.

Most of the music industry’s lobbyists reckon that safe harbour reforms in Europe are much more achievable – and a section of the draft EU copyright directive published last year attempts to deal with the issue – though it remains to be seen what the final version of that looks like. Lawmakers remain nervous of the unintended consequences of restricting safe harbours too much, and with the current wording of the EU directive, it’s possible YouTube could declare itself compliant with the revised rule without actually changing its practices.

But whatever, here is T Bone Burnett’s video message: