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UK government confirms it won’t implement the European Copyright Directive

By | Published on Monday 27 January 2020

Houses Of Parliament

Having last week sent a minister to Parliament’s ‘We Fucking Love The Music Industry Debate’ to declare “we fucking love the music industry!”, the UK government has now proven just how much it really loves the British music community. It has done that by refusing to implement the fucking European Copyright Directive that the entire fucking music industry has spent the last five fucking years fucking campaigning for. So that’s fun.

The confirmation came from Chris Skidmore, a minister at the Department For Business, Energy And Industrial Strategy, in response to a question from Cardiff MP Jo Stevens.

In that response, the minister notes that, assuming the UK gets its new trade deal with the European Union this year (which it won’t, but current government policy is that it will), then there will be no obligation on the British Parliament to amend its copyright laws to fall in line with last year’s copyright reforms in Europe. The government could plough ahead with making those reforms anyway, but – Skidmore says – it has no plans to do so.

Doing some nifty maths, Skidmore explains that the deadline for implementing the copyright directive is 7 Jun 2021, while his government plans to have agreed a new deal with the EU – meaning it is no longer bound by EU rules – by 31 Dec 2020. “Therefore”, he wrote in his response to Stevens, “the United Kingdom will not be required to implement the directive, and the government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process”.

For the music industry, of course, the big reform in that copyright directive is contained in what became article seventeen, which increases the copyright liabilities of user-upload platforms like YouTube by reforming the so called copyright safe harbour.

Although it’s still to be implemented across the rest of the EU, the music industry hopes that the safe harbour reform in article seventeen will remove a loophole that has allowed YouTube-style websites to force music rights owners into mediocre licensing deals.

Of course, Skidmore hasn’t said that the UK government won’t consider reforming safe harbour itself. And last week, at that ‘We Fucking Love The Music Industry Debate’, culture minister Nigel Adams insisted that the government supported “the overall aims of the copyright directive”, before adding that “it’s absolutely imperative we do everything possible to protect our brilliant creators”.

There is an ongoing government project that safe harbour reform could be neatly slotted into. That being the proposals regarding online harms and platform responsibility. The online harms white paper published by the government last year didn’t include copyright matters, much to the annoyance of the music industry. However, if the government is abandoning the copyright directive, that provides a good argument as to why certain copyright issues should now be considered as part of the platform responsibility debate.

There will likely be support outside the music industry for including copyright in the online harms project. Another element of the copyright directive that proved as controversial as the safe harbour reforms in article seventeen were the new rules that benefit newspaper owners in article fifteen. British newspaper firms – including those which publish titles that a very pro Brexit and current PM ‘Boris’ Johnson – may well also lobby for some directive reforms to be replicated in any future platform responsibility legislation.

Not that that means British ministers will necessarily back any of those copyright reforms. The highest profile opponent to both articles fifteen and seventeen was Google, of course – fifteen impacting on Google News, seventeen on YouTube. The general consensus is that Google lobbyists will have much more influence in a post-Brexit UK than they do within the European Union. Given that Google is already seeking to water down the article fifteen and seventeen reforms elsewhere in Europe, it would likely seek to have them pushed out of any new platform responsibility laws in the UK entirely.

Even if the music industry – possibly working alongside the newspapers that will hold some sway over Johnson – managed to beat the Google lobbyists and get safe harbour reform directly into UK law, there is another important thing to consider. Although safe harbour reform got all the press, the copyright directive includes other articles relevant to the music industry that are mainly about increasing the rights of artist and songwriters in relation to their corporate partners – ie labels and publishers.

Those reforms don’t really fall under the heading of ‘platform responsibility’, given that ensuring artists and songwriters have more transparency and fairer deals isn’t the responsibility of the platforms. Which means that while the music industry at large may as yet directly secure article seventeen style safe harbour reform in the UK, it may be harder for those organisations specifically representing artists and songwriters to secure the music-maker-centric copyright reforms that will be happening elsewhere in Europe.

Meanwhile, the Deputy CEO of cross-sector trade group UK Music, Tom Kiehl, has requested an “urgent meeting” with Skidmore to discuss last week’s announcement.

“Your statement is extremely disappointing”, Kiehl writes in a letter to the minister. “In particular for the many music creators across the country who have campaigned for the directive over a number of years. The directive is designed to improve the way creators in the music industry and those that invest in them are financially rewarded”.

He argues that the British music industry can only continue to increase the positive impact it has on the UK economy if “we take advantage of the opportunities provided by the changes in the copyright directive. Google-owned YouTube currently pay creators significantly less than the real value to them. Failing to implement the core principles of the directive would let Google off the hook and mean creators continue to get a raw deal”.

Noting Adams’ remarks in Parliament last week regarding supporting “the overall aims of the Copyright Directive”, Kiehl goes on “a plan must be in place to achieve these aims, otherwise government support for the proposals appears weak. We understand that the UK’s imminent departure from the EU presents challenges to taking forward the directive in its current form. However, the government should not lose sight of the fact that it played a key role in developing and agreeing to the many necessary provisions within the directive”.

Kiehl concludes: “If it is the case that Brexit presents an opportunity for the UK to write its own laws, then there is no excuse for a delay to our existing call for the government to set out a road map outlining how it intends to take forward its support for the directive’s key proposals. I look forward to your response and hope you will give your urgent consideration to the legislative mechanisms available to ensure we do everything possible to protect our brilliant creators”.