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Article thirteen talks to push into new year as music industry expresses concern about latest compromise

By Chris Cooke | Published on Friday 14 December 2018

Further discussions on a final draft of the new European Copyright Directive this week failed to reach agreement, which means that the whole matter will now be pushed back into 2019. Further discussions are now scheduled in for the third week in January.

The two most controversial elements of the copyright reforms – the news industry supported article eleven and music industry backed article thirteen – remain the key sticking points. Both pitch copyright owners against the tech sector, and Google in particular, and all sides continue to lobby very hard indeed.

It’s more than two years now since the European Commission published its first draft of the new copyright directive, which seeks to update copyright regimes across the EU so that they work more effectively in the digital age.

This year the EU Council and the European Parliament both agreed their own amended versions of that directive, and now the three institutions – Commission, Council and Parliament – are locked in talks to agree a single final version, what is known as the trilogue phase. There were further talks this week.

Article thirteen, of course, seeks to reform the copyright safe harbour which says that internet companies cannot be held financially liable for any copyright infringement undertaken by their customers on their platforms, providing they offer some kind of takedown system for rights owners.

The music industry argues that user-upload platforms like YouTube have exploited the safe harbour to force record companies, music publishers and collecting societies into accepting mediocre licensing deals, which means that the Google site pays much lower royalties than the other music streaming services it competes with.

To that end, article thirteen seeks to increase the liabilities of user-upload platforms. YouTube, of course, has been going to great lengths to reduce the impact of article thirteen, arguing that in its current form the proposed new liabilities will force it to dramatically alter its service in Europe, preventing grassroots creators from uploading any videos at all.

The music industry counters that YouTube and Google are deliberately misrepresenting what article thirteen says, and simply don’t want to have to pay royalties to music makers more in line with their competitors like Spotify and Apple Music.

Both the revised versions of the directive, and especially Parliament’s version, beef up the safe harbour reforms that were contained in the Commission’s original draft.

Which is why YouTube has gone into overdrive with its campaigning recently, hoping that it can water down article thirteen in the very final trilogue phase. The nature of that campaigning has been criticised by many, certainly within the music community, but also by politicians in Brussels and Strasbourg too.

Indeed, Google’s tactics have been criticised throughout the year. When Parliament was voting on its amendments, Google was accused of ‘astroturf’ campaigning, by funding what appear to be informal grassroots groups of concerned citizens, but which are actually representing major corporate interests. Those campaigners also employed automated moaning technology to make it appear like there was much wider public concern about the copyright reforms than there really was.

Those tactics ultimately back-fired following various media reports about Google’s approach, with the Parliament ultimately voting through numerous controversial amendments that favoured the copyright owners.

More recently the web giant – which is now more openly campaigning in public – has been accused of employing pester power, by pushing doom and gloom messaging at its young userbase, the implication being that they should pass Google’s concerns on to their parents, who might then want to contact their MEPs. That approach has also been criticised, and for a time it looked like this phase of Google lobbying could backfire too.

Though yesterday a consortium of companies and trade groups speaking for the music and wider copyright industries published an open letter expressing concerns about the article thirteen compromise currently being proposed by the European Commission. Those concerns seem to suggest that perhaps YouTube’s last minute lobbying push is having some effect, with the open letter arguing that the current compromise will make article thirteen ineffective and could even make things worse for copyright owners.

Most strands of the music industry are signatories of the letter, including trade bodies like IFPI and IMPALA speaking for the labels; ECSA, GESAC and IMPF speaking for songwriters and publishers; and IAO speaking for artists. Meanwhile French media conglomerate Vivendi basically signed the letter three times – in its own right, via its TV and movie division Canal+, and as a member of IFPI via its Universal Music business. Trade groups for the movie, TV, news and book industries were also among the signatories.

The letter states: “As we reach the very final stages of this process, and negotiators seek to finalise a compromise text, we urge you to remember that the overall aim of the original European Commission proposal was to correct the distortion of the digital market place caused by user-upload content services, which enable users to upload content onto their sites and then profit from the availability of creative content without returning fair revenues to rightsholders, who create and invest in such content”.

Returning to the good old ‘value gap’ term – referring to the difference in the royalties paid by YouTube compared to Spotify and Apple Music – the letter says that only the safe harbour restrictions outlined in existing drafts of the directive will “meaningfully address” this issue.

“Moreover”, it says, new rules should encourage user-upload platforms to get licences from rights owners, but only “where the rightsholders are willing to do so”. Which means that the copyright industries desperately don’t want the outcome of all this to be a new compulsory licence granting user-upload platforms access to content at set rates.

The letter then says that “unfortunately, for a number of reasons, the text now put forward by the European Commission would need fundamental changes to achieve the directive’s aim to correct the value gap”. To that end, it urges all parties to consider a number of things while negotiating a final draft of article thirteen.

In particular, that “solutions that seek to qualify or mitigate the liability of online content sharing service providers (OCSSPs) should be considered with an abundance of caution to avoid the final proposal leaving rightsholders in a worse position than they are in now. Any ‘mitigation measures’, should they be offered to OCSSPs, must therefore be clearly formulated and conditional on OCSSPs taking robust action to ensure the unavailability of works or other subject matter on their services”.

Which is a waffley way of saying that the final version of article thirteen shouldn’t have so many gets outs for YouTube so to render it useless, or new obligations on rights owners to sign-post their content online, that will actually put the music and other copyright industries in a worse position than they are currently.

“While it may be appropriate for rightsholders … to give services access to reasonably necessary identifying information concerning unauthorised works or other subject matter”, the letter says, “unclear or open-ended provisions potentially obliging rightsholders to play the main role in preventing unauthorised uses of their works fail to provide the necessary legal certainty and therefore fail to provide a meaningful solution to the value gap”.

And so it continues, with the ongoing shouting of “value gap!”, “save music!”, “think about the unintended consequences!”, “it’ll kill the internet!”, “fucking YouTube!”, all set to continue well into the new year. Happy Christmas everybody!