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As copyright directive debates continue in Brussels, let’s shout “value gap” again
By Chris Cooke | Published on Friday 6 October 2017
With lawmakers in Brussels still chit chatting aplenty about the draft new European Copyright Directive, and with loads of proposed amendments now on the table, representatives from across the copyright industries sent a letter this week to the MEP leading on the whole thing in the European Parliament, Axel Voss. And what did they have to say to the political man? “Value gap, value gap, value gap”. Of course!
The draft Copyright Directive has been in circulation for a year now and there is a big stack of proposed amendments being considered. Various committees in the European Parliament have inputted, and the whole thing is going back before the legal committee, aka JURI, this month. Voss was only appointed as the ‘rapporteur’ leading Parliament’s review of the copyright proposals earlier this summer, stepping in for Comodini Cachia, who quit her seat in the European Parliament to join the legislature in her home country Malta.
From a music perspective, there are three articles of interest in the draft directive: those covering safe harbour, transparency and contract adjustment. Though it’s the former that has got the most attention, and it’s that which featured in this week’s letter from organisations representing the music, movie, broadcasting, book, photo and football sectors. You know, YouTube and the fucking value gap.
States the letter to Voss: “We very much appreciate your acknowledgement of the critical issue of the ‘value gap’ which is hampering the growth and potential of our sectors. This situation is caused by inconsistent application and unfaithful interpretation of the European copyright rules by some digital platforms. [User-uploaded Content] platforms have become major distributors of creative works – all while refusing to negotiate fair copyright licences, if at all, with the right holders”.
The copyright rules being “inconsistently applied” and “unfaithfully interpreted” mainly relate to the pesky safe harbour, of course, that being the principle that says an internet company is not liable when its users use its servers and networks to infringe copyright, providing it offers copyright owners some kind of content takedown system.
The music industry argues that user-upload sites like YouTube should never have been covered by the safe harbour, which was intended for internet service providers and server hosting companies. But by claiming safe harbour protection, the likes of YouTube have a much strong negotiating hand when seeking licences from record companies and music publishers, meaning they get much better rates than the audio streaming services they compete with, meaning the music industry makes less money. Hence the value gap.
It’s hoped that the safe harbour provision in the copyright directive will put more obligations onto user-upload sites like YouTube. “We believe that the European Commission’s proposal [in the directive] provides an effective basis for a fair and meaningful solution to this issue”, the copyright groups’ letter continued this week.
And, they added, “support for robustly addressing the value gap is reflected in an overwhelming majority of amendments in several of the relevant European Parliament committees, particularly in JURI, as well as the opinions adopted [by the culture and industry committees]”. Though, the letter went on, they weren’t so impressed with proposals made by the Parliament’s consumer protection committee which, they said, would “exacerbate rather than solve the value gap problem”.
The letter muses on thus: “A meaningful legislative solution to remove the distortion undermining Europe’s creative content market must clarify … that platforms that store and provide access to copyright protected content uploaded (or displayed) by their users: undertake copyright relevant acts (ie communication to the public and as the case may be reproduction); and cannot benefit from the ‘safe harbour’ … because they play an active role by, for instance, promoting such content or optimising the presentation of it”.
“Without clarification of the two points outlined above”, the letter concludes, “there will be no solution for the producers and creators of European creative content. The creative sectors seek a fair digital market, one in which the participants can operate with legal certainty and on a level playing field”. It’s hoped, say the copyright owners, that the safe harbour clause of the new directive “stops free-riding by certain platforms and brings long-sought fairness for creators and creative industries”. Which sounds like fun.
Music bodies signing the letter include global record labels group IFPI, European indie label repping IMPALA, the International Confederation Of Music Publishers, the European Composer & Songwriter Alliance, and CISAC and GESAC representing the songwriter collecting societies.
