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US music industry urges EU ambassador to back safe harbour reform

By | Published on Friday 4 November 2016

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The American music industry has urged the country’s ambassador to the European Union to find himself a big fat soap box, set it up in Brussels High Street (Brussels has a High Street, right?), adopt the musical key most suited to his vocal chords, and sing the praises – at the highest possible volume – of article 13 of the proposed European Copyright Directive. Quick, what rhymes with “directive”?

As previously reported, article 13 of the European Union’s proposed new copyright directive is the one that attempts to limit the reach of those bloody safe harbours when it comes to “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users”. Which is legislative code for “YouTube”.

The article is, said a letter signed by no less than 22 US music organisations earlier this week, “a welcome and enormously important development for American music and the entire American creative economy”. The country’s ambassador to the EU, Anthony L Gardner, should therefore, they insisted, get publicly behind the proposal, which is now working its way through the European law-making motions.

Of course, both the European and US music industries have been campaigning hard on the safe harbours issue, arguing that when said safe harbours were inserted into European and American law in the 1990s to protect internet companies from liability for the copyright infringement of their customers, it was never intended to enable opt-out streaming services like that run by Google’s YouTube.

The record companies and music publishers argue that, by exploiting the safe harbours, YouTube has been able to secure itself a much more preferential deal from rights owners, meaning the royalties paid by the video site are much lower than those paid by audio streaming services like Spotify and Apple Music.

In particular, the YouTube deal doesn’t usually include minimum guarantees for labels and publishers, meaning their income only goes up when more ads are sold, not when more videos are streamed. This difference in the monies YouTube pays compared to the full-on streaming music platforms is what’s often referred to as the bloody “value gap”.

“How dramatic is this gap?” asks the music industry’s letter to Gardner, which was signed by all the key US music industry trade bodies and collecting societies. “By way of example, while Spotify paid music creators $18 per user in 2014 (the last year of available data), it is estimated that YouTube (which exploits [safe harbours] to acquire below-market rates) delivered less than $1 per user to music creators in 2015”.

Safe harbours are also up for review in America, but that’s a Copyright Office-led initiative, rather than actual legislation on the table to potentially increase the copyright obligations of YouTube-type platforms. Therefore European developments are much more solid. Though, as currently written, article 13 remains a little vague on exactly how those extra obligations would work in real terms, plus the proposals could as yet be reworded.

Either way, reckons the letter, Gardner should support the music industry’s efforts to make that section of the new copyright directive work, to help safeguard the interests of the American music business in the European market. Concludes the letter: “We hope and expect the American government will protect its vibrant music industry and all American creators by supporting article 13 of the proposed EC Copyright Directive”.



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