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Lyor Cohen talks data and transparency in latest article thirteen diss

By | Published on Wednesday 21 November 2018

Lyor Cohen

So today’s Article Thirteen Letter Of The Day is from your fab friend, your best bud, your old mucker, Mr Lyon Cohen, aka YouTube’s top music man. And, it transpires, he is concerned. Deeply concerned. Very deeply concerned. Which is why he’s decided to take to the good old fashioned YouTube For Artists blog to put the record straight. Finally!

“I recently met with artists, policy makers and partners in Europe to find a better way forward on article thirteen of the European Copyright Directive”, writes the man himself. “In my conversations, there was one question that never came up: what will happen to artists if the European Parliament version of article thirteen is implemented as law?”

I don’t know what conversations Cohen has been having, and who was taking part in those chinwags, because I’ve heard that question asked loads in relation to the latest copyright reforms in Europe. But either way, the YouTube music boss has the answer. “The answer is”, he says, “the music industry will make less money from YouTube, not more”. Yeah, you read that right people, less money.

And it’s the little guys who will lose out most. As usual! “Emerging artists will find it harder to be discovered and heard on a global stage”, Cohen claims. “In short, the Parliament’s version of article thirteen will harm the very creative industry it seeks to protect. I’m deeply concerned that people don’t understand these consequences, so I want to set the record straight”.

Article thirteen, of course, you all know, because we’ve now told you thirteen billion times, is the safe harbour reforming bit of the European Copyright Directive. Safe harbours protect internet companies from being held liable when their customers use their networks and servers to infringe copyright. But the music industry accuses YouTube of exploiting safe harbour to build a streaming service without paying market rate royalties.

The liabilities of user-upload sites like YouTube are increased by article thirteen. The music industry argues that this will just require Google to spend a bit more money on its video site – on both rights management and its licensing deals. But Google says that the new liabilities will mean it will only be able to allow the bigger content makers to upload videos.

Right now, the European Parliament, the European Commission and the EU Council are negotiating the very final draft of the directive. And YouTube has been trying very hard to water down the safe harbour reforms, with both the company’s CEO Susan Wojcicki and Cohen speaking out at every possible opportunity.

Those interventions generally follow a familiar path. They usually begin – as Cohen does in his latest open letter – by stating that YouTube has already invested loads in its rights management platform Content ID and handed over stacks of cash to the music industry. Then they usually argue that it’s the grassroots creators who stand to lose out if new liabilities force YouTube to take more responsibility for its users content.

In a recent letter to the FT, Wojcicki also honed in on the music industry’s big music rights data problem – the fact that there is no one-stop place that will tell you what song is contained within what recording, who performs on the record, who wrote the song, and who controls what elements of the copyright where. Plus disputes routinely occur between music industry stakeholders over rights ownership. All of this will make it impossible for YouTube to ensure all music uploaded to its platform is fully licensed, the Google company argues.

Cohen follows Wojcicki’s lead in dwelling on that data point in his new missive. “There is no consensus within the music industry on license and rights ownership”, he writes. “Well over 50% of music has some portion of unknown ownership. It’s a black box that often pits music collecting societies, publishers, labels, and even artists against one another in a fight for who owns what”.

Beyond disagreements over ownership of any one song or recording, Cohen then throws song-theft disputes into the mix as well. “Take, for example, the lawsuit against Ed Sheeran alleging his song ‘Thinking Out Loud’ contained music from Marvin Gaye’s ‘Let’s Get it On’. Or the legal battle over Justin Bieber’s song ‘Sorry’ where an artist claimed Bieber and Skrillex stole his song’s hook. These lawsuits happen frequently”.

Which is true, they do. And they often grab the headlines too. Which is why Cohen could have quite easily discovered – maybe via a Google search – that it was White Hinterland who made those accusations against Bieber and Skrillex, and she is a woman.

Though, while those plagiarism disputes are more newsworthy, I don’t think anyone is really suggesting that the writers of the Gaye track could go after YouTube whenever Sheeran’s song is streamed, because by that logic every digital platform would also be liable when someone played ‘Thinking Out Loud’.

I suppose the big song-theft legal battles are more starry than the never-ending debate over who should build the uber-music-rights database. Though it’s that debate that is key here, because Wojcicki and Cohen are both right to point out that those data problems are an issue.

Cohen also includes one new argument in his latest article thirteen moan, which is that – where artists and managers are also down on YouTube – it’s because the bloody labels aren’t sharing enough information with said artists for them to form educated opinions.

“The creative community has an incomplete picture of how much we pay”, he writes. “There is a lack of transparency between the money YouTube pays to labels and the money artists see in their pocket. To fix this, we commit to disclosing revenue earned on YouTube to artists and songwriters directly IF their labels and publishers waive their contractual prohibitions that prevent us from doing this. We welcome more transparency so we can put to rest false accusations from the IFPI and others about our payments”.

The less talked about article fourteen of the European Copyright Directive seeks to provide more transparency for artists and songwriters over how their music is used in the digital domain, and it’s interesting to see Cohen jump into that debate to try to divide the artist community from the labels when it comes to article thirteen. The dig at the IFPI relates to its statement last week disputing YouTube’s claim that it handed over $1.8 billion to the music industry in the last year.

Cohen concludes: “Fortunately, article thirteen is not yet set in stone. We can still shape the outcome. I encourage everyone in the creative community to stop what you are doing and learn the details. Do not leave this up to someone else. Please take a moment to learn more about the impact of article thirteen”.

“Let’s create a dialogue”, he suggests. “Let’s ensure we build a better way forward in collaboration with the creative community that doesn’t clamp down on the new growth our industry is experiencing”, he proposes. “Let’s do the responsible thing and ensure that artists and songwriters can continue to find new audiences, connect with their fans, and earn a living making music”, he insists. “It’s your industry. Protect it. Own it”.

Given Wojcicki’s recent letter to the FT resulted in immediate responses from IMPALA (“let’s not get distracted”) and PRS (“fake news, untruths and alarmist propaganda!”), who wants to write the music industry’s response to Cohen?