Business News Labels & Publishers Legal

PRS campaign puts the spotlight back on safe harbours in wake of GEMA ruling

By | Published on Friday 3 July 2015


As you all know, we here at CMU have a team of seven analysts exclusively dedicated to assessing the relative cuntishness of the monoliths that are Google and Apple, and we can confirm that, as we head into July, a temporary blip that put the latter way ahead last month has ironed itself out, and Google is back on top. Well done Google. We’ll send you an apple pie to help celebrate your achievement.

Yes, Google, and more specifically YouTube, is back at the top of the music industry’s gripe list, with the so called safe harbours that the video sharing site exploits at the heart of a new campaign by the UK music publishing sector’s collecting society PRS For Music, which goes by the name Streamfair.

True, the campaign also includes commitments for simpler and faster licensing of legit digital services, while promoting the value of musical creators and some basic copyright education, but the key objective of the initiative is expressed thus: “clarity is needed on who can benefit from ‘safe harbour’ provisions”.

Noting that PRS income from streaming services exceeded download monies last year, and that its research shows 90% of UK consumers have now accessed some kind of streaming content platform, the rights group says: “Some online content providers, such as user generated content services, relying on what are known as ‘safe harbour’ provisions to avoid obtaining a licence or paying proper licence fees, are threatening the long-term sustainability and growth of the online music market”.

By “some online content providers”, they really mean Google’s YouTube.

The launch of PRS’s Streamfair campaign comes hot on the heels of a mixed-bag ruling in the German courts this week in the long running dispute between YouTube and the PRS of Germany, GEMA, which unlike its counterparts elsewhere in Europe, has been a long-term vocal critic of the video sharing site. This week’s judgement in Hamburg responded to appeals made by both Google and GEMA in response to an earlier ruling back in 2012.

At the time of the 2012 ruling, GEMA claimed a victory in this legal battle, because the court said that once YouTube had been made aware that a song controlled by the collecting society had been uploaded without permission the video site had a responsibility to ensure that work did not then reappear.

YouTube, of course, argues it is already doing just that with its Content ID system, which attempts to automatically spot copyright infringing material as it’s reuploaded and block it. But GEMA argues that Content ID requires too much effort on the part of the rights owner, who has nothing to gain if they choose to block rather than monetise any tracked content.

It was this part of the 2012 ruling that YouTube appealed, but the appeals court this week reaffirmed the video site’s responsibilities. Though it still remains unclear what the court thinks YouTube should be doing beyond the current Content ID system to be fulfilling their responsibilities under German law. A more detailed written court ruling due to be published later this month may offer more guidance.

But neither the 2012 ruling nor this week’s appeal were a complete win for GEMA, because the basic principle of the ‘safe harbour’ was upheld. As much previously reported, this is the principle that says (amongst other things) that online services that allow users to upload content cannot be held liable if said users choose to upload copyright infringing material, providing the service has a system in place via which rights owners can have infringing files removed.

YouTube generally operates using the safe harbours provided by American law, though similar provisions in European law means it can get away with that system over here too. The other strand of GEMA’s long running litigation tested this point.

The society argued that YouTube should not just be reactive in removing infringing content, rather, to avoid liability for infringement, it needed to be proactive too, actively looking out for infringement on its networks itself. But on that point the German courts have sided with YouTube.

It means that while the video site may have to step up its Content ID system – the court said that in seven out of twelve examples raised by GEMA the video site had not removed infringing content fast enough – nevertheless the basic principle of the safe harbours outlined above still stands.

However, copyright law is under review in Europe, and it’s been clear since the start of this year that the music rights sector wants the safe harbours in European law revised, so that while internet service providers and server-hosting companies still get protection, sites that allow users to upload content but which then re-aggregate that content and monetise it, should not.

Labels and publishers hope that putting more obligations on YouTube would strengthen their hand at the negotiating table, forcing the Google site to pay better royalties to rights owners, artists and creators.

Record industry trade groups like IMPALA and IFPI have already been vocal on this issue, and the songwriters and publishers have been joining in of late too.

And in its Streamfair campaign, PRS says a lack of clarity in European law over what kind of services should benefit from the safe harbours “has deprived creators of the ability to consent to the use of their works. This has resulted in a transfer of value from the creative industries to the technology platforms, to the detriment of consumers and the UK economy”.

Or, in the words of PRS boss Robert Ashcroft: “It is unacceptable that some online content providers use ‘safe harbour’ provisions either to make token payments or avoid the need to pay a licence altogether by insisting that they are not liable for content even though their business models are predicated on monetising the creative works they carry”.

He goes on: “Furthermore, it’s not right that legitimate, fully licensed digital service providers have to endure the resulting unfair competition, which is stifling their growth and potential profitability. Unfair competition with free services is a problem that will not fix itself and requires intervention from the legislator… that’s why Streamfair is a timely and crucial campaign”.

Expect much more of this from the music industry over the summer. Though word has it that top twonks at Google remain confident that, through Content ID, they are fully compliant with both the word and the spirit of the law as it’s currently written, and that even a tightening up of the wording around safe harbours in Europe wouldn’t impact on their operations.

And presumably the web giant’s mighty lobbying machine is already rumbling away with the aim of influencing any re-writing that does indeed occur. Cunts.

So there you go. Bad Google. And just in case there was any doubt in the Apple v Google debate, well, look at this, PRS has confirmed a licensing deal is now in place between the collecting society and Apple Music, and that the tech giant will remunerate publishers and songwriters from the off, even during that big three month free trial. Swift Payments as we now call all such royalties.

Says PRS’s Head Of Online Ben McEwen: “We’re excited about Apple Music. Streaming is fast becoming the dominant means of music discovery – and for our members to earn royalties for their work online. Every new licensed streaming service gives a boost to both the tech and creative industries and underlines just how vital collaboration is to ensure there is a healthy, thriving market for digital services, music makers and music lovers alike”.

Yay Apple! They’re still cunts though. And why has no one sent me any apple pie yet?