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Songs industry joins record business in shouting about safe harbours

By | Published on Friday 22 May 2015


Just in case you thought the music industry had gone a whole week without shouting about safe harbours, don’t worry, we had a PRS AGM and the Ivors, both prime opportunities for music business representatives to have a grand old moan about tech giants exploiting the intricacies of copyright law to their commercial advantage.

As previously reported, the so called safe harbours of American and European copyright law have quickly risen to the top of the music industry’s piracy gripe list this year, usurping Google as enemy number one, except that moaning about ‘safe harbours’ is really just code for moaning about Google, it being the by far the biggest beneficiary of the ‘mere conduit’ get outs, certainly in Europe and North America.

If you’re secretly confused as to what exactly these safe harbours are that we’re all meant to be getting so angry about, may I suggest you get yourself a copy of the recent CMU Trends Report that explained it all, or just come along to our upcoming CMU Insights seminar on all things music licensing, during which everything will become super clear.

But if you insist on a TL;DR, well, safe harbours allow Google to circumvent liability for copyright infringement when it hosts or links to infringing content providing [a] the hosting/linking is the result of user or automated actions and [b] it has a content/link takedown system in place. It’s how Google can run YouTube as a streaming service where rights owners have to opt out rather than opt in.

And confirming that it’s not just the record industry that is getting tetchy about the safe harbours in 2015, Robert Ashcroft, boss of the UK publishing sector’s collecting society PRS, used a big chunk of his speech at the organisation’s AGM earlier this week to hone in on the issue.

Noting the music industry’s moderate successes in curtailing the growth of file-sharing, Ashcroft mused: “[But] who needs to pirate music when it can be accessed for free from sites that claim that they can operate without a licence, or others that hide behind the legislation to set their own rules as to what token payment they will, or will not, make? How can it be that user-generated content services can use safe harbour legislation to avoid the need to pay a licence and insist that they are mere conduits of content when their business models are predicated on monetising the creative works they carry?”

Telling his audience that he’d prefer it if Spotify cut back the content available on its freemium level in a bid to provide a greater incentive for consumers to sign up to premium, Ashcroft conceded that “they have to compete with user-generated content platforms, which have all the content anyway. Even when Beyonce made her new single ‘Die With You’ available exclusively on Tidal it was available on YouTube within minutes”.

He went on: “Taylor Swift is still absent from Spotify, but available on YouTube. And for those consumers who have little awareness of copyright, YouTube will helpfully point them to apps that will enable them to download streams from the service and strip ads from them, effectively offering a music experience equivalent to Spotify Premium – for free”.

“Meanwhile, Spotify can’t feed its subscription layer without bringing consumers into the ad-funded layer, and they can’t get them into the ad-funded layer unless they have all the content that is available on UGC platforms. If they don’t carry Taylor Swift or Beyonce they’re not only at a pricing disadvantage, but also at a content disadvantage. This is unfair competition”.

Continuing on that theme, the chairman of songwriter group BASCA, Simon Darlow, used his speech at yesterday’s Ivor festivities to likewise lay into tech firms relying on safe harbours to build content businesses.

He said: “We are all well aware that streaming is becoming the dominant means of listening to music, as ownership dwindles. But streaming has not yet proven that it can provide viable income for future generations of songwriters and composers. This is largely because some companies exploit safe harbour legislation to avoid paying a fair value for music and thereby compete unfairly with those that do”.

Addressing the smattering of tech firms in the room, he continued: “For those of you here today whose search engines provide links to software that enable people to steal songs from a service that is only licensed to stream, you are undermining the value of our music”.

“For any of you whose company maintains that it only has to pay if it monetises our works, you too are undermining the value of our music. For any others out there who remain unlicensed, and rely on notice and takedown, you are accessories to the theft of our music. All of you are making it virtually impossible for licensed businesses to thrive and grow. All of you are helping to kill songwriting and composition. If you value your future, please help us have a future by respecting the value of our work”.

So take note “those of you”. But mainly Google. And possibly SoundCloud. And Daily Motion if you’re French. And expect plenty more safe harbour shouting as the European Union’s review of copyright rules continues to go through the motions this summer.

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