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The Live Music Forum Copyright Campaign

 

Westminster Media Forum on Copyright

Westminster Media Forum Keynote Seminar on UK Copyright Policy


Whitehall, London 5th July 2019

“The Westminster Media Forum is strictly impartial and cross-party, and draws on the considerable support it receives from within Parliament and Government, and amongst the wider stakeholder community. The Forum has no policy agenda of its own. Forum events are frequently the platform for major policy statements from senior Ministers, regulators and other officials, opposition speakers and senior opinion-formers in industry and interest groups. Events regularly receive prominent coverage in the national and trade media.“ (Westminster Media Forum)

The WMF regularly stage seminars in London which are open to the movers and shakers in their respective areas, aimed at encouraging that particular industry towards maximising its contribution to the national economy.

In 2012, when the Live Music Act became law I took part in a Westminster Media Forum on Live Music and was overawed, as I was sitting on the same panel as Peter Jenner who managed the Pink Floyd and put on a series of groundbreaking free concerts at Hyde Park in 1969. The Media Forums involve a wide range of people from different backgrounds, approaching the relevant subject from different angles..

At the end of each panel or expert talk there is a space for audience questions and this time, being on the other side of the microphone, I asked three questions - although I didn't get much in the way of answers it is hoped that, in future, at least two of these subjects will be included in the music industry's agenda when discussing the development of our Intellectual Property laws.

Here is an outline of some of the things discussed.

How would the proposed Article 17 work ?

The Directive's controversial Article 17 (formerly Article 13) seeks to make user upload platforms, such as Youtube, responsible for the copyright of material uploaded to its site by users. Previously, in the case of copyright enforcement, ISPs enjoyed the protection of a “safe harbour” under EU law.

Rachel Alexander, partner at Wiggin (IP Lawyers) clarified details around Article 17 and its aim to encourage user upload platforms to bear their copyright liabilities:-

A Provider must make “best efforts” to obtain authorisation when a copyrighted piece of work is uploaded.

The Provider must make “best efforts” to ensure the unavailability of work following the provision of “certain information” regarding the work's ownership..

The law is said to make provision for “exceptions” such as Criticism and Review, Parody and Pastiche and Proportionality with regard to small organisations and Startup businesses.

What is the European Copyright Directive and what will its effects be?

The European Copyright Directive is new a set of laws developed by the EU, intended to make Intellectual Property laws fit for purpose in the Digital Age. Much of the purpose of the European Directive is to introduce or amend laws to help combat Copyright Piracy.

In response to a question from the audience, Axel Voss explained that part of the European Directive called upon platforms with “massive downloads” to bear liability for the copyright of the content.

What has the response been?

While there has been an outcry from giant media corporations, much of UK Industry welcomes the European Directive.

Axel Voss is a German MEP and a key figure in drafting Directive on Copyright in the Digital Single Market. He spoke of the media campaign launched by North American Media giants last year against the European Copyright Directive, which drew thousands of protesters onto the streets in Dusseldorf (https://www.wired.co.uk/article/article-13-protests). Mr Voss claimed the protests did not arise from a grass roots movement but were more a result of the intensive media campaign from North America. (I actually recall being surprised to see a Youtube ad against Article 13 in the cinema in 2018)

What kinds of creators and businesses suffer under the current copyright system?

Max Rumney Deputy CEO of PACT (Trade Association for independent film and tv makers) explained how independent film-makers are suffering the consequences of illegal downloading. Half of their 400 members have a turnover of less than £1 million and many independent production companies spend a lot of money developing their product, often with deferred profits, depending on an elaborate patchwork of financing. Yet, some platforms cut across Copyright laws without permission, denying the production companies revenue while they themselves profit. Also, platforms with a turnover of 10 million Euros/per year still have limitations on their liability to check that copyright infringements had not been repeated after takedown notices.

Lucy Compton-Reid, CEO of Wikimedia UK, said that she thought that we were all trying to strike a balance between the open accessibility that new technology brought and the rights of organisations to receive revenue.

Co-founder of ACID (Anti Copying In Design), Dids Macdonald, spoke about copyright for designers and design law. The UK Creative Economy is worth £100 Billion/per year. But there is inequity between the copyright protection on music which lasts for lifetime of the artist/s plus 70 years, while a furniture designer or product designer has only 3-25 years copyright protection.

Will “Upload Filters” cut out cover versions? (with reference to Youtube)

Lodovico Benvenuti is the Director of the European Office of IFPI, who represents the recording industry worldwide. He answered my first question, saying that, basically “nothing would change” with regard to the legality of bands uploading videos of their gigs or performances of cover versions, once the introduction of the European Directive is complete. Lodovico kindly made time during the coffee break to enlighten me further.

It has never actually been legal for bands, or their fans, to upload videos of their covers of chart songs, for example, without permission from the copyright holder. Not on Youtube, Facebook, or any social networking site. It is a fallacy that including phrases such as “not my own work” or “not for profit” with an upload of somebody else's work puts you beyond the law.

In the case of Youtube, though, most uploads are just left without any hassle unless a copyright holder requests a ‘take down’ and Youtube’s process kicks in and the item is removed without anybody having to defend themselves in court. In many cases the rights holders can ‘monetize’ these unsanctioned uploads. That might be the answer, in fact: to allow the content to be uploaded, but give the rights holders the obligation to monetize it .

From the audience, a Director of Youtube UK addressed my question about cover versions and said they would be protected and that if the rights holder followed the correct process, revenue share resulting from the stream upload would flow straight to the rights holders.

Lodovico Benvenuti also stated that the European directive was a dynamic concept and that it is not correct to say that the EU Directive directly obliges the platforms to put measures in place, but that it is setting a standard of diligence.

What is being done to move towards a wider and fairer distribution of royalties to creators?

During the question session I asked what was being done to move towards a wider and fairer distribution to creators. One example of disparity is where a local band has a track featured on their local radio station, but their portion of the copyright is regarded as undistributable revenue, then 'aggregated' up and shared out among more successful composers or rights holders. This negligent practice is culturally and socially immoral and surely sufficient technical advances have been made to lead to some improvement in the distribution of previously termed 'undistributable revenue'.
Mr Moss was not able to answer my detailed question on the spot but agreed to refer the matter to his staff and I will be writing to him at the Intellectual Property Office to follow it up.

Further thoughts on the difficulties of creating a copyright system appropriate for everyone:

Some larger companies seemed to be taking things into their own hands when dealing with copyright infringement:

William Bush, Executive Director of The Premier League revealed that they have the single most recognised British icon in the world. The Premier League pays £3.3 Billion in tax each year and is very effective at blocking piracy. The number of illegal public broadcasts of Premier League matches has reduced dramatically in recent years.

Meanwhile, Microsoft's UK Government Affairs manager, David Frank, told us that Microsoft believed a balance had been struck with the EU copyright directive but that implementation depended on the circumstances of Brexit.

Giles Derrington (Head of Policy techUK) pointed out that a lot of the conversation was about the Tech Giants, which belied the fact that there are a lot of niche UK digital companies producing content which we can export very efficiently. And, if we concentrate on the Tech Giants which are based in bigger countries and are not thinking about the growth of UK companies, it makes it less valuable for companies to start in the UK and more difficult for middle tier companies to challenge the giants.

Axel Voss stressed the point that younger people in general remained unaware of copyright laws and the fact that it was a crime to share music and films without prior permission. Voss went on to advise the attendance attendees to use social media and continue to educate and explain copyright especially to younger people because otherwise in the future, he said, "it might not work any longer".

Simon Terrington, former director of Content Policy at Offcom, spoke in general terms about intellectual property in the United Kingdom and made the point that ultimately the future for the United Kingdom with regards to copyright was a choice between the American way or the European way. This view was later supported by an expert in lawlegal expert who told us that on its own the United Kingdom did not have its own Intellectual Property legal framework suitable for the Digital age.

Nicola Solomon, who is the Chief Executive of The Society of Authors, said we need better protection against piracy and better 'bring down' enforcement. “We can have the best copyright laws there are but unless we have a fantastic enforcement policy, there’s nothing we can do about it.”.

Tim Moss is the CEO of the Intellectual Property Office. He said, “What we do matters! It’s not about copyright policy or trademarks, it’s about making the UK innovative in the creative industries”. He added that the impact of a no-deal Brexit would be “limited”, since the UK already has its own functioning copyright system. Also that they were actively looking at some of the issues they faced including AI, which presents its own challenges.

Summary

We are all asking, creators and content managers alike, ‘How do we get the message out that Intellectual Property is important, something that we all enjoy, and which needs protecting?’.

The digital age means that our methods of protecting Intellectual Property are scattered, not cohesive – new ‘Upload Filters’ might stem the tide of illegally shared commercial material, and the European Directive, if embraced more widely, could lead to a boost in the earnings of creators.

But there’s still a disparity between and within arts: designers’ work seemingly considered less durable than musicians, and ‘undistributable revenue’ earned by smaller artists being distributed with perfect ease to the bigger fish.

It seems futile to develop a cohesive, up to date set of copyright laws unless we decide collectively, makers, audiences and distributers alike, that Intellectual Property is worth respecting.

Phil Little
The Live Music Forum

Emal: editor@livemusicforum.co.uk