BASCA Chair Crispin Hunt, Matthew Irons, singer, songwriter and guitarist of the Belgian band Puggy, Polish author, composer, performer and conductor Piotr Rubik,, electronic composer Jean-Michel Jarre, singer and producer; Astrid North and Cora Novoa, Spanish electronic and experimental pop music composer and DJ
BASCA Chair Crispin Hunt delivered an address to the EU in Brussels this week on the subject of the growing ‘Value Gap’.
Hunt was helping to re-launch the #MakeInternetFair petition, which includes the signatures of over 15,000 creators from across Europe – alongside representatives from GESAC, CISAC, and PRS.
The EU are currently debating the first major copyright overhaul for over 17 years.
The process aims to create a number of significant new reforms and a radically different copyright framework. A vote will take place later this year.
A delegation of European musicians, songwriters and their representatives met with the European Commissioner for Digital Economy and Society Mariya Gabriel to press home their case on Tuesday (6th March).
The #MakeInternetFair petition, which asks the EU to change the balance of value between from creators towards online platforms and tech conglomerates such as YouTube and Facebook, also makes demands for so-called ‘safe harbour’ non-liability provisions not to be abused and used as an excuse to knowingly infringe copyrighted works.
“I hereby sign and launch this petition of over 15 thousand creator signatures in the name of protecting the future of European creativity.
Not only protecting the future for professional creators but to protect each and every citizen creator and their children’s children, the value of whose creativity is being sucked out of Europe and into the offshore accounts of unaccountable tech giants.
These technology companies claim to be the guardians of freedom of speech, but if you truly believe in freedom of speech then protect creativity; protect authors, poets, musicians, filmmakers and playwrights who speak a truth that algorithms will never understand.
Because when you take the human out of the process, you can also remove the humanity.
Europe, was built upon an ideology — a social contract to care for all its citizens and the civilization they enjoy.
Putting one’s faith solely in the magic of the market will only substitute one kind of naivety for another.
The market, the consumer and the future needs culture. And culture – from the paintings on the wall of a cave in Almeria to the truth printed by the press- defines European civilization and its identity.
Remember, it wasn’t the printing press that changed the world it was the words printed on it.
A yawning chasm has emerged between the richest 1% and the unlucky 99%. Solving this value gap will go some way to address that imbalance for future generations.
Setting up the internet so that it once again runs on effective competition as opposed to monopoly is the goal the European authorities must achieve.”
Following Hunt’s speech BASCA CEO Vick Bain said, “For 3 years now BASCA has been campaigning publically for the removal of safe harbour provisions for certain online platforms such Facebook and YouTube; these intermediaries benefit from others creativity and knowingly hold infringing copyright works.
“We have the opportunity to sort this out within our reach and this petition, backed up by thousands of BASCA members, should demonstrate to the EU Commission how important an issue for creators this is.”
The Music Modernisation Act is a proposed new piece of legislation in the US that aims to reform copyright law. The two Congressmen behind it – Doug Collins and Hakeem Jeffries – say that their proposals, if passed, would “bring music licensing its first meaningful update in almost 20 years”.
Unlike most other countries, In the US there is no collecting society offering a blanket licence covering the ‘mechanical rights’ in songs, which are exploited whenever a song is copied. This means users of music must identify the owners of every song they copy, and make sure those owners receive the licensing paperwork and fixed royalty rate set out in American copyright law.
For streaming platforms such as Spotify, who exploit both the performing right and mechanical right elements of the song copyright, this has proven to be very problematic. They distribute performing right royalties to collecting societies like BMI and ASCAP, but in order to pay the mechanicals, the platforms must do that themselves. With no central database documenting music rights ownership, that’s proven to be a very difficult.
This all means that many copyright owners haven’t received the royalties that they are due which constitutes copyright infringement on the part of the streaming platforms. Spotify are currently being sued by publishing company Wixen for $1.6 billion.
This new act would create a blanket mechanical licensing system that would replace the current decentralised system. Administered by a new ‘super-PRO,’ all artist and publishers would register their tracks; and platforms like Spotify, that want to use the music, would licence it there.
It would be easy to believe that support for the new act is universal but this is not the case. BASCA Chair Crispin Hunt says: “BASCA potentially approves of the MMA as it should benefit British and EU Writers significantly but feels there are a number of details that need to be clarified before we can give our full support. The following video highlights a number of these concerns. BASCA is meeting with UK Publishers to discuss mutually beneficial resolutions to our issues with the MMA in coming weeks”.
Nitin Sawhney and Mira Calix join BASCA representatives at the Bulgarian Embassy
BASCA delivers letter to the Bulgarian Ambassador to ask for support in the protection of copyright.
On January 1, 2018, a decade after its accession to the EU, Bulgaria took over the rotating Presidency of the Council of the EU For six months. Bulgaria is now the main driving force for the tasks on the agenda of the Union, performing the functions of an objective mediator and political leader. Yesterday (13/02/18) BASCA Chair Crispin Hunt, BASCA CEO Vick Bain and members Nitin Sawhney and Mira Calix visited the Bulgarian Embassy in West London to personally deliver a letter to the Ambassador and ask for his country’s support for future creativity and culture in Europe.
One of the key priorities on the agenda of the Bulgarian Presidency is the Digital Single Market; in particular copyright legislation which aims to harmonise the essential rights of authors and of performers, publishers and broadcasters. The EU needs modern copyright rules fit for the digital age. The Copyright Directive in the Digital Single Market is the first update of copyright legislation for 20 years. The European Commission has presented legislative proposals to make sure that consumers and creators can make the most of the digital world and ensure a fairer market place for online content. BASCA has campaigned consistently for the past few years to ensure that the wording of this legislation will best protect and support songwriters and composers.
BASCA CEO Vick Bain says “The Copyright Directive is in now its final stages and so it is vitally important the voice of the music creators and performers are heard at the highest level. That is why BASCA organised a meeting with the Bulgarian Ambassador in order to ensure our points of concern over the future of music and culture in the EU are delivered directly to the Bulgarian Presidency”.
BASCA member Nitin Sawhney comments “Campaigning to ensure songwriters and composers are protected and can earn a liveable income from digital platforms such as YouTube and Spotify is an essential aspect of the BASCA mandate. In that regard, it was an honour yesterday to meet with the Bulgarian Ambassador and ensure the voice of songwriters and composers was heard in this important debate”.
The letter reads:
Dear Ambassador Dimitrov,
We are writing to you today on behalf of 2,200 of the United Kingdom’s top songwriters and composers to ask for your support in securing the best possible legal framework for the protection of future creativity and culture in Europe. We acknowledge the rich and wonderful musical heritage of the Bulgarian people and know you will share a common interest in wishing to protect it.
Music is an essential expression of European cultural identity and a robust copyright regime, coupled with strong accountability across all Creator Rights, is essential if the EU is to protect musicians and composers. Europe’s creative industries have flourished because we have had sensible laws in place to allow a fair and competitive market for content; but the growing domination of the digital environment means those laws are now in urgent need of modernising. One of your stated priorities for the presidency is the Digital Single Market. The Directive on Copyright in the Digital Single Market is that opportunity for modernisation.
In 2015, YouTube accounted for 40% of overall online music consumption but only 4% of revenue. They claim to have paid out $1billion to music industry last year, but that only equates to $1 per user per year. Compare that to the $17 per user per annum returned from streaming services like Spotify and you begin to see the inequity in the market. After a 20% cut from Google Ads YouTube takes another 45% of all advertising income on its platform. The owners of the video and the sound recording share the remainder with finally, songwriters and composers, getting a fraction of the revenue their work generates. And that is only if the works attract advertising; where there is no direct advertising then the creator gets nothing. YouTube is arguably the biggest and probably the best streaming service on the planet, yet it avoids paying properly for the content it serves by exploiting an outdated legal loophole that fails to reflect contemporary consumption habits; Safe Harbour. That is why YouTube is valued at over $70bn yet EU composers and songwriters have to share a fraction of $0.0007 per stream.
Likewise, with Facebook. Last year Forbes valued Facebook at over $400 billion, the 6th most valuable company in the world. Last year they declared over $35 billion in advertising revenue and over 2 billion monthly users of the service. Facebook are only now concluding licensing deals with the major record labels and publishers; yet music has been a key driver of their platform offer for years. We are not privy to the terms of the deal for the majors because of non-disclosure agreements but independent publishers have suggested the licenses are being constructed in such a way to avoid liability or ultimately to pay royalties.
In the Copyright Directive we have a chance to make these platforms secure proper licensing deals for all music used on their service through Article 13. This is a once in a generation opportunity to correct the ‘value gap’; the gap between how much value the platforms take from music and the value returned to the creators for the use of their works.. The Bulgarian Presidency is working on a compromise for Article 13; creators prefer the option that clarifies that the platforms, or online content sharing service providers, such as YouTube and Facebook ‘communicate to the public’ and for the Safe Harbour limitation to be more focused. This will bring them into the music value chain and will correct the drain of the value of European cultural talent and return any benefit to Europe.
There are also other measures in place in the Directive in Articles 14, 15 and 16 that are essential for the future protection of creators and citizen creators and to strengthen their negotiating power to achieve a fairer and more balanced marketplace for their work. The Directive has acknowledged the often-insurmountable difference in power between an individual composer and an international broadcast company in contractual negotiations for their works. These will go some way to correcting this power imbalance and include further obligations towards transparency, a contract adjustment mechanism (in case of a failure to exploit or proportionately share the rewards of success) and a dispute resolution system.
Now Bulgaria is leading the Council’s work; your support for the sensible and timely creator friendly reforms included in this Directive is crucial to maintaining a healthy and sustainable environment for the entire European musical community. As your chosen motto states ‘United We Stand Strong’, we at BASCA certainly hope that Bulgaria will unite with the Creators of Europe to ensure that we can indeed continue to stand strong in the Global Creative Market.
In response to the proposed Music Modernisation bill by Representative Doug Collins, BASCA Chairman, Crispin Hunt has stated the following:
“As you may know, Representative Doug Collins has recently proposed an act that is currently going through congress and the senate called the US Music Modernisation Act. Though the premise of this act is warmly welcomed by BASCA, the practice presents songwriters with reason for concern. BASCA initiated a conversation with ECSA (the European Composer & Songwriter Alliance), and have jointly written to Representative Collins to express our concerns and offer our engagement in addressing some of the issues presented by the bill. As the US is possibly the UK’s largest market, this bill will affect UK (and sadly, EU) writers’ and composers’ income streams in the future – and so it is essential that our voice is heard and appropriate amendments are made to the bill to fine tune it, so that it doesn’t disadvantage non-US composers.”
ECSA and BASCA’s letter to Representative Collins was leaked online and can be read below:
Dear Representative Collins,
We write you from the European Composer and Songwriter Alliance, Europe’s largest songwriter’s organisation representing creators from 27 European countries. Our British member BASCA, copied to this letter, who represents songwriters such as Sir Paul McCartney, Coldplay or Annie Lennox encouraged us to contact you in a matter of mutual concern.
We learnt that you proposed a new bill – the Music Modernization Act – which shall, in essence, establish a new collective licensing entity providing a blanket license for the mechanical right for online streaming services operating in the US. We are advised that whilst your bill does not expressly authorize the new collective from also licensing the performing nght, it also does not expressly prohibit the collective from doing so
As you may know, European repertoire accounts for up to 25% of the Top 100 songs played on US radio stations.1 We therefore follow with great attention copyright legislation in the US, being one of the biggest markets for European songwriters and we understand that the new collective licensing entity will also govern all foreign repertoires, including the European one
We join our US colleagues in believing that the reform of the music licensing process is and must continue to be an exceptionally high legislative priority – especially the need to raise music royalty rates to equitable levels to sustain the songwriter community.
Whilst there are many good points about 1he draft bill, we also join the views voiced by the Songwriters Guild of America (SGA) in an open letter to you dated 21 December 2017: there are a number of very serious problems set forth in the bill and in general we believe, that the bill rather favours the interests of the multi-national publishers, rather than those of individual, hardworking songwriters. Please allow me to respectfully remind you that the latter are the very justification of copyright law to exist as legal institution. In tum, publishers mainly represent their own interests, which are not necessarily congruent • with those of contracted songwriters.
Just by way of example, in Europe, collective management entities are governed by songwriters, who hold a 70% majority on boards of those entities. We cannot accept a concept that sets out that a board of directors of a new collective rights management entity, providing blanket licenses of mechanical rights for the entire US territory, which is governed by eight publishers versus only two songwriters who must be “self-published” at that. How can such an arbitrary governance structure ensure that the legitimate and vital interests of individual creators are well represented by vis-a-vis multi-billion publishing companies, particularly when there is no other oversight?
Respectfully, there are many other problems with the essential lack of fairness in the bill, which are too numerous to detail in a short letter. By example. one other obvious flaw is the distributing of unidentified monies on a market share basis. How can the market share, which in too many historical instances is acquired on dubious grounds in the first place, justify a blanket pay-out of un-matched royalties? Because the bill establishes a two-tiered system allowing major publishers to essentially opt-out of the collective with a direct license, the bill inexplicably distributes unidentified monies using the market
share of those publishers who will not otherwise be administered by the collective and will not likely be included in the pool of unidentified monies.
A few other questions that are of concern to songwriters: Where is the business plan for the collective? A century of practice is to be changed without even a business plan that the governed have a chance to review? And what justifies the denial of statutory damages? And how is the board of directors elected? Finally, why should companies directly licensing online music service providers be eligible for
membership on those boards? And how will cooperation with foreign CMO’s be handled, also in terms of data exchange? ·
We appreciate that the introduction of a bill is simply a first step. We trust that you will carefully review the bill andtake our views into account. We will do our best to provide you with a more detailed comment in the coming weeks. Meanwhile, should you have any questions, please don’t hesitate to get back to us.
Thank you for your kind consideration.
The letter can be found on Artists Rights Watch, here.
Following a landmark ruling, royalty rates paid to songwriters in the US from on-demand subscription streaming will rise by 44% over the next five years.
As a result of a trial that took place between March and June of 2017 with the National Music Publishers Association and the Nashville Songwriters Association (NSAI), with the likes of Google, Apple, Spotify, and Amazon lobbying for the tech community, the Copyright Royalty Board (CRB) confirmed its decision on 27th June concerning the compulsory mechanical rates which will be distributed to writers for 2018 – 2022.
The ruling includes a significant increase in the overall percentage of revenue paid to songwriters from 10.5% to 15.1% over the next five years, the largest rate increase in CRB history.
BASCA CEO, Vick Bain commented
“We are delighted that the US Copyright Royalty Board has seen fit to start addressing the great imbalance in streaming payments for songwriters and composers. The current rate of payments for mechanical royalties set at 10.5% has been too low for too long. Most writers struggle to make anywhere near a decent living on the actual money this actually means; especially once the money is split between co-writers and publishers. In our own digital royalties campaign we have long called for a greater parity between the songwriter/publisher payments and that of artist/label. We still believe a fair share is more than this; but an increase up to 15.1% of gross revenue is a firm step in that direction. The US is a particularly large market for many UK writers and this will have a direct impact on their income streams”.
In the last Copyright Update, we covered Paul McCartney’s legal action with Sony/ATV, where Paul sued the publisher for the reversion of his rights over the Lennon & McCartney catalogue under American copyright law. Sony commented that this was “unnecessary and premature”.
As we were eagerly stretching our necks out for some courtroom drama/ground-breaking judgment, six months after Paul filed his suit, they quietly settled out of court.
Although the detail of the settlement remains confidential, we can speculate on a deal no less than the one Sony made with the John Lennon estate: Paul gets the rights back on his song catalogue, in return, Sony/ATV get to administer the rights and collect a fee.
As we previously reported, US copyright law grants songwriters the statutory right to terminate the assignment agreement 35 years after they sign away their rights, or 56 years for pre-1970s agreements. Since such right only came into effect in recent years, the details and technicalities remain under debate.
With this case being settled, many questions involving non-US contracts and songwriters remain unanswered: Can they reclaim such a right under the US law? Can non-US contracts interfere with the US statutory right?
To be fair, those answers really depend on the specific wording of the contract, so we may never find out (until the next case arises). Does it then mean that this US reversion right accounts for nothing to non-US songwriters? Take a look at the settlement — it certainly gives songwriters leverage in negotiation, and that’s something, right?
ISPs have been having a hard time and should be prepared for time will only get harder. By this I mean of course, only for the ones misbehaving and Google.
In our last coverage on the Filmspeler case, we learned that the European Court of Justice (CJEU) has loosened the definition of ‘indispensable intervention’ by ease on the notion of ‘indispensable’, as long as it falls within the scope of the Information Society (InfoSoc) Directive. This means the facilitating role of a service provider could also be deemed as an act of communication to the public.
This conclusion has once again been confirmed by a recent decision delivered by the CJEU.
Earlier this year, the Dutch Supreme Court had referred the Stichting Brein v Ziggo (also known as The Pirate Bay case) to the CJEU asking for its guidance on whether an indexing website like The Pirate Bay could commit a communication to the public? And whether the InfoSoc Directive allows the issuing of an injunction to block access to such a website? To both of the questions, CJEU answered in the affirmative.
In a press release issued in mid-June, it states that “the Court holds … the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive (InfoSoc Directive)”. Although no protected contents are available on The Pirate Bay website, there exists a system where metadata of copyrighted works is indexed and categorised for users for the purpose of downloading and uploading protected content. In this sense, the Pirate Bay operators are clearly committing a communication to the public and therefore an infringement of copyright.
With CJEU increasingly embracing a broader interpretation of what constitutes a Communication to the Public, we look forward to it to be extended to more future cases.
We’re on track for another piece of good news to further boost our morale. Canadian Supreme Court just issued a ruling in late June ordering Google to delist an entire website globally on the grounds of intellectual property infringement. The reason this decision was so broadly welcomed in the music industry is that, although right holders are able to issue take-down notices against links containing infringing content, it’s often the case that new webpages pop up shortly after. This is why we’ve been campaigning so hard for a “Notice and Stay Down” system instead of “Notice and Take Down”. This court decision for Google to delist a whole website on a global basis is, without doubt, a huge step forward for right holders around the world.
With all this recent good news flooding in, it is easier now to prove that hosting links to copyrighted works uploaded by third parties could lead to copyright infringement. The next big question is, how much damage was caused from online infringement activities? How much are right-holders losing?
According to the latest decision (D.M. v APP, Microsoft, Sacem and others) from the Paris Court of Appeal, the answer is €2 per protected works. In case you are wondering the total loss, here’s a convenient formula invented by the court:
Number of Works Infringed X Total Views of Works X 0.5 X €2
And in this case, the total number added up to €13 million and a one-year prison sentence.
Combined with another decision (SFR and others v Association of cinema producers and others) French Supreme Court had made on 6 July 2017, where the court held that Internet Service Providers (ISPs) and Internet Browser Providers (IBPs) should cover the costs of blocking and filtering injunctions of infringing content, regardless of their lack of liability.
One of the reasons provided by the court is that, despite the lack of liabilities in some cases, ISPs and IBPs still make a profit by letting users access infringing sites and can afford to bear such costs, whereas right holders may not.
A clear signal is emanating from the above two cases: French court is taking a hard-line position in regards to ISP liabilities for online copyright infringement. It is in line with the new EU Copyright Proposal, which made a commendable attempt to address internet intermediaries’ liabilities and “Value Gap” in Article 13, and corresponding Recital 38.
EU Copyright Proposal
Speaking of the new EU Copyright Proposal, the CULT (Culture and Education) and ITRE (Industry, Research and Energy) Committees in the European Parliament have cast their votes on the tabled amendments in mid-July. A series of matters concerning author’s rights have reached a favourable yet compromised outcome. Articles regarding Value Gap were strengthened in both Committees, as well as the transparency obligation; the much controversial UGC exception was narrowed; an unwaivable remuneration right was introduced for authors and performers’ favour. What is worth noticing is that a rights reversion mechanism (very much resembling the US one) was adopted in the ITRE’s vote. Whether it can make its way to the final draft remains to be seen.
Mind you these are just advisory opinions to be taken into consideration for JURI (Legal Affairs) Committee’s final decision which will take place in October, unless further postponed.
British and EU music creators united in calling for an EU-wide rights reversion mechanism
Musician and Roxy Music member Phil Manzanera joined MEP Helga Trüpel (Greens) and ECSA President Alfons Karabuda in a call to close the value gap and make sure that user generated content platforms are held liable in terms of copyright. The necessity to include a rights reversion mechanism in EU law was also stressed several times. Axel Voss (EPP), Rapporteur on the directive on copyright in the digital single market was among the participants.
During the two-hour meeting with the MEPs, Council and Commission representatives, Mr. Manzanera underlined the necessity of allowing artists to terminate their contracts if their works are not promoted or the shares are obviously unfair. Mr. Manzanera highlighted that copyright must work for creators in order for musicians to further create music. “The value gap must be closed and transparency and money must flow to the creators from the exploitation of music on all digital platforms”, pointed out legendary guitarist Phil Manzanera.
“Digital capitalism must be regulated in a smart way. As a simple general principle, new digital monopolies must always acquire licenses for copyright protected material. Then we don’t need general filtering”, said MEP Helga Trüpel, who hosted the ECSA seminar.
“The meeting today gave fuel to those trying to modernize the copyright in the way it was first intended, that is safe guarding the authors enabling their future creativity. It also provided strong arguments against those seeing fair remuneration for creators as a threat to their own profit. With the help of Mr. Manzanera giving concrete examples from his own career, no one was left uncertain,” pointed out Alfons Karabuda, President of ECSA.
Open letter to the European Parliament
We represent songwriters, composers, musicians and featured artists at both EU and UK level. Together we call upon EU policy makers to complement articles 14-16 in the copyright directive with a rights reversion mechanism. The latter would allow our members to regain their rights under certain conditions.
Authors and performers are at the very heart of copyright and the creative industries. Without our members, labels and publishers would have no works to market and no music to license. Without music creators, Europe would be silenced. Still, music creators face difficulties in making a living. Rights are transferred or assigned for a very long time, in many instances for the entire duration of the copyright term. When rights are transferred or assigned, the true value of rights is not known and the remuneration received in return is not proportionate. Therefore, several copyright laws throughout the world have a rights reversion mechanism in order to protect authors and performers who have assigned rights before the true commercial value was known. Most notably the United States, Germany and Denmark to name a few. It is therefore essential that policy makers act and follow the recommendations of EU studies for a rights reversion mechanism.
The copyright review is unique and a once in a generation opportunity to establish a system of greater fairness in the contractual relationship that authors and performers have with publishers and producers. We count on you to act in the interest of European music creators.
European Composer & Songwriter Alliance (ECSA) British Academy of Songwriters, Composers and Authors (BASCA) Musicians’ Union (MU) Featured Artists’ Coalition (FAC) Music Managers Forum (MMF) Music Producers’ Guild (MPG)
 Contractual arrangements applicable to creators: law and practice of selected Member States; Study of the Legal Committee of the European Parliament. 2014
Songwriters Protest ‘Moral Rights’ Issue to Recording Industry Association of America in Strongly Worded Open Letter
‘Moral rights’ for anyone unfamiliar with the concept have been enshrined in the UK’s legislative framework since 1928. The Berne Convention for the Protection of Literary and Artistic Works outlined 3 basic rights for songwriters and composers; that of the right to be recognised as the author of a work, the right to object to being named as something you haven’t written and the right to object to derogatory treatment.
Now whilst all are important for creators the first one is paramount. Even if you assign or licence your works, as you must if you want to earn an income from your music, you should always be credited as the creator. At present there are 172 signatory countries out of about 192 countries in the world today. We do have specific issues in this new digital world where streaming and downloading platforms do not have the ability to search for songwriters and songwriters are not included in the visible metadata for users; this is something we are campaigning very vocally about and will continue to do so until these services get with the picture and update and improve their services – for both the writers and fans.
However, even though the US signed up to the Berne Convention in 1989 it chooses NOT to recognise moral rights, saying they are confusing. There really isn’t anything confusing about crediting the original creator of a song folks!! So understandably the writer organisations in the US get very excised, rightly so, about this ongoing scenario. The US Copyright Office this year conducted another study into the issue with some very strong statements from creators and submissions by writer organisations in support of the US finally recognising moral rights. However the RIAA in its wisdom decided to continue to reject this position.
Thus writers from across the US, Canada, the UK and Europe – organisations representing many tens of thousands of songwriters and composers of all genres – have come together in an unprecedented alliance to explain to the RIAA why this is wrong and damaging to the very people whose works the music industry is built on.
An Open Letter
Mr. Cary Sherman
Mr. Mitch Glazier
Dear Messrs. Sherman and Glazier,
It was with great disappointment that we read the recent RIAA comments to the Copyright Office in connection with moral rights; in particular, with regard to the right of attribution. The RIAA’s argument prioritizes the inconvenience of dealing with accurate metadata over the principle of the protection of the rights of the people upon whose work the music business is built. In our view, and the view of many in the creator community, this is not only irresponsible, it represents a betrayal of the ‘greater common purpose’ to which so many of us are committed—a purpose with which the RIAA claims to agree.
While music creators have greatly appreciated the RIAA’s leadership on, for example, the Music Community submission on Section 512, it’s crucial to note that such a leadership requires buy-in from the community one purports to lead. In this case, not only do you not have buy-in, the RIAA comments have inspired very active opposition, including that from UK and European music creators whose work is consumed widely across the USA but whose moral rights are not recognized, in part, due to your position. The Berne Convention, revised in 1928 to include moral rights, has 172 countries around the world signed up to it; it is only the US that refuses to assert them.
To make our position clear, we urge you to read the comments filed by Maria Schneider in this matter, which we believe capture the general views of the performer and songwriter community. Maria has outlined how enforceable rights of attribution (in the form of statutorily protected metadata) can be useful, if not indispensable, tools in achieving the kind of accountability from the internet that, in other submissions, the RIAA seeks to establish. [See Maria’s comments here.]
More fundamentally, RIAA’s comments are taken by many in the music creator community as a betrayal of our joint commitment to expand opportunities for creators. Unfortunately, this divergence of views gives our common adversaries an opportunity to divide our community.
We certainly are aware that the RIAA and its members have historically not embraced the idea of moral rights, and have tended to view it as a litigation risk. But the basic metadata rights we’re talking about here are already protected by Section 1202. We are not living in ordinary times, and we’re sure RIAA is well aware of the sensitivities regarding transparency and accountability. Without accurate metadata, contributors to a work risk not getting paid. That’s a moral dilemma intrinsically linked to the issue of moral rights — and on this issue the RIAA has now aligned itself with those who seek to enfeeble IP rights.
Even anti-copyright groups like Creative Commons understand the importance of attribution. If the RIAA is seen as less artist-friendly than Creative Commons, the copyleft and all who seek to undervalue our work will benefit. What’s more, this could make the job of aligning creators with the RIAA around our combined interests infinitely more difficult.
The RIAA comments raise fears about technical issues concerning implementation of the metadata. However, we believe this misses the point. No one is asking to add new requirements here. The current ID3v2 metadata tag is clearly a ‘standard technical measure’, and includes 80 separate ‘fields’ for including all sorts of metadata, including performers, lyricists, studio engineers etc. This capability is baked in to every MP3 and AAC. The RIAA should fully support and encourage all of us in the music community to harness and protect that metadata.
Instead, the RIAA frantically lays out a litany of hurdles they claim will prevent digital platforms from giving credit to the many people that contribute to a creative work. We believe there’s no doubt music platforms will come up with innovative and effective ways to give credit. Certainly there’s no need to set expectations at rock bottom as the RIAA did in their comments.
We have no interest in imposing new requirements that are unreasonable, or that require parties to include information that they themselves do not possess. But we do expect that the metadata capabilities that the industry and Section 1202 have given us will be protected, today and into the future.
Accurate metadata is essential to the healthy digital future of music creators, it is also critical to the healthy digital future of each and every Citizen Creator. The potential to report 100% accurate usage is the greatest promise cyberspace makes to Creators. Yet, in your Moral Rights submission, the RIAA seems to approach attribution and the accuracy that metadata provides as if it were a threat.
With key efforts like the Open Music Initiative, the future value of metadata to musicians and songwriters will be absolutely critical. And if, in the process of protecting those rights, we also happen to implicate certain moral rights, so be it.
The RIAA comments go in the exact opposite direction on this crucial issue, failing to take into account the potential value of legislated accreditation via metadata and providing ethical and political cover for Google and others to treat the internet as some kind of accountability-free zone. That, of course, has much broader implications than just with regard to the issue of moral rights.
We urge you and your members to think carefully about how to move forward from here in ways that truly reflect the interests of those you claim to protect. There are corporate players here, whose unfettered commercial self-interest masquerades as ideology and who capitalize upon our perceived divisions.
While the comment period may have technically closed, there is no restriction on the RIAA revising its views, endorsing the comments filed by Ms. Schneider, and affirming the following: a) the importance of metadata to musicians and creators; b) its strategic value to rights-holders in the future of payment/accountability technologies; c) the relevance and authority of Section 1202 in protecting those rights; and d) the short-term and long-term damage and chaos that is created by encouraging music distributors such as YouTube to disrespect and strip that metadata from our valuable creative works. In fact, we hope the RIAA will join us in encouraging the Copyright Office to use its authority under Section 1202(c)(8) to expressly include all of the metadata contained in a standard ID3v2 tag as falling within the definition of CMI.
We ask that the RIAA work with the creator community to address the specific issues of implementation. More important, we strongly urge the RIAA to present a united front in our common cause to protect the rights of music creators and those who present their work.
We were not surprised to read that the organisation lurking behind the ‘fake artists’ scandal on Spotify is Epidemic Sound.
Okay, so technically these artist are not so ‘fake’ – they are, of course, real people. But what we could not understand is why all of them were being playlisted i.e. promoted by Spotify.
What was the financial relationship – and were Spotify benefiting in some way?
Music Business Worldwide’s brilliant reporting last week had the music industry reeling at each revelation, but the confirmation of the business relationship between Spotify and royalty-free production music company Epidemic Sound – who share the same investor, Creandum – suggests a serious conflict of interest at the very least.
Spotify’s shareholders, including Daniel Ek, want a return on their money… and ensuring Epidemic Sound’s ‘fake’ tracks are unanimously promoted could help significantly with this objective.
There is also a distinct likelihood that music from the Epidemic Sound catalogue is not costing Spotify as much as the rest of the music industry because these rights – owned 100% by Epidemic – sit totally outside of the label/publisher/collecting society model. (Despite owning the ‘fake artist’ tracks, Epidemic is at least sharing its Spotify money with the composers behind them.)
The heavy presence of these recordings on extremely popular Spotify playlists invevitably means less consumption of music from the mainstream industry and self-releasing artists.
This drives down per-stream income for everyone, while lowering the negotiating power of the labels/publishers/collecting societies.
Companies such as Epidemic Sound base their business model on totally buying out all rights from the music creators.
The whole business model that has given generations of composers and songwriters the ability to earn a living is threatened by such companies and we have long advised our members to stay clear. Yes you can earn £50, £100, £200 a track…. but that is usually it, forever.
Anyone writing for such companies cannot also be a member of a European Performing Right Organisation, as composers assign their performing right exclusively on any works they write.
BASCA believes that the assignment of rights to PRO organisations such PRS for Music is the single most important protections for music writers. We have heard that composers can get around this by using pseudonyms – but technically they would be in breach of their PRO contract if they were doing so.
MBW discovered that Andreas Romdhane and Josef Svedlund, aka Quiz & Larossi, were behind ‘fake artist’ tracks on Spotify such as Deep Watch, Piotr Miteska and Karin Borg.
Quiz & Larossi have previous works registered on BMI and ASCAP (interestingly both US PRO’s which do not have an exclusive assignment over a writer’s performing right) and have had six British No.1 hits – but it wouldn’t be a surprise if their ‘fake artist’ music was exclusively created for Epidemic Sound.
This issue is also linked to the attribution right of music creators. It is an indelible moral right that a writer of music should always be properly credited for their musical creations.
One of our biggest gripes over the past few years has been the ridiculous inability of the world’s best data companies (i.e. the streaming companies) from being able to properly credit songwriters and composers on their platforms. You can search for the artist, the performer but not the music creator.
This all comes back to transparency. If they were credited via (International Standard Work Code) ISWC metadata everything would be clearer to everyone especially the music fans.
Transparency of attribution is good for everyone whether it’s a ‘fake’ artist, a real artist or somewhere in between.
‘Communication to the public’ is a familiar concept to anyone who knows a thing or two about copyright. However, people still seem to have trouble understanding its true meaning, given the fact that it’s legal interpretation is indeed constantly challenged before courts.
Filmspeler, a company that produces mediaplayers containing hyperlinks to third party streaming services without the authorisation of the right holders was recently sued for copyright infringement. The issue at hand is, by doing this, are they committing a communication to the public?
According to EU law, to qualify as an act of communication to the public, there are two crucial elements embedded: the act of ‘communication’ and ‘public’, within the second element, there are a further three requirements: an indeterminate number of potential recipients; profit making intention (not mandatory); and a ‘new public’.
In determining the ‘new’ nature of the public, a concept of ‘intervention’ was introduced, namely a group of people that will not be reached or not designed to be reached if without the intervention of the defendant.
In this case, that is whether the streaming sites thus the unauthorised content can be accessed by the public without the existence of the mediaplayer. The EU Court of Justice (CJEU) decided that, although the streaming sites linked in the mediaplayer can be freely accessible by themselves, the role of Filmspeler is to significantly facilitate this process and propagate it to its customers (new public). Thus an action of communication to the public was committed.
By making this decision, it appears that the CJEU has loosened the definition of ‘indispensable intervention’ by easing on the notion of ‘indispensable’, as long as it falls within the scope of Article 3(1) of the Information Society Directive.
In addition, an argument of ‘temporary copies exemption’ was briefly brought up by the defendant but immediately and firmly rebutted by the court. The brilliance of this landmark CJEU decision is that, by adopting a broader interpretation of indispensable intervention, a wider range of communicators might now be regarded as primarily responsible for unauthorised acts of communication to the public.
Interesting decisions in regards to Internet Service Providers (ISPs) liability and Safe Harbour provision rendered from several Italian courts have caught our eyes over the past few months.
According to the Tribunale di Torino (Turin Court of First Instance), Google and YouTube were liable for failing to remove unlicensed content from their service upon request of the copyright holder (Delta TV), in spite of being eligible for safe harbour protection. The defendants argued that the takedown request issued by claimant lacks the indication of specific URLs hence not valid and Safe Harbour provision has granted them the excuse to avoid general monitoring obligation. However, after careful considerations the Turin court, despite agreeing on the Safe Harbour exemption, decided the sole indication of the titles would allow the unequivocal identification of the content to be removed. It has furthermore concluded that a platform like YouTube is able to prevent the re-uploading of content previously removed.
Such ruling is not without precedents. Back in 2016, a series of similar court cases between RTI (owned by broadcasting company Mediaset) and three other internet service providers (‘Breakmedia’, ‘Kewego’, ‘Megavideo’) were raised. Courts opinions varied in respect of whether the mere indication of the title is sufficient to trigger hosting provider’s liability to remove the content, and when does a hosting provider become an ‘active host’ hence lose its safe harbour protection. What we do know is that, upon being notified for the first time the unauthorised works (no matter by title or specific URL), the ISP will then be obliged to prevent any future uploads of the same content regardless of further notice and regardless of indication of title or URL.
Now we learn that after sending the first cease and desist letter (indicating the URL of the unauthorised content, or in the case of Italian court, the mere titles), the rightholders will not be obliged to indicate again (whether with titles or URLs) for ISPs to take those files off the site and prevent any future uploads.
Also, it is worth noting that, under Italian law there is technically no system of binding precedent, which means future court decision will not be bound by former rulings. But the unanimous (or rather, similar) decisions made by a number of Italian courts more or less indicate a tendency.
Dare we dream a bit bigger that if one day CJEU confirm such interpretation of EU law by Italian court, that it would be sufficient to only indicate the title of the unauthorised content for it to be taken down for good. This would come close to our long campaigned ‘Notice and Stay Down’ system.
So, good news after all?
EU Directive for Copyright
A quick update on our previously covered EU Copyright Directive, since its entering into Parliament Committee stage in March, more than 900 amendments have been raised in four Committees: Culture and Education (CULT), Internal Market (IMCO), Industry, Research and Energy (ITRE), and Legal Affairs (JURI) committee, and it keeps going!
Due to the large amount of proposed amendments, the committee vote, which was previously scheduled in June, is now postponed to autumn, followed by implementation in spring next year. In the meantime, we are campaigning actively as always for your benefit.
Digital Economy Bill
As for the UK’s own Digital Economy Bill, following agreement by both Houses on the text of the Bill, it received Royal Assent on 27 April, and is now an Act of Parliament (law).
The bill itself hasn’t made any bold moves with regard to copyright, but a joint recognition of the need to unite across the industry was certainly, to some degree achieved along that way, which will hopefully make for smoother campaigning in the future.