Music and copyright - that elusive search for perfect harmony


Never has music been more accessible. The days of queuing up in a record shop to obtain that pre-ordered prized vinyl copy of your favourite band’s new album would seem alien to today’s digital generation (not least as many record shops have disappeared). Digital Natives have YouTube, they have Spotify, they have the BBC iPlayer, they have iPods, they have Amazon – and they have The Pirate Bay and many many other tools on the internet to find both legal and illegal content. Even Digital Immigrants are migrating to digital music and there are few left who are not touched by the digital age in some way. 

The EU is looking for reform its copyright laws

Along with the U.S., Japan, Canada and Australia (amongst many others), the European Union is currently looking to reform its copyright laws and in January 2014 launched a public consultation. Set in the context of an introduction that said “Over the last two decades, digital technology and the Internet have reshaped the ways in which content is created, distributed, and accessed. New opportunities have materialised for  those that create and produce content (e.g. a film, a novel, a song), for new and existing  distribution platforms, for institutions such as libraries, for activities such as research and for  citizens who now expect to be able to access content – for information, education or  entertainment purposes – regardless of geographical borders”.  

The Review of the EU Copyright Rules invites stakeholders to share their views on areas identified in the Communication on Content in the Digital Single Market including territoriality in the Single Market, harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform. Internal Market and Services Commissioner Michel Barnier said at the time his vision of copyright was of a modern and effective tool that supported creation and innovation, enables access to quality content, including across borders, encourages investment and strengthens cultural diversity saying “Our EU copyright policy must keep up with the times”.

"The tide is turning"

The European Parliament clearly intends to contribute to the debate and likely reforms – and interestingly at the beginning of 2015 appointedPirate Party MEP Julia Reda as rapptorteur to produce a report on the implementation on the InfoSoc Directive.  Against the general feeling that it is the content industries that are driving copyright reform to protect their own interests, TorrentFreak said "Strangely unreported by mainstream media, there is a major revision of the copyright monopoly underway in the European Union. And the person in charge, Julia Reda, is a Pirate Party representative. The tide is turning" and Science 2.0 said "Imagine you were asked to write a law that encouraged creativity.  What would it look like? Whatever your answer, it’s pretty clear that it wouldn’t look like copyright”. 

Most recently, Reda made clear her view that that geo-blocking within the Union is a threat to European culture saying "One cross-border issue users feel strongly about is 'geo-blocking'. Most of us are familiar with the error message “This video/content/service is not available in your country.” There’s no digital single market when travellers can't use the services they pay for once they cross a border, linguistic minorities are denied access to cultural works in their native language, innovative services are only available in the big member states because of varying regional hurdles – or UK MEPs are blocked from following the cricket in Brussels."  

20 leading filmmakers publicly disagreed, saying Reda’s proposals could seriously damage film production and that the EU should focus on battling piracy: CISAC published an open letter criticising the Report’s failure to address market realities for creators, underlining the need for a more balanced system that would take into account the rights of creators and provide fair remuneration for the use of their works. 

The entire European Parliament will vote on Reda’s report on 20 May 2015: The European Commission’s recently leaked Digital Single Market (DSM) Strategy stressed the need “to create a Digital Single Market where everything that is also possible in the physical Single Market is possible in the digital world” announcing legislative proposals to address: (i) "unjustified geo-blocking through a combination of actions" (ii) copyright reform - notably by allowing text and data mining and ameliorating civil and (iii) the role of intermediaries – in particular how widely the safe harbour immunity for ISPs set out in the e-Commerce Directive should extend.

London Manifesto

Equally recently, and in a bid for what were argued to be fair copyright laws that might benefit citizens and researchers across Europe, organisations including the Wellcome Trust, the National Library of Scotland, the National Library of Wales, the Open Rights Group and indeed the Chartered Institute of Library & Information Professionals called for reforms. Their London Manifesto calls for fair copyright for libraries and archives across Europe. The Manifesto outlines suggested reforms that the supporters say would better support research, innovation and growth and might help create a digital single market. 

It focuses on the important role of libraries and archives. The reforms would bolster the rights of disabled people by supporting equal access to knowledge. They would mean that libraries can acquire and lend commercially available digital materials and, with archives, can continue to underpin knowledgeable societies in the digital age. The reforms would allow libraries and archives to better support research through modern text and data mining techniques. They say this would also create a more manageable system of harmonised copyright laws across EU member states. 

A number of content owners and creators including commercial book publishers, film and TV companies and music producers were critical of some of the suggested reforms, particularly where they might impact on their future revenue streams. And yes, if demands by libraries and researchers impact on the commercial returns of, say, journal publishers or recorded music companies, why wouldn’t they object – and object strongly, not least because their investment would neither be rewarded or replaced, of long terms detriment to us all.

We still live in a world of grey areas and 'Blurred Lines'

Anyone except a knowledgeable intellectual property lawyer might be hard pressed to understand recent court rulings on whether ‘appropriation art’ is legal or illegal, what constitutes a parody, and when it comes to song writing, finding the difference between the inspiration and plagiarism. Ask Sam Smith and Pharrell Williams. We still live in a world of grey areas and ‘Blurred Lines’. 

Whilst still criticised for their business models and ‘abuse’ of copyright, YouTube and Google thrive; but Aereo has been ruled illegal; Grooveshark withers under sustained legal challenges but somehow the Pirate Bay survives.  Netfilx, Hula, Adrise and Now TV are re-writing the rulebook for film and TV production and distribution, just as CNN, HBO and MTV did in their early years; your Gran has a Kindle; The BBC is a digital leader. Kids have mobiles. Sky sells you internet access; and BT hosts a major sports channel and bid nearly a billion pounds for the rights to screen live Premiership football for three years. It’s another brave new world.

The music industry was the first to be savaged by digital piracy

The music industry was the first to be savaged by digital piracy and was the first to be forced to adapt – or die. The recorded music sector in particular has worked hard to fight back and stabilise its business models, which at one point looked like they were about to fail completely.  It made numerous mistakes and some sensible advice (with the benefit of hindsight) would be to prevent attorneys from getting anywhere near policy decisions, adopt a policy of treating your customers with common sense as well as having an open mind to adapting to change:  embrace the new if you can monetise it – and don’t fight back with legal threats and writs! 

The fact it took a computer company, Apple, to create the most effective distribution system for digital music is perhaps telling – but so is the fact that after just 10 years, iTunes is in decline. But Apple are laughing – in the same period they went from being a niche computer company to the World’s largest corporation – now that’s how to monetise music!

The music industry still has some battles ahead

On April 14th the recorded music sector's global trade body (the IFPI) published its Digital Music Report 2015, detailing key trends in the recorded sector over the last year - with the headline news that digital music revenues are now on a par with physical globally, that global industry revenues are marginally down 0.4 per cent to US$14.97 billion in 2014 and that subscription services at the heart of the recorded music sector - with digital revenues now US$6.9 billion, representing 46% of all global music sales. But clearly piracy remains a concern. As does developing new markets – the IFPI said that the industry sees substantial further growth potential in the subscription sector, with new services advancing in 2015 led by YouTube’s Music Key, Jay Z’s TIDAL and Apple’s expected subscription service.

The music industry, in particular the recorded music sector, still has some battles ahead, not least with how ‘safe harbour’ rules should be applied. And there is a whole generation of music creators growing up who use sampling and samples as a tool – they don’t think they are ‘stealing’ music – they think they are creating new music. Conversely many of those sampled feel hard done by the fact that there is no system through which they can be effectively paid for their own efforts without going to court.  

Many heritage acts are furious with their record labels for allocating often derisory royalty rates from old contracts which were designed for physical sales of vinyl, cassettes, CDs and DVDs which are now applied to digital sales which have none of the accompanying costs of manufacture and distribution. It’s just a click! Music publishers and songwriters are becoming more vocal in their view that the ‘digital pie’ is not being shared equally – claiming that the digital services themselves, and the record labels are taking an unfair share, squeezing down the share of songwriters, music publishers and recording artists.

The reform of music licensing

As technology continues to change, one key issue for the music sector will be the reform of music licensing and there is little argument that this needs reforming.  The U.S. Register of Copyrights, Maria A. Pallante, said: “Few would dispute that music is culturally essential and economically important to the world we live in, but the reality is that both music creators and the innovators who support them are increasingly doing business in legal quicksand. As this report makes clear, this state of affairs neither furthers the copyright law nor befits a nation as creative as the United States.” 

Commenting on the same issue, the Future of Music Coalition opined:  “The Copyright Office had its work cut out for it in hearing from the many stakeholders in the music licensing space. We’re talking major labels, indie labels, recording artists, composers, tech companies, artist advocates, academics and more. Music copyright—and music licensing—is often counter-intuitive. The reason is because many of the laws that govern the space were devised in an earlier era. Even those that were passed in the digital age are more than 15 years old.” Yes, 15 years past  is now officially a VERY LONG TIME AGO!

Meanwhile legislators, even those who supported content owners suggested measures to combat online piracy, are regularly calling for a simplified licensing framework in the music business, and a central database of copyright ownership information is essential to achieving that ambition. One of the failures in the sector has been the stalling of the Global Repertoire Database for songs and music – and clearly for simple and effective licensing the music sector needs detailed data of both ownership and authorship of songs and sound recordings – and in a world of samples and sampling – that database needs to be far more comprehensive that that currently offered by the collection societies. When the project stalled in July 2014 PRS For Music said it remained “committed to the principles of a single point of works registration” and hoped lessons learned from the GRD could be employed in future song ownership data ventures” although the failure was apparently due to a falling out between the collection societies involved, not least as new alliances had themselves moved into multi territory licensing.

And yet and somewhat perversely, as new digital music services launch, both the major record labels and now the major music publishers are now seeking to reclaim digital rights from collection societies so they can directly deal with these services, not only to obtain the best royalty rates possible but also to be able to ever their catalogues to gain equity stakes and profit shares for their own benefit. 

Eductation, ethics and revenue

I write this as it transpired four episodes of the brand new series of the global phenomena that is HBO’s ‘Game of Thrones’ had been leaked and pirated with HBO blaming Periscope, the app that lets users broadcast everything around them which is owned by Twitter, for facilitating “mass copyright infringement” Millions of dollars lost. As the Australian courts ordered Australian internet service providers to reveal the identities of 4,726 internet users who had illegally downloaded ‘Dallas Buyers Club’ there was a massive rise in Google searches for the phrase ‘virtual private networks’ – VPN – that mask users’ identities. 

Launching its 'Music Rules’ curriculum to educate young Americans about legal and ethical exploration of copyright and intellectual property in the digital age, the Recording Industry Association of America said that educators had the perfect opportunity to spotlight music theft and the intersection of technology, copyright law and civic responsibility. But if I were a heritage artist getting 1p from each 99p paid for download on iTunes, or a miniscule payment per stream on Spotify, I might well complain about the ‘ethics’ of the recorded music sector.  If I were a songwriter earning even less per stream or sale, I am sure I would be complaining, and not about piracy. If I ran a record label I might wonder; why I am not sharing in the exponential growth of the live music sector; how I can get properly paid from ‘free’ online streaming services like YouTube who hide behind safe harbour provisions; and why the UK’s new private copying exception doesn’t provide a revenue stream. If I were a member of the public I might ask why it took so long to get that exception passed into law! If I was setting up a new online music service I would be concerned about the complexities of licensing legal content. 

We should all be worried and excited about where piracy might go next and which new music services might be just around the service. The music industry has survived so far, but has missed many opportunities, and will have an even shorter time frame to deal with the next set of changes – whether technological, cultural, legal or business driven. The music industry needs to get its own ‘house in order’ – so batten down the hatches, it’s going to be a rollercoaster ride!

About World Intellectual Property Day, April 26 2015

The theme of this year's World Intellectual Property Day, 26 April 2015, is music and WIPO are using the day as a way to encourage discussion and debate around our relationship with music, how we listen to it and how people can make a living from creating music.


Image credit: Denis O'Regan.

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