Article 13 rift grows in music biz as Copyright Directive talks resume

If there’s one thing the music business can’t seem to agree on right now, it’s the European Copyright Directive – and especially its controversial ‘Article 13’ provision.

Article 13 aims to force companies hosting user-generated content be held liable for copyright infringement on their platforms.

The European Parliament voted through a draft version of the new Directive on September 12, 2018. On that day, European Parliament Members (MEPs) voted 438 to 226 (with 39 abstentions) to proceed with the proposed copyright reform.

Since then, a war of words has been waged between the likes of MEPs, YouTube, Universal Music Group Owner Vivendi, the global recorded music industry and publishers – with songwriters and artist groups now weighing in.

The music industry’s differing views on how negotiators should proceed with the Directive follows last month’s communication breakdown between European member states after 11 countries including Germany, Belgium and the Netherlands voted against the then-latest draft of the bill, citing concerns over Article’s 11 (the ‘link tax’ provision) and Article 13.

The Directive’s scheduled ‘Trilogue’ approval meeting on Monday January 21 was cancelled as a result.

Last week saw those discussions resume after it was revealed that France and Germany, who previously did not agree on the wording of the Directive’s text, have in fact now reached a deal, the details of which were leaked by Poltico.

The final phase of talks begin this week, with the ‘Trilogue’ officially starting tonight (February 11) after European Member states voted last week to use the France – Germany deal as an agreed position from which to negotiate.

The France – Germany deal includes a number of ‘possible compromises’ on the wording of Article 13 and the ‘Definition of an online content sharing service provider’ under Article 2(5), which you can read in full here.

A new suggested paragraph, 4aa, has been added to Article 13 which, as explained in this blog post by the anti-Article 13 and Pirate Party MEP Julia Reda, states that Article 13 will apply to all user-generated content services, apart from those that meet all of the following three criteria: (i) They need to be less than three years old, with (ii) less than €10m annual turnover and (iii) fewer than 5m unique users a month.

Reda argues that Article 13 in its latest form actually “got worse, not better”, because “countless apps and sites that do not meet all these criteria would need to install upload filters, burdening their users and operators”.


Back to the music business – last week on Thursday evening (February 7),  in a shock turn of events an open letter was issued to the media, signed by labels and publishers calling on European negotiators to cancel the Directive.

Co-signed by the IFPI, ICMP, IMPALA and several other rightsholder organizations from the audio-visual, broadcasting and sports industries including the Premier League, the collective’s message was clear: “We would rather have no Directive at all than a bad Directive.”

The latest draft of the Directive, argue these trade bodies, risks “leaving European producers, distributors and creators worse off”.

“We are raising the alarm about the text on the member states’ table. Urgent action is needed to move forward with a text that achieves its original purpose.”

Helen SMith, IMPALA

The next day (Friday, February 8) songwriters, artists, producers and managers in the UK issued a response in disagreement and called on negotiators to proceed with the Directive negotiations.

Signed by The UK Council of Music Makers (CMM) – comprising BASCA, FAC, MMF, MPG and the MU, the letter (which you can read in full below) suggests that “labels and publishers have shown an unsettling disrespect for the talent that they have the privilege of representing, raising serious questions about their suitability to be the custodians of copyright”.

Additionally, the letter suggests that Article 13 is not the sole reason why labels and publishers would like the Directive to be shelved, stating that they “want to avoid the improvements to transparency and fairness that the Articles 14-16 bring”.

Articles 14-16 aim to improve authors rights around exploitation of, and renumeration for, their works.

“The text still needs some improvement but we trust EU decision makers will achieve a satisfactory result this week and adopt the directive.”

Gesac spokesperson

“We are saddened that the short-term commercial interests of these companies can be put before modernisation of copyright legislation that will benefit the whole industry,” said the CMM.

Also on Friday, independent label body IMPALA issued its own statement on Twitter (see below), in which Executive Chair Helen Smith said: “We are raising the alarm about the text on the member states’ table. Urgent action is needed to move forward with a text that achieves its original purpose.”

Today (February 11) with a few hours to go until the Trilogue starts, another open letter (also in full below) has been issued by GESAC (European Grouping of Societies of Authors and Composers) signed by 28 creator and rightsholder organisations including CISAC (International Confederation of Societies of Authors and Composers), urging negotiators “to improve and to adopt the Copyright Directive in the Digital Single Market at this week’s Trilogue meeting”.

In spite of the divisions that have emerged in the music business over the last few days, a GESAC spokesperson has told MBW that they’re optimistic that a “satisfactory result” can be achieved this week.

“The directive is long sought to put an end to the current unfairness in digital market, where free riding tech giants develop their business at the expense of creators and cultural sector,” they said.

“The text still needs some improvement but we trust EU decision makers will achieve a satisfactory result this week and adopt the directive.”



You can read the most recent open letter signed by GESAC and CISAC below:

Time to improve and adopt the Copyright Directive

Distinguished trilogue negotiators, We, the undersigned organisations representing authors, performers, and others working in all artistic fields, news agencies, book, press and independent music publishers urge you to work constructively to improve and to adopt the Copyright Directive in the Digital Single Market at this week’s trilogue meetings.

The current mandate from COREPER on Friday is a crucial step towards the Directive’s adoption, even though further improvements are needed to make the text truly meaningful for the cultural and creative sectors. This Directive has been long sought to create a necessary level playing field for all creative sectors in the European Digital Single Market, whilst giving consumers better access to more content in a secure environment.

“Without the Directive, creators will be left with no guarantee of obtaining a fair remuneration online and our sectors will be subject to great legal uncertainty regarding future practices.”

Without the Directive, creators will be left with no guarantee of obtaining a fair remuneration online and our sectors will be subject to great legal uncertainty regarding future practices. Failing to adopt the Directive would mean missing a historic opportunity, be extremely detrimental to European culture, and also represent a fundamental failure for European policymaking.

The time has come to make the final effort to improve the text and reach an agreement at the trilogue. It is time to show that the European Union cares for its citizens, creators, values and cultural diversity and can stand up to protect them.

We trust that your thoughtful political judgment and sense of fairness will prevail to bring this legislative process to a successful conclusion.

SIGNATORIES

AEPO-ARTIS – Association of European Performers’ Organisations
CISAC – International Confederation of Societies of Authors and Composers
CIAGP – International Council of Creators of Graphic, Plastic and Photographic Arts
CEPIC – Centre of the Picture Industry
CIAM – International Council of Music Authors
EANA – European Alliance of News Agencies
ECSA – European Composer and Songwriter Alliance
EFJ – European Federation of Journalists
EPC – European Publishers Council
EVA – European Visual Artists
EMMA – European Magazine Media Association
ENPA – European Newspaper Publishers Association
EWC – European Writers Council
FERA – Federation of European Film Directors
FIA – International Federation of Actors
FIM – International Federation of Musicians
FSE – Federation of Screenwriters in Europe
FEP – Federation of European Publishers
GESAC – European Grouping of Societies of Authors and Composers
IAO – International Artist Organisation of Music
IFRRO – International Federation of Reproduction Rights Organisations
IMAGO – European Federation of Cinematographers
IMPF – Independent Music Publishers International Forum
NMC – News Media Coalition
NME – News Media Europe
SAA – Society of Audiovisual Authors
UNI-MEI – Global Union in the Media, Entertainment and Arts
WDW – Writers and Directors Worldwide 


You Can read the UK Council of Music Makers open letter below:

We are the voice of UK songwriters, music producers, performing artists, musicians and music managers. We speak on behalf of thousands of makers of the music this ‘industry’ represents. We speak with one voice with all the creator-led organisations across Europe and around the world in supporting the Copyright Directive.

While the current text could be improved and still includes some problematic provisions, it is a compromise. At every step of this process the creative community has sought compromise and been open to dialogue.

Most creators and artists in the UK struggle to make a living from music. Without this Directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of some tech giants that refuse any responsibility.

We make the music that people want to listen to and buy. It is our intellectual property and our rights and we need the Copyright Directive to put in place reasonable and fair safeguards.

It is hugely disappointing to see the music labels and publishers disregard the interests of their creators and artists in this way. They are trying to overturn years of collaborative work at the 11th hour by killing the Copyright Directive. Like YouTube, they have lobbied negotiators hard without consulting or informing the creative community. Heavy-handed tactics of heavyweight businesses.

“The labels and publishers have shown an unsettling disrespect for the talent that they have the privilege of representing, raising serious questions about their suitability to be the custodians of copyright.”

It is sad to see labels and publishers turn on their creators and artists in this way. They are trying to halt the Directive not only because of the latest wording of Article 13 but because they want to avoid the improvements to transparency and fairness that the Articles 14-16 bring. We are saddened that the short-term commercial interests of these companies can be put before modernisation of copyright legislation that will benefit the whole industry.

The labels and publishers have shown an unsettling disrespect for the talent that they have the privilege of representing, raising serious questions about their suitability to be the custodians of copyright. We have worked in tandem with UK Music and colleagues across the industry to find compromise and solutions that enable legislation to pass. This Directive will affect future generations of creators and performers whose interests need protecting beyond the interests of current models.

We have been engaged and willing to negotiate, and we remain engaged and progressing in good faith, with both tech and industry. We have not given up on this important legislation.

We call on UK Government and UK Music to support the adoption of the Copyright Directive.

Council of Music Makers (UK)

British Academy of Songwriters, Composers and Authors (BASCA)

Featured Artists Coalition (FAC)

Music Managers Forum (MMF)

Music Producers Guild (MPG)

Musicians’ Union (MU)Music Business Worldwide

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