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Copyright & Regulation

YouTube outlines its approach to copyright as EU member states keep transposing the Copyright Directive into national law

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YouTube has been adjusting its approach to copyright to take into account the implementation of the European Copyright Directive into national law by EU members states.

The changes were made necessary by the incorporation into European and member states law of Article 15, which introduced a neighbouring right for news publishers, and Article 17, which introduced a set of new rules for certain content-sharing services like YouTube, in particular the need to make “best efforts” to identify rights holders and ensure that unlicensed content is taken down, or licensed.

Marco Pancini, Director of Public Policy for YouTube EMEA, explained in a blogpost that the Google-owned video streaming platform was developing a compliance plan. “YouTube supports updating copyright rules for the digital age and has been working closely with policymakers across Europe on Article 17’s implementation and on a means of compliance that best meets the needs of our partners’ growing businesses, while also continuing to contribute to the economy,” wrote Pancini.

Develop compliance plans

He added: “As we develop our compliance plans, it’s important to us that the fundamental rights of rights holders, including media companies, creators, artists and users, are protected. At the same time, supporting the creative industries such as the YouTube creators who are building next generation media companies that impact the economy’s overall success, is a priority to us.”

YouTube’s Marco Pancini

As an example of the contributions YouTube makes to local economies, Pancini wrote that YouTube’s creative ecosystem contributed approximately €775 million to Germany’s GDP in 2019, and supported the equivalent of 25,000 full time equivalent jobs, according to Oxford Economics.

Central to YouTube’s copyright policy is the implementation of copyright management tool Content ID for better creative control. “YouTube has long believed that effective rights holder management is key to a healthy business and flourishing creativity,” wrote Pancini. “This is why we created a set of copyright management tools, for example, investing over 100 million US dollars to develop our Content ID technology which allows rights holders to manage their content across the platform in a highly nuanced and sophisticated way.”

Help creators control and manage their content

Pancini said that YouTube has worked with rights holders such as record companies, labels, music collecting societies and film and television creators and producers for many years, and by using Content ID, rights holders can “control and manage their content on YouTube, while also gaining a new source of income.”

Pancini claimed in the post that more than 95% of the time when rights holders claim content through Content ID, “they choose to allow the content to remain on the platform and earn money generated by ads and subscriptions, rather than block the content.”

This, he added, has resulted in “an entirely new revenue stream.” He disclosed that over the last three years alone, YouTube paid $30bn to media companies, creators and artists, and in the last twelve months, YouTube paid over $4bn dollars to the music industry, 30% of which came from user-generated content monetised through Content ID.

Provide more tools for rights holders

YouTube is also expanding access to more copyright tools for more creators. For example, Pancini noted that the company recently expanded its Copyright Match Tool so that “any rights holder who successfully submits a copyright removal — whether they host their content on our platform or not — can have access to our matching technology and are able to manage their copyrighted material in a powerful, efficient and user-friendly way.”

He added: “We also allow rights holders who submit copyright takedown notices to request that YouTube prevent copies of the same content from being uploaded in the future. Additionally, we will be hosting a webform in our help center to enable interested parties to reach out to us for licensing discussions.”

Pancini concluded by stating that YouTube will “continue to find new ways to help creators and rights holders manage their rights on YouTube while growing the amounts we pay to the creative industries.” He also said the company will “continue to work with policymakers, rights owners, partners and creators across the region to ensure an effective implementation of the new copyright laws.”

The right to remove content from YouTube

​For Rasty Turek, Founder and CEO of Los Angeles-based Pex​, a company helping rights holders identify unlicensed content online, the new copyright framework in Europe and YouTube’s compliance with it, will “have multiple impacts.”

Pex’s Rasty Turek

Turek told Creative Industries News that the first impact is that “any rights holder has technically a way to remove their content from YouTube.” For Turek, the lack of such tools was the reason why songwriter and performer Maria Schneider criticised YouTube’s policy with regards to Content ID, which she thought was restricted to too few rights holders, and what started her lawsuit against the company for harbouring infringing content.

“With this, YouTube is complying with the Article 17 of EUCD, which now sends signal to other platforms that they are running against the time if they don’t have solution in place,” said Turek. “What we don’t know is if YouTube’s offering will constitute as a best effort as required by the law. But for that, we will need to leave it to the courts.”

Obligation to do best efforts in licensing

Turek said it will be interesting to watch for this particular issue, “because YouTube has an obligation to do best effort in licensing – not identification – and has an obligation to prevent any re-uploads of the works blocked by the rights holders.”

So, asked Turek, what happens if YouTube’s Content ID is unable to identify chunks of content? Do they do best effort in licensing? And what constitutes a re-upload? “These questions will be most likely answered with lawsuits,” said Turek.

Emmanuel is a Washington, DC-based freelance journalist, blogger and media consultant, specialising in the entertainment business and cultural trends. He was the US editor for British music industry trade publication Music Week. Previously, he was the editor of Impact, a magazine for the music publishing community (2007-2009), the global editor of US trade publication Billboard (2003-2006), and the editor in chief of Billboard’s sister publication Music & Media (1997-2003).

Copyright & Regulation

MEP Axel Voss: ‘The campaign against the Copyright Directive and Article 17 was too extreme and not necessary’

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The European Union’s Copyright in the Digital Single Market Directive was a delicate experiment in balancing the expectations of too many stakeholders with opposing views, in a Parliament where copyright issues do not reach a consensus. And it could have failed.

Such was the description by one of the legislation’s lead proponents, Axel Voss, Member of the European Parliament and rapporteur of the Directive, of the three-year process that led to the adoption of the Directive by the Parliament in April 2019.

Voss, who spoke at a virtual event part of Canadian Music Week‘s Virtual Voices series, was interviewed by John Phelan, Director General of the International Confederation of Music Publishers. He said the initial goal of the legislation was to correct an imbalance that was created by letting digital platforms unregulated for 20 years.

Time to correct imbalances

“We have faced a situation where we let the platforms grow for about 20 years and develop in a way they added content and the young generation uploaded a lot of copyright-protected content,” said Voss. For him, it was the content that made the platforms attractive, and allowed platforms to generate revenue through advertising.

“The creative sector does not get anything from this use of their works from others, so we thought this imbalance cannot stay for the future, it is too far developed and now is time to correct imbalances,” explained Voss, who added that this imbalance needed to be corrected “otherwise the future would have not been too bright” for creators.

“There was no voluntary correction of the situation by the platforms and that is why the legislator was asked to do something,” said Voss. Phelan concurred, saying that the imbalance was “enormous” with on one side 1.2 billion active users on YouTube and 156m paying subscribers to streaming services.

The ‘crucial’ Article 17

This is why, added Phelan, the creative sector advocated for Article 17, which introduced a new framework for the liability of platforms with unlicensed content and fix the “value gap.” “Article 17 was crucial,” said Phelan. “The legislation clarified that if you let people upload you need to seek a license. It helps us to operate and remunerate our authors and composers.”

Voss said that the foundation of the Directive was to first correct this imbalance between platforms and rights holders, and Article 17 (formerly 13) was the answer to that. “We had to do something for the creative industry: nobody should use copyright-protected works of others without having in mind fair remuneration,” said Voss. 

That was the foundation of Article 17, but the road to get there was “to find a compromise” which would balance the interests of three groups of stakeholders with different interests: the creators and the creative sector, the platforms, and the users. “You cannot give 100% to creators, 100% to platforms and 100% to users,” said Voss, who advocated for “a pragmatic approach because the result is to solve a situation through a complicated balance.”

Ensuring proper remuneration

If the first step was “to strengthen the rights of creators” because of the imbalance, then the second step was to balance “the legitimate interest of platforms with creators and performers and the legitimate interests of the user.”

He continued: “We said we have to have a kind of liability of online content sharing providers. They can’t rely any more on safe harbours created 20 years ago. Then, ensuring licensing and proper remuneration and finding a pragmatic approach. Each side is not satisfied with everything we are suggesting, but in the end you have to get something in place.”

Voss explained that cultural diversity was also a factor in the thinking of legislators. “Diversity is the reason to create a better balance between p[latforms and the creative sector,” said Voss. “Again, in this whole development, we had to balance the interest of the users. This has been very complex.”

Extreme lobbying against the Directive

Phelan also asked Voss about the “heavily coordinated anti-copyright campaign” that was rolled out by the opponents to the Directive. “No one has ever experienced this extreme lobbying or the campaign against Article 17,” reacted Voss.

“It was said the Internet will be destroyed and freedom of expression would no longer be in place. As rapporteur I was described as a simpleton, who does not know what I am doing, and this has been very extreme. Very experienced politicians have said they have never seen such a campaign. We were trying to balance fundamental rights. This was too extreme and not necessary.”

He blamed platforms who used public opinion “against the representatives of the public.” In the end, he said, he was “happy that they have not succeeded and that we have something in place that everybody can live with.”

Hard to find a majority

However, the campaign left scars and could have derailed the adoption of the legislation. “Politicians also act on public opinion,” said Voss, “that is why it was so hard to find a majority in Parliament because a lot [of MEPs] were not realising what was going on and that’s why we had a hard time.” 

The extreme aspect of the campaign turned some legislators against the text, said Voss: “Lots of colleagues want to be reelected and when confronted with this situation, you can fear you won’t be if you are not aligned with public opinion.”

More generally, Voss believes that “lobbying is necessary but if it is in such a way and format that we have faced, in my view it is going too far. We have to be careful and not let companies get that powerful. This is a danger for democratic structures.”

Protecting fundamental rights

He continued: “To a certain extent legislating is a competition of ideas but you also have to have boundaries in place and this was totally overstepped. You have to stand firm. They pressed the right buttons for the users and unfortunately they believed it and all these things – censorship, end of net neutrality, etc – but  this has nothing to do with Article 17.”

Voss said the discourse that the Directive was against fundamental freedoms was also a stretch too far, and he was satisfied that the European Court of Justice found that the Directive did not infringe on fundamental rights.

He said the Directive was also a reflection of the political balance within the Parliament. “You do have to understand the structure of Parliament: we have eight different groups of parties, split all over and we needed to find a majority. This is is the problem we faced so we needed to find ideas about how to find a majority.”

Transposing the Directive

The Directive is now in the process of being transposed into national legislation. At this stage, as John Phelan stated, only six countries have done it so far, and the others missed the June 2021 deadline. 

“The Commision has to ask if they have transposed it, and if not explain why,” says Voss, “and if it is transposed in a way that is not compatible with the Directive, the commission should act too.”

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Copyright & Regulation

US Copyright Office and USPTO to host a conference on copyright law and AI

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The US Copyright Office and the US Patent and Trademark Office have joined forces to present at the James Madison Memorial Building in Washington, DC on October 26, 2021 a conference entitled “Copyright Law and Machine Learning for AI: Where Are We and Where Are We Going?”

Panels will explore machine learning in practice, how existing copyright  laws apply to the training of artificial intelligence, and what the future may hold in this fast-moving policy space.

Speakers include: Greg Brockman (CTO, OpenAI), Obvious (Obvious Art Collective), Dr. Aude Oliva (MIT Director, MIT-IBM Watson AI Lab), Daniel Gervais (Milton R. Underwood Chair in Law, Vanderbilt University), Tim Hwang (Research Fellow, Center for Security and Emerging Technology), Catherine Zaller Rowland (Vice-President and General Counsel, Copyright Clearance Center), Ben Sobel (Law Clerk, United States Court of Appeals for the First Circuit), Dave Green (Assistant General Counsel, Microsoft), Peter S. Menell (Koret Professor of Law, UC Berkeley School of Law), Chris Mohr (Senior Vice-President and General Counsel, Software and Information Industry Association) and Mary Rasenberger (CEO, Authors Guild).

Participants can register here for the free event. The conference will also be available on zoom.

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Copyright & Regulation

British competition authority launches an in-depth probe into the acquisition of AWAL by Sony Music Entertainment

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creative image of dollar sign

The UK’s Competition & Markets Authority (CMA) has decided on September 16 to launch an in-depth investigation into the acquisition of AWAL and Kobalt Neighbouring Rights by Sony Music Entertainment.

In a statement, CMA said: “The CMA has referred the completed acquisition by Sony Music Entertainment of AWAL and Kobalt Neighbouring rights businesses from Kobalt Music Group Limited for an in-depth investigation, on the basis that, on the information currently available to it, it is or may be the case that this merger has resulted or may be expected to result in a substantial lessening of competition within a market or markets in the United Kingdom.”

The decision follows the publication a week ago of the CMA’s analysis of the proposed transaction, concluding that if the acquisition of Kobalt Neighbouring Rights was not an issue, that of AWAL, a service and distribution company for labels, did raise competition concerns.

Lack of undertakings

In particular, the CMA found that AWAL could have been a competition to SME-owned service company for independent labels and artists The Orchard.

The merger inquiry was launched on July 1, 2021. On September 7, the CMA said that the merger would be referred for a phase 2 investigation “unless the parties offer acceptable undertakings to address these competition concerns.” The fact that the CMA moved into phase 2 suggests that SME did not agree to or volunteer for undertakings.

Last week, SME robustly defended the transaction, stating that it was “unambiguously pro-competitive.” It added: “Every other regulatory body that has reviewed this transaction has agreed with our view and approved it quickly. We will continue to work closely with the CMA to resolve any questions they might have.”

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