OPINION: Think Copyright Law Changes In Europe Won't Affect You? Definitely Think Again

25 July 2019 | 9:48 am | Helen Smith

Ahead of her keynote at the Indie-Con Australia conference, Helen Smith - the Executive Chair of IMPALA, the Independent Music Companies Association, which represents indie labels and trade organisations - explains the impact the recent changes to copyright legislation have had on the independent music sector.

Copyright reform to boost the digital music market – what’s next? 

Few could have missed hearing about the copyright debate in Europe. Amid cries of “upload filters”, “censorship machine”, “robocopyright” and other buzzwords, the move to bring copyright up to date came under heavy fire. The battle raged for nearly three years. The final directive was published in May. It’s an impressive result for the music sector in particular. 

The legislation marks a turning point for copyright rules in Europe and beyond. All eyes are now on EU member states as they start implementing the directive into their national laws. Of course, this will bring its own share of challenges. We know the lengths some parties will go to try and hold on to the status quo.

So what was all the fuss about? It started when the EU decided it was time to clarify what the courts had already been saying about platforms. They provide access to music and other copyright material uploaded by citizens, so they need a licence and can’t rely on safe harbour legislation. 

As you can imagine, this wasn’t music to everyone’s ears. Citizens and decision-makers had to endure an unprecedented level of manipulation, disinformation and intimidation. There is only one answer to that. Greater controls and sanctions have already been called for in Europe and elsewhere. Certain players will regret showing just how far they were prepared to go to influence public opinion and democratic processes.  

But back to the new copyright rules. For the first time anywhere in the world, we have legislation clearly stating that platforms such as YouTube and Facebook are covered by copyright. At the same time, the new regime is nuanced. Non-profit platforms, online encyclopaedia, open source software platforms and online marketplaces are excluded. Wikipedia, for example, will still be there to provide you with a full analysis of Games Of Thrones' most epic battles when nostalgia strikes, as we move further away from winter (or summer, depending what hemisphere you are in...)

Small start-ups benefit from a lighter regime and in certain circumstances platforms can limit liability if they pass the right tests and comply with strict stay-down requirements. The final directive was about balancing the interests of all stakeholders.

"The new copyright regime in Europe is an opportunity to grow the digital market in a way that’s fair and sustainable. Of course this isn’t just an issue in Europe. Other countries are also looking into the same questions."

Citizens are at the core of the new rules and that’s the right approach. The directive ensures people can continue to make and share memes and gifs, listen to their favourite artists and of course watch videos online. Tutorials, movie reviews, music clips - they’ll all still be there once the directive is implemented. The directive also makes it very clear that rules on privacy and personal data will be respected, and that general monitoring is prohibited. This won’t change. So what does change? Responsibility will be transferred from citizens to the platform as licences now cover the user’s uploads. What’s also new is the redress mechanism for citizens to make sure that videos they uploaded are not taken down unreasonably.

At the centre of the debate was what became known as the “value gap”. That’s the difference between the economic value produced by a creative work for a platform when it’s uploaded, compared to the money that trickles back to its creator. The debate in Europe wasn’t just about money of course. It is equally important to have a say in how your music is used online, and the new rules do that. 

Artists are direct winners. By tackling the value gap, the directive will ensure that revenues increase. Authors and performers will also benefit from new rules to improve their relationship with their contractual partners through new reporting requirements and a contract adjustment mechanism, among other provisions. IMPALA supported this, in line with the commitments the independent sector already made nearly five years ago with the WIN digital deals declaration.

One of the directive’s leitmotifs is levelling the playing field and that extends to music services. Competition between user-generated content platforms and services like Spotify and Deezer will be fairer as a result of the new rules. And that’s good for everyone – fans, artists, labels, publishers, platforms. No more claims about safe harbour, no more “take it or leave it” deals, more accountability - that’s how to have an ecosystem that’s sustainable for all. 

The sale of UMG is also a key issue here. Google, Tencent and others have been talked about as potential suitors. That level of vertical integration would pose considerable risks for competitors and citizens. The good news is that we can’t imagine any regulator in Europe or Australia or elsewhere approving such a move. It’s the last thing we need if we want to maximise the boost for the digital market that the copyright directive promises.

The new copyright regime in Europe is an opportunity to grow the digital market in a way that’s fair and sustainable. Of course this isn’t just an issue in Europe. Other countries are also looking into the same questions.

Wherever you are, the storyboard for the independents remains the same. We have embraced the user-generated economy for 20 years and it’s time for the legal framework to catch up with the market. 

As legislators rose to the challenge in Europe, IMPALA’s sister organisations like AIR and others spread the word about how the eyes of the world were on the EU. This was an important factor that encouraged decision-makers to see it through.  

Imagine how powerful we are when we speak with one voice and learn from everyone’s experiences. This is why events like Indie-Con Australia are so important, and we look forward to continuing the debate in Adelaide, 25 & 26 Jul. This is ultimately about boosting the digital market and working together with all music services who foster unique relationships between fans and artists. Music lovers in Australia and across the globe, watch this space.

Indie-Con runs from 25 Jul at Lot Fourteen, Adelaide.