Canadian Musician - May/June 2017 - Page 41

ness model, however, ap- pears to be a losing battle for the music industry. Un- like the audio streaming services, whose entire Entertainment lawyer Safwan Javed of business is Taylor Oballa Murray Leyland music distri- bution, YouTube is not wholly reliant on the labels’ and publishers’ product. “Imagine the labels’ move with YouTube is to say, ‘We need to renegotiate our agreement,’ and YouTube says ‘no.’ So what’s the labels’ next move? If they want to go to a contentious and aggressive posture and say, ‘OK, we’re going to pull our catalog,’ well that’s all fine and the videos they’re making are not uploading, but other peo- ple are probably going to still be uploading stuff,” says Javed. “The general public will still be able to upload stuff, and sure you can try to police that, but policing that is exceedingly difficult and you’re spending a lot of resources on something that is essentially like a whack-a-mole that doesn’t stop.” And that brings up the second major point of con- tention: the safe harbour provisions. The term “safe harbour” refers to copyright law provisions that protect user-generated content services from copyright infringement lawsuits. While it applies to other services beyond YouTube, the music industry’s lobbying efforts against safe harbours have almost exclusively focused on the world’s largest streaming service. In essence, what safe harbour means is that music rights holders cannot sue YouTube for copyright infringement when its users upload their music without permis- sion. YouTube’s only responsibility is to operate some kind of notice-and-takedown system, which it does through its proprietary Content ID system. Safe harbour also puts the onus on the rights hold- er to identify infringement rather than the service. In that regard, YouTube is actually doing more than it’s required to because Content ID proactively informs rights holders of infringing uses of their product. If a video gets taken down or monetized via Content ID, however, YouTube is not liable if it gets re-uploaded and the notice-and-takedown cycle begins again. Most discussions and lobbying efforts to end safe harbours have focused on the U.S. Digital Millennium Copyright Act (DMCA), which created the precedent, and the e-commerce directive in the European Union. Canada, though, actually has an even more lenient safe harbour found in the Copyright Modernization Act of 2012. Here, instead of notice-and-takedown, Canada has a notice-and-notice regime. So when a rights holder sends a notice to a service provider identifying an instance of copyright infringement, the service is only required to forward that notice to the offend- ing user. It does not need to take down the infring- ing content. That is about as lax as it gets. Instead, what the music industry wants is a notice and stay down regime. Recently, artists have also become more public in their demands to end safe harbours. In the U.S., Katy Perry, Deadmau5, Christina Aguilera, Garth Brooks, Jon Bon Jovi, Lionel Richie, Steven Tyler, and more signed a letter to the Copyright Office last year calling for an end to the DMCA safe harbour. In Canada, the Focus on Creators coalition sent a letter to Minister of Canadian Heritage Mélanie Joly asking her to take a more creator-centric approach when con- ducting the Copyright Act review this year and on future legislation. That letter was signed by more than 2,550 Canadian creators, including Alanis Morissette, Brett Kissel, Blue Rodeo, Gord Downie, Gordon Lightfoot, Grimes, Metric, and The Sheep- dogs. Henderson identifies safe harbour provisions as the number one reason labels and other rights holders cannot negotiate comparable deals with YouTube as they have with Spotify and other streaming services. “We could get what we get from Spotify by using our exclusive rights CIMA Pres. Stuart Johnston to say, ‘Either we come up with a new agreement or you can’t use our music,’” says Henderson, imagining an environment with a no- tice and stay down regime. “Wouldn’t you expect, at the very least, that if Google was subject to the same rules of the free market, that we would get the same num- ber? And if we got the same number, a lot of problems would go away overnight. The question would be: can they afford it? I laugh at that because of the valuation of YouTube.” To be specific, Justin Post, a Merrill Lynch ana- lyst that covers Alphabet (Google’s official corpo- rate name that nobody uses), published a report in 2016 estimating YouTube’s value to be $90 billion. YouTube’s argument against notice and stay down legislation is that it simply isn’t necessary. It says Content ID is doing an excellent job of iden- tifying infringing content and is even creating a new revenue stream by allowing rights holders to monetize that content. Content ID allows labels, publishers, and independent artists to indicate a default setting for when their content is identified in third-party videos. Those rights holders have three options: do nothing, take down the video, or monetize the video by placings ads. The labels, on the other hand, say Content ID is neither as effective as YouTube says nor is it truly giving them the takedown option. In its filing to the U.S. Copyright Office during a review of the DMCA in 2012, Universal Music Group claimed that Content ID doesn’t identify more than 40 per cent of the labels’ compositions on YouTube. Granted, that was five years ago; it’s reasonable to expect the system has improved. Google Se- nior Policy Council, Katherine Oyama, claimed in a 2016 blog post (the company seems to prefer blog posts over interviews to defend itself) that since 2014, “over 98 per cent of copyright man- agement on YouTube takes place through Content ID, with only two per cent being handled through copyright removal notices.” “I think both sides are right and both sides are wrong,” says Price. “There is a lot of music in the world and YouTube has business logic around its Content ID system. There are requirements around the amount of time a sound recording needs to play before it can even be fingerprinted, and then you move into mash-ups and remixes. So it’s safe to say that there is a large amount of music being used that is unidentified. At the same time, it’s safe to say that YouTube has created a system that has never existed on this planet before that does things that have never been done before and it, too, is going through growing pains, but it’s a pretty phenomenal system. But again, it has its problems and how could it not?” The larger concern for the labels, though, is that they don’t truly have the option to take their content off YouTube. In 2008, following unsuc- cessful contract negotiations, Warner Music Group attempted to take all its content off YouTube. The label later told the U.S. Copyright Office that it “views these efforts as having been largely unsuc- cessful” and estimated it spent nearly $2 million trying to do so. “So they tried to withdraw their recordings from the service through the Content ID program and it just didn’t work, so they end up having to accept it and click ‘monetize,’” says Henderson at Music Canada. “You’re put in an impossible position where you have no choice. And if Warner ca n’t get a proper deal, what the hell is some poor individual artist going to get out of this?” Ultimately, the entire YouTube debate is about how the music industry can reintroduce value to music and how to close the “value gap” between music consumption and music revenue. It’s widely believed that more music is consumed now than at any point in human history, with YouTube alone accounting for around 40 per cent of it. Buzz Angle Music estimates that over 13 billion on-demand videos containing music were streamed in Canada last year. Clearly YouTube sees music as a cornerstone of its multi-billion-dollar streaming empire. As Price says in conclusion, “No one forced YouTube to decide to have a model based on generating revenue off of music and videos any more than anyone put a gun to Daniel Ek’s head and forced him to make Spotify, so it drives me absolutely crazy when people push back and say that music doesn’t have value. Really, then why are you using it?” Michael Raine is the Senior Editor of Canadian Musician