User Upload Platform-Lubbers Beware -- IFPI is Circling Safe Harbours

Taking advantage of copyright exemptions?  Is that a good thing to do because it affirms the very existence of those exemptions and their legal basis -- or is it a bad thing to do because it deflects money away from the pockets of those who have at least a moral claim to receive it?  To add fuel to discussion of this topic, here's a wee postie from North of the Border, from a former guest Kat -- Kate Manning, now of Curated Media.

Oh, the choppy waters of copyright law! While piracy is far from reaching low tide, its buccaneering on the high seas has ebbed to a certain degree and the Good Ship Rights Holders is now following a new lodestar, headed straight for safe harbours under EU law – where network service providers and user-generated sites drop anchor to limit their liability for the copyright infringement of their users.

But enough of the nautical metaphor. Self-proclaimed ‘voice of the recording industry worldwide’, the International Federation of the Phonographic Industry (IFPI), is loud and clear: “user upload platforms, such as SoundCloud and YouTube, are taking advantage of exemptions from copyright laws that simply should not apply to them”, and have used their position to negotiate unfair licensing terms.

As reported by Torrent Freak’s Andy here, IFPI’s chief executive Frances Moore said:

“Although some user-upload services are now licensed by rights holders, those licenses were not negotiated in a fair environment because rights holders’ content was already available on the services on a mass scale and the measures available to prevent this – i.e. notice and take down and Content ID – are easily circumvented and ineffective in preventing all content being available”. The result is a “value gap” – “artists and record producers are not being paid fairly for the use of their music”.

IFPI has diplomatically stated that it’s looking for legislative clarification of the safe harbour exemptions. But what it seems to mean by clarification is a restriction of the law, so that safe harbours will only be available to passive intermediaries – with the effect that any service that “curates and monetises content” or is “active in distributing content”, would have to “license on fair market terms in the same way that services such as Deezer and Spotify do”.

This is tricky. Would placing user-generated sites within the same bracket as digital subscription services really be an effective method of controlling the use of copyright works? Would artists, authors and other creators of works really benefit and get the compensation they feel they deserve? Is the idea even relevant? The subscription service market is relatively new, and user-generated sites and the authors of copyright works are becoming wise to it, setting up their own in competition to established giants (e.g. the launch of Jay Z’s Tidal earlier this year and the impending launch of YouTube’s Music Key). 

What do IPKat readers think?

Roomba-Riding Shark Cat here.