Ministry of Sound sues Spotify over user-curated playlists

Source: Atatiwa, CC

If you have an interest in the music industry and its business models in the networked era, there's a couple of articles worth reading over at theguardian.com today that concern music streaming service Spotify. Spotify has been on the receiving end of negative criticism in recent months for the amount of money that artists receive from their labels for playback, as well as flak regarding the longterm viability and profitability of music streaming services. Some of the criticism may be fair but there are a few voices who think Spotify might actually be beneficial to the industry. Nevertheless, let's take a look at the Ministry of Sound case.

The first of which is by Stuart Dredge who reports that the some time night club and record label, Ministry of Sound, is seeking damages against Spotify for allowing its users to create their own playlists which ape the ordering of tracks that appear on their releases, and which may also include the name 'Ministry of Sound' in the title. This last point is significant as Spotify users can now search the service for such a term and easily locate these user-compiled playlists. The label's argument appears to be that these playlists are an infringement on their intellectual property.

It's worth noting that Ministry of Sound does not licence its releases to Spotify as the streaming service's business model seeks to remunerate the copyright owners of musical recordings, whereas compilations compiled and curated by Ministry of Sound would not benefit the label in question as many of the featured tracks are owned by other labels (which Ministry of Sound has had to pay a sum in order to licence for their

Ministry of Sound launched proceedings in the UK High Court on Monday, and is seeking an injunction requiring Spotify to remove these playlists and to permanently block other playlists that copy its compilations. The company is also seeking damages and costs.

Chief executive Lohan Presencer claims that his company has been asking Spotify to remove the playlists – some of which include "Ministry of Sound" in their titles – since 2012

So let's be clear here: 

1. Spotify has agreements in place with the relevant owners of tracks that have also been used by the Ministry of Sound in a series of compilation albums. 
2. Ministry of Sound and Spotify have no licensing agreements
3. Users of Spotify have sourced licensed tracks and complied them in playlists using 'Ministry of Sound' as an identifiable search term
4. These user playlists may feature tracks in the same order as the Ministry of Sound releases
5. There's no guarantee that the tracks in these playlists are the exact same tracks (ie same track length, same remix, etc) that feature on the compilations.

The second article worth looking at is a blog post written by Lohan Presencer, written to accompany the announcement to sue Spotify. The article itself is riddled with errors or disingenuous claims:

iTunes is now the largest music retailer in the world with 575 million customers and annual sales of $23bn. It is the main source of income for every record company on earth. Not only that, Apple built its hardware business on an iTunes foundation – iPods, iPads, iPhones. Not a penny of the sales of which were shared with record companies. 

Forgive me for being pedantic here but this claim needs qualifying. Apple did not build its hardware business on an iTunes foundation - at least not exclusively. iTunes did precede the iPod by about 8 months (released in the US in 2001), however in its original inception it was a tool for moving files from one device to another. The iTunes Store was not created for some time after that, coming to the US in April 2003 and to the UK in June 2004. Granted, sales in the iPod began to grow rapidly after 2004 with the 4th generation of devices capable of storing up to 40GB of music - enough to carry most people's music collections. 

It was hardware iteration that was key to the success here. It seems bizarre that Presencer should claim otherwise whilst also going on to note that this hardware success was not shared with record companies. Should Denon or Technics share their hardware revenue with record companies because they facilitate the consumer in being able to play their CDs or vinyls? Similarly, the success of the iPhone and the iPad have very little to do with music and more to do with devices' multiple functionality (internet access, telecoms, applications, photography, etc).

Presencer goes on to critique Spotify for failing to make a profit despite being heralded as the 'ultimate counter attack to piracy'. Perhaps the company can be forgiven for struggling to make a profit 5 years after launch given the costs of launching a new business in 24 countries, with all the various regional licencing and legal costs associated with such a venture. Spotify claims to pay out 70% of all its revenue to rights holders. Given how notoriously difficult it has been for newcomers to enter the hermeneutically sealed world of the music industry, it's no surprise that profitability is an issue. Only time will tell as to whether or not the 24 million active customers can be converted to paying customers.

Presencer then goes on to critique Spotify for its PR strategy:

Spotify is addicted to PR, its oxygen of growth. Favourable comparisons to Apple and positive reports of industry data showing exponential growth of streaming revenue are its lifeline. Yet what the believers fail to tell you is that published streaming figures include advertising revenue from YouTube, the great hidden free music streaming service.

What is the purpose of this comparison to YouTube? Are they also to be criticised for under paying artists for streams? There's very little stopping users of YouTube from creating Ministry of Sound playlists on YouTube and inserting the brand 'Minsitry of Sound' into the title, for example:

Perhaps Presencer is unaware that this can and does already happen? I'm sure he can't be that naive. The difference with the YouTube model here is that many of the songs that appear in these playlists are ripped from radio shows or uploaded via users rather than having been officially licensed (as Spotify does). Is YouTube the enemy of piracy here?

The final point worth examining relates to how much Spotify contributes to the musical economy of the UK:

According to BPI annual figures, UK record company revenues in 2011 were £795m. Total paying UK Spotify customers at that point could be reasonably estimated to be no more than 250,000. At £10 a month that's total net income of £25m. About 55% of this is paid through to record companies, £13.75m - less than 2% of total industry income

Ignoring the envelope math here (is it 55% or 70% paid to labels) and the outdated figures (Spotify had only been in the UK for 2 years at this point so was a niche player), Presencer seems to have an issue with a young company generating 2% of the total UK music industry's revenue! This beggars belief. Would he be happier if this was revenue lost to piracy? Given that attitude and behaviour change tends to develop quite slowly, Spotify and services like it should be held in slightly higher regard for their attempts to provide a better (for the industry if not the artists) alternative to piracy against a background wherein it is very easy to access music without paying for it.

A solution?

Presencer's gripe seems to be more to do with the fact that compilation curators like Ministry of Sound do not benefit from streaming services because they don't fit the business model that seeks to reward the owners of the music. The simple solution is sue and hope for success so that a service like user generated playlists in Spotify has to removed, thus making the product inferior. Or at least, nuke the ability to search for use playlists. If this does happen, then it might damage the usefulness of Spotify and subsequently, its ability to generate revenue for an ailing industry. I hope this doesn't happen as creating and sharing playlists is part of what makes Spotify a service I'm willing to pay for.

A more complex solution would be to ensure that the Ministry of Sound has to be remunerated and they could do this by ensuring that their compilations featuring tracks that they own the rights to thus making it impossible for Spotify playlists to ever be exactly like the official release (not that this is guaranteed anyway - see #5 above). Ministry of Sound used to produce tracks - I know because I bought them in the 1990s when the brand was building on its 'super club' status. It's often said of the tech industry that companies become more conservative as they age, become less willing to take risks and are more likely to sue than to innovate. Companies in this industry need to be agile and innovative if they want to stay ahead. Maybe Ministry of Sound can go back to innovating.

The sound of inevitability

Documents (.pdf) from the Council of the European Union released today have announced what many copyright, copyleft and copyfight activists had long expected - namely that the protection given to the owners of musical productions has been extended from 50 years to 70 years.  This has the ring of inevitability as there is an established precedent for extending copyright terms whenever they come close to expiring. More often than not theses extension terms are dressed up in the rhetoric of protecting artists, but more often than not, the term 'artists' is little short of being synonymous with 'multinational corporations'.

Jim Killock of the Open Rights Group says of the matter:

Despite the rhetoric, small artists will gain very little from this, while our cultural heritage takes a massive blow by denying us full access to these recordings for another generation.

Two recent reviews by British governments (Gowers, December 2006 and Hargreaves, May 2011) have examined the support for such protection and have been highly skeptical regarding the supposed benefits further extensions offer smaller artists. The more recent of the two reviews was very clear on this point:

Copyright Term Extension

Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels.  This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead. 

Despite this, there are frequent proposals to increase term, such as the current proposal to extend protection for sound recordings in Europe from 50 to 70 or even 95 years.  The UK Government assessment found it to be economically detrimental.  An international study found term extension to have no impact on output.

Hargreaves Review of Intellectual Property and Growth, Chapter 2, Section 2.16, page 19

PJ Harvey, 2008
© Phil King, Flickr

Whether a creative artist contemplates the economic benefit of copyright duration before they embark upon making music is hard to believe. It's unlikely that the likes of King Creosote, James Blake or PJ Harvey (Mercury Music Prize nominees and winner respectively) contemplate creating music before deciding against it on the basis that 50 years worth of music protection is insufficient, and that they require 70 years of protection in order to ensure their creativity is realised.

Additionally, how does retroactively extending the duration of copyright terms help to incentivise musicians who have already made music? Jimi Hendrix, Amy Winehouse, Kurt Cobain, Jeff Buckley, etc all made music that many people found inspirational under very different contexts, and now that they are deceased the duration of the protections afforded to the owners of their copyrighted work has been extended further - most likely to benefit the interests of bloated publishers and distributers.

The new extension does offer more protection to those musicians working in groups.  The new terms state that the "term of protection will expire 70 years after the death of the last person to survive: the author of the lyrics or the composer of the music". Given that 2012 was the year that many seminal pieces of music from the 1960s (ie The Beatles and The Rolling Stones) were due thought to be about to enter the public domain, it's perhaps inevitable that copyright protection has been extended ever further. Ringo and Paul might breathe a sigh of relief as their individual longevity benefits them both. It's a fairly safe prediction that around 2030 there will be highly vocal lobbying on behalf of the recording industry to extend the new terms to 95 years, or forever less one day.

What is worth noting from the EU Council minutes is that a number of countries did vote against the proposals (ie, Belgium, Sweden, Netherlands, Luxembourg, Slovakia and Slovenia) while a couple abstained from the vote (Estonia and Austria). This hardly reads like a unanimous vote - Directive 2006/116/EC seems to have scraped through. More than 17000 signatories also constituted a vocal part of the call to reject the extension term via the Sound Copyright campaign, but it seems like the industry has won yet another pyrrhic victory.

How much is your silence worth?

Copyright is a funny old thing - it's meant to protect creative works and provide incentive to creativity by virtue of guaranteeing some form of property rights over works so that people will make new and original pieces of music, literature, art, etc. Every now and then the dogged pursuit of those people thought to be exploiting or violating copyright by virtue of taking something that isn't theirs and sharing it without the consent of the rights holder(s) results in some rather bizarre events.

Take for instance the strange case of John Cage's piece of experimental 'music' 4'33" - a 3-movement piece of music composed for any instrument during which the score instructs the musician to not play any music so that the audience can take in the ambient sounds of their environment. More often than not this results in silence, or at the very least, near silence. The track is well-known in the UK and was even the subject of an attempt to thwart the domination of the Christmas No. 1 slot by X-Factor contestants in 2010, catchily entitled Cage Against The Machine (after the success of the Rage Against The Machine campaign the year prior).

No doubt, some people may appreciate the artistic significance of the break in instrumentation (some of Cage's works prior to this piece feature silence prominently) while many will think of this silence as little more than an artistic prank. Nevertheless, the track has been written, recorded and performed by Cage, thus enshrining it's position within the realm of copyright. Strangely, the iTunes single version of the track is 4'39" and features some noise in the first 5 seconds, perhaps to alert purchasers to the fact the silence is 'playing'

So it was with some amusement that I stumbled across this post which points to a copyright infringement claim by Warner Music Group against a YouTube user AdamLore who posted the Cage track to the videosharing site on the 8th of November 2009.  In cases whereby rights holders dispute that users of YouTube are not entitled to share such works they can go through a series of procedures to notify the site that a violation has occurred - this tends to result in the audio being stripped from the video and oftentimes replaced with something different.  This is what happened in the case of the AdamLore video - see below:

This is not the first time that Cage's silence has been the centre of a copyright dispute.  In 2002, the British composer Mike Batt (best known in the UK as the creator of the children's TV series The Wombles) found himself at the centre of a legal dispute over the track "A One Minute Silence" on an album by his band, The Planets. Strangely enough, there was a remarkable similarity between Batt's silence and Cage's silence. This eventually led to an out-of-court settlement in which Batt handed over an undisclosed six-figure settlement to the John Cage Trust, as well as Cage being co-credited as writer of the track. At the time Batt gave a cheque to representatives of Cage's publishers Edition Peters on the steps of the High Court in London, who stated that:

We had been prepared to make our point more strongly on behalf of Mr Cage's estate, because we do feel that the concept of a silent piece -- particularly as it was credited by Mr Batt as being co-written by "Cage" -- is a valuable artistic concept in which there is a copyright ... We are nevertheless very pleased to have reached agreement with Mr Batt over this dispute, and we accept his donation in good spirit.

The point here is that Edition Peters own the publishing rights to Cage's work, not Warner Music Group, so how is it that the latter firm were able to get unofficially posted videos silenced under the guise of copyright violations?  It's not as if the AdamLore video is the only one to be silenced - there are others too (see ServeTheBeaver), suggesting that this instance might be more of a case of people poking fun at overbearing copyright. However, the notion of silence being owned is still an intriguing one.  Is this a case of copyright going too far or does it represent the justifiable rights of a copyright holder protecting their estate?

NB: it's worth reading through a few of the comments on AdamLore's video as they suggest that if someone was to upload a legally purchased version of 4'33" to YouTube the track is not automatically flagged as violating the ToS. I don't intend to do so myself but if you can confirm this I'd be happy to hear from you. AdamLore himself states that the WMG notice is a prank, serving to highlight the rather heavy-handed powers of copyright enforcement

Copyright Extension Time - Act Now

It's that time again - the push to get the copyright protection for sound recordings to 70 years is back on the cards via the European Council.  It is questionable as to whether or not such an extension will benefit many musicians. This was something I was keen to oppose back in November of 2009, so long time readers of this blog will be familiar with the arguments. If not check out the video below for details:

The most likely practical outcome of the extension is that material recorded by (now deceased) artists from more than 50 years ago will no longer make it's way into the public domain for it to be repurposed or remixed free from licensing obligations.  There's plenty of independent analysis to support a rejection of the extension terms (see the links below).

You can make a difference by writing to your MEP now.  The Open Rights Group have helpfully created an prewritten email template for you to send and they'll even find your MEPs for you.  Click through for info and support and do your bit.

This is the edited version of the email I sent my MEPs:

I am writing to you about the European Commission proposal to extend the term of copyright protection for sound recordings from 50 to 70 years.  

I am extremely concerned about the possible passing of this Directive. The economic evidence is stacked against the proposal. And it will benefit only a small number of artists and businesses - 96% of the returns will go to the big labels and a minority of the biggest artists. It will result in large parts of our cultural history being locked away. Leading IP professors, the UK government's 'Gowers  Review' of IP, and independent economic analysts have all said that extending the term of protection is unwise. 

The Financial Times called the proposal 'disgraceful' in an editorial in 2009. The University of Cambridge's Centre for Intellectual Property and Information Law concluded that 'it would be particularly inadvisable, given our present state of knowledge, for a rational policy-maker to extend the term of copyright in sound'.  

I wrote to my MEPs about a similar matter in November 2009 and since then a number of independent academic studies into copyright extension terms have been published in which they've questioned the value of increased powers, for example, the Social Science Research Council (SSRC) project headed up by Joe Karaganis entitled 'Media Piracy in Emerging Economies or the work of Bart Cammaerts and Bingchun Meng of the LSE.  I will be co-conveening a series of ESF-funded exploratory workshops in Leuven, Belgium this week with several other academics from the social sciences, law and computer sciences in which we will be seeking to foster a more empirical approach to data in this area and the effects of policy changes. 

Since the Directive passed in 2009 a new Parliament has been elected. However, I am concerned that it may now pass through the Council without any fresh scrutiny or debate. I would therefore urge you to sign the request for 'renewed referral' being tabled by MEP Christian Engström (of the "Greens - European Free Alliance" group), and to oppose this damaging proposal. 

Copyfight!

The Digital Economy Bill #debill summary to date

Late yesterday afternoon amendments made to the Digital Economy Bill (Twitter hashtag #debill) were heard in the House of Lords. This is a controversial bill for a number of reasons, not least the threat of disconnection for illegal filesharers without due legal recourse, but also for the sweeping powers the Bill seems to give to Ofcom to regulate 'broadcast' content (ie the content that a partial newspaper or press publisher can host on their website), thus jeopardising press freedom. Writing in the Guardian last November, Lillian Edwards, a professor of internet law warned how the Bill would jeopardise open wi-fi spaces. Universities and libraries have also complained about the Bill's impact.

For the uninitiated text from the original Bill can be found here and the amendments can be found here.

Responses

There has been a great deal of interest in this Bill from people interested in copyright and what it might mean to them in the future. Indeed, the Open Rights Group have been actively lobbying to raise public awareness, and several of their members provided excellent Twitter commentary whilst the debate was taking place (notably Glyn Wintle @glynwintle and Florain Leppla @florian107).

In the blogosphere photographer, Philip Dunn, wrote one of the most compelling and lucid criticisms of the Digital Economy Bill. I'll have to link to the Google cached page hosting the piece as his host received so much attention the server was closed. [Edit: Paul Bradshaw @paulbradshaw is hosting the article via the Online Journalism Blog]. His main bone of contention was with what the Bill describes as 'orphan works' under Clause 42 - these are typically works where it's difficult or impossible to contact the copyright holder. This situation can arise for many reasons, not least that the author may never been publicly known because the work was published anonymously or the work may have never been traditionally published at all. The concern in this context is that the bill may mean that photographers might lose ownership

You can find excerpts of his argument below:

Photographers to lose copyright protection of their work

This startling and outrageous proposal will become UK law if The Digital Economy Bill currently being pushed through Parliament is passed. This Bill is sponsored by the unelected Government Minister, Lord Mandelson [sic].

[...]

The idea that the author of a photograph has total rights over his or her own work – as laid out in International Law and The Copyright Act of 1988 – will be utterly ignored. If [sic] future, if you wish to retain any control over your work, you will have to register that work (and each version of it) with a new agency yet to be set up.

[...]

International Law, through the Berne Convention for the Protection of Literary and Artistic Works, recognises the ownership rights of the creator of the ‘property’. This enables image owners to control how their work is used, and whether it is used at all.

International Law will be ignored by the British Government and this new Act will overturn more than 150 years of UK copyright law.

If that wasn't enough reason to be concerned, there are even more problematic implications:

Photographers are to lose all effective rights to take photographs in public places.

Not content with taking away photographer’s copyright, another section of this Government is proposing sweeping changes to your freedom to take pictures in public places.

The Information Commissioner’s Office (ICO) has deemed that a photograph taken in a public place may now be considered to contain ‘private data’

This means that if you take a picture in the street and there is a member of the public in the shot, that person has the right to demand either payment – if you wish to publish the image – or that you do not publish it. In fact, according to the ICO. There does not actually have to be an objection, it is up to the photographer to ‘judge’ whether the subject might object.

You can find more posts by Philip Dunn over on www.photoactive.co.uk

Philip goes on to question the sense of such a decision when the average Briton is captured on surveillance camera as much as 300 times per day! It also calls into whether or not a photographer can be prosecuted for uploading an image featuring members of the general public to a photo sharing site like Flickr or Facebook.

Exactly how this can be policed or enforced remains to be seen, especially when the services listed may be outside the national jurisdiction of the UK. Already, Section 76 of the Counter Terrorism Act has deemed it illegal to take photographs of police officers - something that would render the recording of Ian Tomlinson's death following police intervention during the G20 protests a crime. Critics fear this may lead to people being unable to record or photograph legitimate public protests which frequently feature the police.

Back to the Bill

Another area of concern was addressed by Conservative front bencher Baroness Buscombe (Chairman of the Press Complaints Commission), a point I alluded to briefly in the introduction. She pointed out that the phrasing of the Bill seemed to give Ofcom the power to regulate what was described as "broadcast material". The concern here lay at how that term was interpreted. Currently Ofcom regulates broadcast television content whilst the PCC deals with matters involving the press. In the context of news this is very important and the rules governing "due impartiality" are applicable to broadcast content, but not to the press which is permitted to be partial (ie the oft-quoted 'freedom of the press').

Lord Puttnam supported Baroness Buscombe in this matter by expressing his concern over what can be described as "broadcast" in a converged multiplatform media environment by citing the example of material rejected by a Public Service Broadcaster which then goes on to be picked up by a partial press publisher and is subsequently hosted on their website. Does Ofcom or the PCC regulate in such matters? Lord Davies' response was less than precise in that he described broadcasting as that pertaining to be the type of content appearing on television. The way in which audio and video content is remediated in the digital age poses more questions of this Bill than can be answered by its proponents, so it seems.

Anger

Lord Puttnam (a former Chancellor of the institution in which I work) expressed some anger at the fact the Bill was not going to be referred to the Information Commissioner, responsible for dealing with privacy issues. Lord Young (who is co-sponsoring the Bill with Lord Mandelson) indicated that such a deferment would delay the Bill from being passed. It seems the government would rather pass a Bill that is deliberatively vague, poorly written and ill conceived which would need to be rewritten rather than make the appropriate amendments first!

Lord Puttnam accused Lord Young of attempting to rush a Bill though the House "that none of us is particularly proud of" and which hasn't been discussed appropriately. He also expressed concern at the "extraordinary degree of lobbying" that those involved in drafting the amendments had come up against from the creative industries. Lord Whitty expressed concerns that the Open Rights Group have been actively campaigning against: that the consumer accused of infringement will not be able to defend themselves in a court of law.

Make no mistake, this is a Bill which seeks to favour the rights of the content industries over the rights of individuals who will be labelled as guilty until proven innocent. They will be pit against the strong arm of the content industries and their financial powers, with the burden of evidence placed at their feet to prove their innocence.

ISP TalkTalk has already expressed their concern at this Bill:

"The Digital Economy Bill will give rights holders the power to act as a judge and jury, allowing them to demand that ISPs disconnect their customers without having to prove their case in a court of law. TalkTalk is the only major ISP that has said it will simply refuse to do this and will fight its case in every court in the land and in Europe if it has to."

It's still not too late to get involved and have your concerns voices. Visit the Open Rights Group's website today and find out what you can do to be heard.

---

nb: apparently #debill is an appropriately hashtag - in Polish it means 'moron'. Thanks to Falkowata for that.

Pirate Finder General

Yesterday it emerged via Cory Doctorow's boing boing blog that the UK government is planning to introduce some radical changes to the Digital Economy bill that will seek to combat copyright infringement in a most aggressive manner. One of the consequences of these changes is a serious threat to democracy in that the Secretary of State (currently Lord Mandelson) will have the power to make "secondary legislation" (legislation that is passed without debate) to amend the provisions of Copyright, Designs and Patents Act (1988).

Effectively, this would give an unelected official the power to do anything without Parliamentary oversight or debate, provided it was done in the name of protecting copyright - something which benefits big business in cases where only around 2% of copyrighted products are worth supporting in law (98% of copyrighted material is no longer supported by the market but is still covered by the blanket law). This is clearly a case of industry being more important the people. Doctorow attribute the following reasons for his new proposal:

1. The Secretary of State would get the power to create new remedies for online infringements (for example, he could create jail terms for file-sharing, or create a "three-strikes" plan that costs entire families their internet access if any member stands accused of infringement)

2. The Secretary of State would get the power to create procedures to "confer rights" for the purposes of protecting rightsholders from online infringement (for example, record labels and movie studios can be given investigative and enforcement powers that allow them to compel ISPs, libraries, companies and schools to turn over personal information about Internet users, and to order those companies to disconnect users, remove websites, block URLs, etc)

3. The Secretary of State would get the power to "impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement" (for example, ISPs could be forced to spy on their users, or to have copyright lawyers examine every piece of user-generated content before it goes live; also, copyright "militias" can be formed with the power to police copyright on the web)

What does this mean for you?

There are far ranging implications at stake in the changes being proposed here. Imagine the implications for uploading a recording of, say, a birthday party featuring background music to YouTube... That music would be subject to copyright law making the uploader a copyright infringer and a potential victim of this new bill - liable for any breaches made. Place this scenario in the context of point 2) and you can imagine being the target of record company surveillance watching your every move, even going as far to restrict your access to specific content. At what point did the British public decide to let the entertainment industry police its behaviour as if it was a state authority?

Get involved

Naturally, organisations like the Open Rights Group are campaigning against such changes and encouraging members of the public to phone their MPs with their concerns. I urge you to do the same as time is very short. You can email your MP here but due to the time limits a phone call is more likely to be effective.

Further reading:

Charles Arthur, Guardian, 20/11/09 'Treasury secretary defends government's online piracy plans'
Charles Arthur, Guardian, 20/11/09, 'Why are cyberlockers suddenly such a problem, Lord Mandelson?'
Dept for Culture, Media & Sport, 2009, Digital Britain report

Copyright/wrong 5

I'm expecting this to be the final post in this series, given that my Labour MEP Steven Hughes has responded to my objections to the extension to the copyright term. This is what he had to say:

Further to your email of 18th April 2009, I attach for your information details of the final agreement reached in the European Parliament on this important matter.

I am sure that you will not be happy with this result, based on your email, but it still represented a compromise in regard to the Commission's original position.

I did consider your views on this matter and wish to thank you for taking the time to contact me.

Quite a brief response, coupled with a press release available from here. Quite a succinct response and no real indication as to which which he voted on the issue.

Copyright/wrong 4

I recently wrote to my MEPs, asking them to vote the copyright extension term down. I have since heard back from my Conservative MEP, Martin Callanan. What he had to say is reproduced below. This came after he wrote me back on a completely different issue that I didn't raise with him - not exactly confidence inspiring:

Thank you for your email regarding the proposals for the copyright term extension directive.

Issues surrounding copyright extension and the level of copyright are controversial and are matters that have been of importance to policymakers over the last decade. The Conservatives in the European Parliament have actively followed and been involved in the debate and are of the opinion that Copyright is extremely important because it is the way artists are rewarded, businesses make their money and invest in
the future.

We need a copyright framework that is flexible, accessible and fair. The Commission proposal (as modified by the Parliament) is not perfect, but it does meet many of these requirements. In the digital age, music is readily available online and copyright provisions need to take account of market changes. Extending the term of copyright is important if we expect performers and the music industry to carry on investing,
innovating and creating and it is only right that they are given greater protection for their investments.

Countries such as the USA and India have already instituted terms of copyright for 95 years and in the interests of competitiveness the Conservatives feel that it is important to support an extension. At a time when creative industries based on intellectual property are generating an increasing percentage of GDP in the EU, the current disparity between the terms of protection clearly puts British record
companies and performers at a competitive disadvantage.

I supported the compromise proposal that would give artists a 70 year term of copyright protection which was successfully passed in Strasbourg. This will bring a greater level of uniformity to those involved in the music industry but also recognises concerns that lengthening the term of copyright to 95 years was for too long a period.
The proposal also recognises the longer life expectancy of artists.

The extended term will have a positive impact on consumer choice and cultural diversity. This extension will benefit cultural diversity by ensuring the availability of resources to fund and develop new talent. In the short to medium-term, a term extension will provide record companies with an incentive to digitise and market their back catalogue of old recordings. It is already clear that internet distribution offers unique opportunities to market an unprecedented quantity of sound recordings.

The UK has a very strong music industry and safeguards must be put in place if we are to maintain our position in today's marketplace. The copyright extension is the first step in this direction.

I'm not convinced by the argument that extending the copyright term will encourage record companies to digitise older content. Surely, if there was market demand for music from the 1950-1960s then that material would have already been digitised? After all, the push for digitising music has been one which has spanned three decades now. Any content from that era that has not been digitised by the record companies is unlikely to be commercially significant for them to do so now. If it hasn't sold significantly in the last 50 years, why would it do so for the next 20? Plenty material from that era does already exist, especially the stuff that is well known like Buddy Holly, Little Richard, Eddie Cochrane, etc. But what about the music from that period which isn't commercially viable yet could have been released into the public domain to enrich culture and feature in contemporary mash-up/remix projects?

I'm also unconvinced by the claim that the USA and India have already extended the terms of copyright, therefore it is implicit that we do so too. Where America leads, we follow? I seem to recall being led to believe Iraq had weapons of mass destruction... I'm not sure that there are many British record companies from the 1940s or 1950s that are currently still around. I was under the impression that the big four major labels of the present era were global entities.

I take the point that artists are living longer, but I'm not convinced that the length of time someone should be remunerated for their work is something which extends to 50 yeas never mind 70. You can't even get a builder to guarantee your house will be around for half that length of time! Why should Cliff Richard be rewarded for something he did 50 years ago? Has he not learned new skills or saved for his pension like most people have to do?

Copyright/wrong 3

Just in case you were waiting to find out what the MEPs did in relation to this letter, I received this response from Fiona Hall MEP:

Thank you for your recent email regarding the Commission’s proposed extension of copyright on sound recordings. This came to vote today in Parliament.

This was a seriously flawed proposal, and my Lib Dem colleague Sharon Bowles MEP tabled an amendment in Parliament to reject it in its entirety. I am pleased that this has gained support among the wider European public. Unfortunately it was defeated in the vote and a limited version of the extension has now passed.

In advance of the vote Sharon tabled an additional amendment in the case that the ALDE/Green amendment to reject did not pass. This would have seen the term of protection reduced to 70 years, and applicable only to recordings produced before 1975. A version of this has now been adopted into the text: the term of protection agreed by Parliament has been reduced from 95 to 70 years; however Sharon’s proviso of only applying to recordings produced before 1975 did not make it, and the new 70-year term will apply to all sound recordings.

I should mention that the process is not over, and there are still ways for us to defeat the proposed extension. I am still hopeful that we can secure a rejection from the Council of Ministers; if that is the case then it will come back to Parliament for a second reading. This would likely be after the European elections and it may be that the newly elected Parliament may be more favourable toward rejecting the extension.

The Liberal Democrats tried to fight the good fight but to no avail. The other MEPs I contacted failed to respond. My Conservative MEP wrote me here

Copyright/wrong 2

It's been interesting to watch the media fallout and the Internet spillover following the recent Pirate Bay trial. I recently signed up the Open Rights Group's listserve and have been watching my email inbox fill up with lots of informative titbits which seem related to my earlier post on the way in which copyright law is inappropriately proposed.

The major story that has had the blogosphere and twitterverse talking today seems to be about the supposed bias of the Pirate Bay judge, Tomas Norström. Torrentfreak has suggested that there are a number of links between the 'guilty' verdict and the affiliation of Norström with a number of pro-copyright groups. This has raised a few eyebrows and rumours of demands for a retrial.

In other news, there were numerous reports pointing to a Nordic study which suggests that pirates are about 10 times more likely to purchase copyright material than non-pirates. The study looked at over 1900 people over the age of 15 and found that those who use music download services were more likely to buy music than those that didn't. This comes on the back of an earlier Canadian study from 2006 which suggested that P2P users buy more music than is typically conceded.

Author, activist and co-editor of Boing Boing, Cory Doctorow, has recently posted an article on the nefarious activities of the pro-copyright groups over at Interent Evolution which is well worth a read. In it he discusses the public and private meetings which go on between pro-copyright lobbyists (IFPI, RIAA, etc) at the United Nations level, in relation to the Anti-Counterfeiting Trade Agreement (ACTA) and the World Intellectual Property Organization (WIPO).

For those of you wondering as to the outcome of my letter to the MEPs regarding copyright-term extension act, I have received an acknowledgement from one of them. More on that story as it breaks.

EDIT - it seems that the proposed copyright term extension has been passed and now moves forward to the Council of Ministers. The full details can be found over at the ORG site.

Just for fun, why don't you pay a visit to www.thepirategoogle.com to look for music, film and other files. The site isn't affiliated with Google but it has been mocked up to save you the hassle of using Google to find torrent. Remember, part of the The Pirate Bay defence was that they were a search engine like Google, pointing to links for related material. Google can be used for much the same so ... when are media industries going after the biggest fish?

Copyright/wrong

The Open Rights Group (ORG) alerted me to the news that recent intensive lobbying pressure has resulted in the hastily arranged tabling of the copyright extension proposal, which seems likely to go ahead next Thursday. I have posted on this issue elsewhere on this blog but I believe the video below explains the problems of the proposed changes better than I could do the issue justice:

Becky Hogge: Speech at Sound Copyright conference in the EU Parliament 27.01.09 from Open Rights Group on Vimeo.

The proposed extension seems better suited to supporting corporate cartels than protecting artists. It also acts as a blanket cover preventing material no longer profitable from entering the public domain, from which other creative works can be derived. The industry is looking to score another result fresh on the back of the Pirate Bay verdict, but this represents a very different issues with wide-ranging consequences for the public domain and the future of digital creativity.

The basis of reanimating this extension is highly dubious. ORG are advocating that concerned citizens should act now to reject the proposed act. Visit the Sound Copyright site to find out what you can do to fight the industry lobbyists. Write to your MEP now - this page will give you some useful advice on how to lobby your MEP with a briefing pack full of relevant info. It is easy to do - people in the UK can use the WriteToThem service to get involved. It finds the name of you MEP for you and even gives you a page to contact them from.

This is what I wrote in my letter to the MEPs in question:

Dear Fiona Hall, Stephen Hughes and Martin Callanan,

The European Commission has recently proposed to extend the term of copyright in sound recordings in a move "aimed at performers". I believe this does not address the problem it claims to, while imposing serious costs on consumers, follow-on innovators and re-users of information. I also believe it endangers the basis of public respect and acceptance of intellectual property. There has been a constant cycle of copyright extension terms in recent decades, all of which protects businesses at the expense of creative re-use of material which should have entered the public domain long ago.

If Europe wishes to keep its ability to innovate, it must not lock in the current industry structure at a moment of great technological change, it must not inhibit digital creators and archives in the exploration of music - music which has been paid for once already, during the existing term. There must be a public domain from which innovation can be propagated. Excessive copyright restrictions benefit a minority of key industry players and harm the majority of the public by denying the public access to material no longer commercially viable.

If copyright law, cynically, departs from its purpose, piracy becomes an easy and attractive option.

I urge the European Parliament, and the governments of member states of the European Union, to consider carefully the independent evidence on copyright term extension, and reject the Directive in its proposed form.

Yours sincerely,

Robert Jewitt

Feel free to repurpose/remix the content in any way you see fit. A wholesale cut/paste job will be rejected by the WriteToThem site though. Get behind the academics who have already pointed out the problems with this bill.

Your voice counts.

Watch how Stanford professor Lawrence Lessig shows the impact that inappropriate laws can have on creativity below:

File-sharers fight back?

The MAC281 Cyberculture lecture this week dealt mainly with the responses file-sharers have given in relation to years of music industry rhetoric which has sought to label them as criminals. I've included a link to the slides I used in the session below (best viewed in full screen due to small text on screen grabs):

Mac281 The Suits Vs The Scene 2008 9

View more presentations from Rob Jewitt. (tags: mac281 piracy)

One of the issues that tends to get brought up time and again by filesharers is the issue of copyright infringement in a digital age. In the book Wikinomics: How Mass Collaboration Changes Everything the authors, Don Tapscott and Anthony D. Williams identify a demographic born between 1977 and 1996 as the first to 'grow up in a digital age ... bathed in bits' (2008: 47), which they refer to as the Net Generation or N-Geners. They claim that this generation is distinct from previous ones due to the myriad ways in which they not only consume media, but scrutinise it, and re-purpose it.

Tapscott and Williams go on to suggest that these N-Genres are not passive consumers but rather, are driven by a desire 'for choice, convenience, customization and control by designing, producing and distributing products themselves' (ibid: 52). They go on to highlight the creation of Napster in June 1999 by the then-student Shawn Fanning as an example whereby a young man with an idea was able to create a piece of software to share audio files amongst friends, which then went on to pose a serious threat to the established distribution model for the music industry.

A similar example can be found in the guise of Jesse Jordan who was a freshman at Rensselaer Polytechnic Institute, New York, during 2002. Jordan developed an internal network search engine which enabled anyone on the institutes network to search the public folders hosted on the network, which just so happened to include music files. When the RIAA caught on to this side-effect of the network search tool, they branded Jesse a pirate and demanded he pay them $150,000 per infringement - a total of $15,000,000 (see Lawrence Lessig, 2004 for more details) - money he clearly didn't have.

With some guesses putting the amount of web traffic now taken up by file-sharing as high as 50%, it would seem like these N-Geners are bringing about a philosophical rethink with regards to how we make sense of copyright and intellectual property in a digital age:

The ability to remix media, hack products, or otherwise tamper with consumer culture is their birthright, and they won't let outmoded intellectual property laws stand in their way (Tapscott & Williams, 2008: 52)

The emergence of Web 2.0 platforms and user generated content has further entrenched this type of activity. In a more recent book Lessig (2006: 196) recounts the example of digital creativity in the guide of Anime Music Videos (AMVs) whereby young people spend hours re-editing anime cartoons to perfectly match a piece of music before posting their creations to the Web. One company in particular, Wind-Up Records, didn't see this as an example of creativity but rather, as an example of copyright violation and ordered a take-down. Instead of seizing this as an opportunity to connect with fans or engage with customers they assumed a fairly traditional position.

It is this atypical type of industry reaction which irks the N-Geners and actually stands in the way of creativity and innovation, and helps contribute to a sense of 'net banditry' (Rojeck, 2005) amongst file-sharers. Less than a decade ago the mainstream music industry was dominated by a handful of global players - EMI, SONY/BMG, Universal, Time Warner - who had an established business model which had served them well for many years. Key to this was a firm grip on distribution outlets for their products. Music had to be written, recorded, produced, marketed and physically transported around the world - an expensive business. The creation of services like Napster and zero-cost search tools played a part in transforming that traditional relationship. The advent of digital audio compression techniques (e.g. MP3) also played a substantial part in that process. We shouldn't forget that these developments helped bring about an attitudinal shift.

To paraphrase the recent Creative Freedom Foundation campaign, the distinction between using and copying artefacts in a digital age has become blurred. The movement towards digitisation, rapid search and zero-cost distribution has enabled a remix or 'mash-up' culture that enables people to be creative in new and exciting ways. We need a legal system which reflects that. We need a copyright system which is fit for a digital age We need a legal system that reflects the behaviour of a multitude of people who breach current intellectual property laws on a daily basis.

We don't need what the New Zealand authorities have been proposing recently whereby ISPs will be forced to take down internet connections and websites of anyone accused (nb: not actually convicted) of copyright infringement. Section 92A assumed that people would be guilty upon accusation irrespective of the circumstances. There are all sorts of problems with this law which TorrentFreak cover here. A small reprieve came today when John Key announced that the implementation would be delayed until March 27th.

This might be a temporary reprieve however and more pressure needs to be applied, especially when the lobbying power of the world's copyright holders are in play. They are rich, powerful and organised. What happens in New Zealand could easily happen elsewhere if pressure is not applied. The Irish music industry (as represented by IRMA) has already succeeded in getting one of the biggest Irish ISPs to block access to file-sharing sites and it won't be long before others are forced to follow - this is despite the fact that sites like The Pirate Bay have not been deemed illegal in Ireland. An organisation with deep pockets has pressured an ISP into censoring the Internet on behalf of a commercially driven entity.

What does this tell us about censorship and network neutrality? It tells us we should be worried about the future of digital content.