Major Labels Split On Supporting Article 13; As Music Publishers Complain They Can’t Make Money From Parodies
The controversial Article 13 of the EU's Copyright Directive has apparently lost some support from the major labels, after the music publishers learned the article would prevent them from making money off parodies of their artists' songs. Universal is the most opposed however Warner and Sony Music taking a more nuanced position.
Op-ed by Mike Masnick of Techdirt
Billboard Magazine reliably publishes the views of folks inside the music industry, so a recent column exploring various views regarding Article 13 in the EU Copyright Directive is enlightening. As we've discussed, the record labels released a letter saying that they no longer supported Article 13 because it "no longer meets the objectives" they originally wanted — which was basically "Google cough up all the money."
Of the three major labels, industry sources say Universal is the most opposed to the final version; Warner largely favors it, though executives think the text contains flaws; and Sony Music is between the two.
It still feels like the "opposition" from legacy copyright companies is mostly for show. When discussing Article 13, they all seems to freak out any time anyone points out reasons to drop it — so it feels like the "oh, we oppose it" has mostly been an attempt to see if they can go for broke and make the law even worse. However, if Universal Music really opposes Article 13, it should speak up.
The even odder bit in the Billboard piece is watching some execs whine that in trying to respond to (accurate) claims about how Article 13 will stifle memes, it will mean they might not be able to get money from people making parodies of their works:
At present, in markets where parody exceptions do not exist, rights holders are able to monetize music parody videos. If passed, Article 13 potentially shuts down that source of revenue.
"I don’t think you’ll find many rights holders who will come out and say they like [Article] 13.5. In territories where they don’t currently have these exceptions, you are potentially reducing revenues for a particular use of content," says one exec.
Cry me a river. Oh, you can't make money if someone parodies your song. What a shame.
Of course, what's odd, is that later in the same damn article, they quote someone saying that Article 13.5 doesn't actually let this happen, even though that's the claim earlier in the article:
"Is what we’re giving away something we can live with? The general reaction among rights holders, labels and publishers is yes," agrees John Phelan, director general of international music publishing trade association ICMP, which had previously joined IFPI and IMPALA in opposing an earlier, weaker version of the directive. He says the final text fixed many of those issues. A key revision was the removal of language that suggested platforms would not require licences or be liable for user-generated content that fell under the categories of caricature, parody or pastiche.
"It was critical that was changed," says Phelan. "If that provision was included, we couldn’t have supported Article 13, nor the directive."
So, uh, wait. Under Article 13.5, are memes and parodies allowed for free… or not? If you look at the actual text, it shows how this game is being played:
The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation.
Member States shall ensure that users in all Member States are able to rely on the following existing exceptions and limitations when uploading and making available content generated by users on online content sharing services:
a) quotation, criticism, review,
b) use for the purpose of caricature, parody or pastiche.
Let's be clear: there are all sorts of problems with this. First off, it only applies in states that alreadyprotect parody and such, so parodies and memes and the like will be blocked in countries that don't have those exemptions already under the law. That's a pretty big deal.
Second, this paragraph is nonsense. The law requires that platforms don't allow any copyright-covered material be uploaded (which is why everyone will need to use filters). How the hell does a filter determine if it's for quotation, criticism, or review, or a caricature, parody or pastiche? The draft bill is entirely silent. All it says is "don't let that stuff be blocked." It's the ultimate in "nerd harder." Basically block everything, except the stuff that looks identical to the other stuff, but if you get anything wrong we'll fine you out of business. Anyone who understands the first thing about platform liability recognizes that the only way to stay on the right side of this law is to block things — even if they fall under these exceptions.
This clause serves literally no purpose other than for those who support the law to point to in an attempt to blunt criticism of the impact of Article 13. Yet none of them can explain how this part of the law would work in practice, beyond some "nerd harder" mumbling about how the tech companies will have to "figure it out."