As the European Commission is rolling out its Digital Single Market strategy, rights holders are adamant that the issue of "transfer of value" be addressed and solved. Several representatives from rights holders organisation present at the Eurosonic/Noorderslag conference in Groningen, Netherlands (Jan 13-16) commented on the EC's action plan to improve the internal digital market and modernise EU copyright rule, stating that it was urgent for the Commission to address the market imbalance created by digital platforms that use the EU's safe harbour provisions to deny rights holders fair remuneration.
"In online environment, certain companies rely on laws created in 2000 which protect them from been liable for content on their platforms," explained Burak Ozgen, Senior Legal Advisor for Brussels-based European collecting societies groupment GESAC, speaking during a session titled 'Digital Single Market Strategy: Who Benefits?'. "These safe harbours regimes are claimed by the main platforms to not pay rights holders what they should pay."
Ozgen added that the issue of transfer of value, which he said was now "developing at EU level", is among three key issues on the table: cross-borders access, with the goal to create a free-flow digital market operating across EU borders; access to knowledge, with exemptions to copyright for usages such as education or by museums. Ozgen went on to say that while it is hard to negotiate fair deals with platforms because safe harbours distort the market. He said that SoundCloud, which has 100m users, is one of the beneficiaries of the safe harbour provisions. "The biggest platforms do not pay or little," he said, "so fixing this will have a positive impact for everyone and more competition in Europe."
Abusing safe habour provisions
GESAC President Christophe Depreter, also CEO of Belgian authors' rights society SABAM, said that collecting societies make deals with most operators of digital platforms such as Apple Music or Spotify, but they have issues with "a second category of users who say that they do not owe us anything because they are not at the source of the content on their platforms -- such as Facebook or YouTube. Why are they able to say they don't own us anything is because of the safe harbours provisions from the 2000 law."
Depreter said that most societies have deals with YouTube for professional usage of content, but that these platforms "refuse to make contracts for user generated content." He added, "YouTube is the first channel to make music public. YouTube should pay billions to rights holders and of course they don't. So we are now talking to the Commission and now the Commission said that there is an imbalance between rights holders and some categories of users." [Elsewhere at Eurosonic, a YouTube representative said that the platform had paid since its inception 10 years ago over three billion euros to rights holders.]
Depreter said that solving this issue was "a question of survival of the world of creators in Europe. Most of these companies are not European, so let's defend our culture." Zoltan Czutor, Elected Board Member of Hungarian society Artisjus added, "The goal for us is to collect fees for the use of copyright from ISPs. Need to collect the money from where the money is."
Hein ven der Ree, chief executive of Dutch society Buma-Stemra, said that platforms hiding behind safe harbour provisions create a market imbalance and platforms like Spotify, that are fully licensed, do not compete with a level playing field. He said, "I cannot explain why Spotify pays rights holders and FaceBook and SoundCloud pays nothing. There is discrepancy in the market and we need to legislate. FaceBook is a very serious business, and the day they will know that they need a license they will have one, and money will flow back to rights holders."
Create a competitive playing field
The notion of legislating safe harbours was picked by Jeroan Lenaers, a Dutch Member of the European Parliament. "I had never heard of safe harbours applied to copyright before I met with representatives from rights holders," he said. "They are neither safe nor harbours. So how are we going to regulate that? And if we have proper definitions, then you still need to enforce it."
Lenaers added that the Digital Single Market will "end the silos of 28 different interpretations of copyright law [throughout the European Union]. It will make it easier for artists, and [allow Europe to] be a global competitor to the United States."