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