Artistic Remuneration for Online Content

Thangam Debbonaire Excerpts

Wednesday 6th July 2016 Westminster Hall

[Thangam Debbonaire (Bristol West) (Lab)]

Thank you for allowing me to speak, Mr Gray. I also give grateful thanks to the hon. Member for Selby and Ainsty (Nigel Adams) for securing this important debate, which is both necessary and timely. It is all the more timely for us to be discussing this issue now, when the country has voted to leave the European Union, as so much of the regulatory framework is currently set by the EU. I would be interested to know the Minister’s thoughts about that.

First, I declare my interest as a former member of the Musicians’ Union, which donated £6,000 to my campaign during the general election. I also recently visited part of YouTube’s UK operation, and part of Google’s massive UK operation, as part of a parliamentary visit last week to the creative industries that was organised by the Industry and Parliament Trust and the Advertising Association. I can report that Google does a good sandwich lunch and presented me with a very nice notebook. I can also report that it was from a YouTube channel “The Oma Way” that I learnt to do continental knitting from a German grandmother. As a former musician myself, I am very pleased that so many music lovers enjoy the ability to listen to music from the internet. I am also married to a musician and am close friends with a composer and other musicians.

Most importantly, Bristol West and Bristol generally is a very creative city, as my hon. Friend the Member for Bristol East (Kerry McCarthy) said. Many people work in my constituency in the creative industries. Musicians, composers and music lovers in Bristol West deserve and want a fair system for online remuneration—one in which musicians have much more control. So do I: that is why I am here, and I will be reviewing a couple of technical aspects of this knotty problem.

The situation with artists’ remuneration online is very far from straightforward, although there are those who would like it to be seen as so. There are many stakeholders in the process, each of whom would like to be seen as innocent angels, because it is not only Google who aims not to be evil. However, there needs to be a balance of rights and responsibilities that is proportionate to the power held by each stakeholder. Google, as the world’s No. 1 search engine, and YouTube, the dominant player in online video, both have far more power in this process than the consumer or the musician. The recording industry also has more power than the newest indie band or individual composer.

Within that process, there are search engines, file downloading sites, the recording industry, musicians, technical professions and, of course, the music lover. We owe it to everyone in that process to have a system that is not only transparent and fair, but relevant for our times.

Right now it is vital that the entire sector and Parliament are aware of what the results of the UK exit from the European Union will mean for the industry. The copyright directive, for example, which harmonises—to use an appropriately musical term—copyright law across Europe, including the application of copyright and control techniques on the internet, restricts the range of defences to copyright infringement. We do not yet know whether that area of UK law, directly derived from the EU directive, will be one of the pieces of so-called “red tape” that those who have campaigned for us to leave the EU will want to sweep away. Before I move away from Brexit, I would add that that would be a disaster for the UK’s music industry. I would like to know what the Minister, who I know is a music lover, is going to do to protect the industry during the Brexit process.

It is not sufficient for the more powerful players to say, “We are just providing the platform,” or, “We are only running our algorithm to give search results to consumers.” If the less powerful players, such as the musicians or trade unions or the recording industry, can easily find examples of unlicensed products on a streaming platform or in the results of an online search, so too can the search engines and the companies owning the streaming platform. They are the ones who are most in control of how the music is consumed and the options for performers and the recording industry to receive their fair share of advertising or subscription income, and they must be required to play fairly.

YouTube, for example, reports proudly that

“the rights holder has total control over what happens to their content on YouTube”.

That is simply not how performers experience it. As YouTube hosts user-generated content, it is the users generating the content and, jointly, the platform itself that have the most control. If an artist or recording company wishes to get their content blocked or monetised, they first have to know that it is there and then they have to contact YouTube to ask for it to be taken down or monetised. They can, and do, do regular searches of their name on YouTube or other streaming platforms, but if they can, so can YouTube.

YouTube has indeed invested $60 million to build a fingerprinting technology called Content ID to allow rights holders to identify when their works are used in the user-generated content. That technology has helped to compare millions of media files and hours of video, but it is insufficient for the job and is still leaving the responsibility with the performer and the recording industry to take action once they discover that there is unlicensed product on the platform.

YouTube now represents such a large proportion of total music consumption. That is great, but as a consumer of YouTube, I want to know that every single piece of music consumption is providing proper remuneration for the artists who create it and for the recording industry that provides the means to record it. I do not have that certainty, despite being involved in and modestly knowledgeable about the music industry and being modestly well briefed. Despite the phenomenal growth in online streaming of music content, YouTube contributes only about 4% of total music revenues—less than that contributed by vinyl, as my hon. Friend said.

YouTube makes use of a safe harbour provision in copyright law, as has been said, which allows it immunity from copyright liability providing it responds to takedown notices. However, that still places the responsibility away from the company itself and is therefore insufficient. I would like to see host companies such as YouTube and others take full responsibility without being able to hide behind the safe harbour provision, which was created 15 or so years ago, without any idea of how widespread music content uploading would become. I would also like them to move from a system of “notice to take down” to one of “notice to take and stay down”. Otherwise, the music industry continually has to play whack-a-mole, as new user-generated music content is uploaded.

Google is the world’s most used search engine. That presents another challenge: for Google to take responsibility for the results of its search engine, which routinely directs consumers to links to unlicensed sites. The British Phonographic Industry has sent more than 200 million notices to Google requesting it to remove illegal links to their members’ music. Again, that still places responsibility on the industry. Rights holders can supply machine- readable lists of sites that have been licensed to offer their content, so search engines could use those as a factor in their algorithms to improve the search visibility of sources of legal content. So far they do not. As my hon. Friend mentioned, the BPI can show how routinely search inquiries are returning links to illegal sites, on the first page, at the top. This matters: it is simply helping people—nay, positively directing them—to sites where performers’ music is stolen from them without proper payment.

Google employs very smart people, as I saw last week on my visit. I simply do not believe they are incapable of reforming their search engine algorithm. We would not tolerate a billboard that directed people to buy music from a shop that was using only stolen CDs, nor would we tolerate a radio station or TV company advertising such a shop. The time has come to require search engines to act responsibly, and I would be grateful if the Minister responded to that request.

As has been mentioned, the Musicians’ Union and the BPI both acknowledge that the development of online streaming has been a phenomenal success. For music lovers, it gives them access to an enormous catalogue of music. That is fantastic, but it is arguable that online streaming is equivalent to listening to the radio. Consumers do not possess that music and they know it. They cannot listen to it offline and the experience is more like a broadcast with curated playlists than iTunes or any of the download services. That suggests that the system of royalties for internet streaming should be closer to that for radio. I therefore support what my hon. Friend said about an equitable split of income—I think she may have said a 50:50 split—between musicians and the recording industry for online streaming, as well as an adequate “take and stay down” notice system for the online industry.

The equitable remuneration right was introduced in 1996 and ensures that performers enjoy royalty payments from the very first radio airplay of their recordings. Such a system also needs to exist for streaming. I believe it is both vital and possible to create a system whereby nobody in the process, from consumer to website owner, can hide behind the defence of “I did not know”, “I don’t believe the illegal sites are treating artists unfairly”, or “It’s not my problem: the way the artists are remunerated is up to the recording industry and nothing to do with us, the online industry”.

To sum up, I would like to know whether the Minister supports any or all of the following or whether he will consider them: a move from “notice and take down” to “notice and stay down” for notifying streaming services about unlicensed content; a shift in responsibility from the music industry to spot and notify search/streaming services to the services themselves, so that they take responsibility for what user-generated content is uploaded; a requirement for internet search engines to amend their algorithms to direct consumers to legal sites, not illegal sites, and also to co-operate fully with the music industry on this; and moving the licensing system to remunerate artists and composers fairly with the recording industry for online streaming, given that it is akin to radio in the user experience.

Reforming the licensing laws in any case for offline and online use and consumption may be a good idea, given that they are often seen as not simple to navigate and not transparent. I would be interested to hear the Minister’s thoughts on that point. Finally, we need to see that the music industry is protected throughout the process of leaving the European Union. The music industry deserves better than the situation we have at the moment for artists’ remuneration. Musicians deserve better; composers deserve better; above all, music lovers deserve better.

--- Later in debate ---

[Pete Wishart]

The hon. Lady is right. Making records and producing albums seems to be a loss leader for all the other activity that musicians are now expected and ordered to do to try to ensure that they are able to make a living from music. She has seen the figures from the Musicians’ Union that suggest just how depressed is the average musician’s income. I cannot remember the figure, but I am sure she knows better than I do that it is significantly low. That is a real issue for so many struggling artists. I am an unrecouped artist. I sold about 1 million records, but I have never received a penny for any of the records I sold when I was signed to a major record label. There was an expectation that we would make money from all this other activity. I concede that we did relatively well, but we did not do well from record sales. There is something incredibly wrong with the marketplace.

Streaming might be an opportunity for us to consider how we properly reward musicians for the works they produce. I am attracted to the 50:50 concept of the Musicians’ Union. Let us work towards recouping the investment that rights holders and record companies make in the artists, but let the artists start to earn a little from streaming services. Artists earn an absolute pittance from streaming services, and we should at least allow them to make that pittance a little more substantial.

[Thangam Debbonaire]

The hon. Gentleman is making some excellent points. Does he agree that the online industry’s domination of the income—it is keeping so much of the income and allowing the artists so very little—is equivalent to the person driving the van full of CDs having most of the income and the artists having very little? The online platforms are the vehicle. They are the last bit of the process between creation and consumption. Does he agree that it would be better if we tipped the balance back towards the creators, without whom the industry as a whole would be nothing? We need creative people and the creative industries that support them in getting their output recorded.

[Pete Wishart]

There is very little on which I would disagree with the hon. Lady. We must restructure that relationship, but I caution her and others. The music industry in this country has a successful business model, and we are world leaders. We produce the artists and ensure that they are supported. I have nothing against record labels and the music industry investing in that talent and bringing it on in the usual paternalistic way. That is what happened when I was a recording artist, and the model is still successful. Rights holders should be properly rewarded for their investment in artists.

That brings me to my next point, which is probably the most substantial point in all this. Several Members today have raised the issue of safe harbour, which we have to tackle; of all the things that the Minister takes away from today’s debate, I hope that it will be that one. Safe harbour is a useful innovation, because it has encouraged a number of people who were tempted by piracy and illegal sites to come across to a legal framework where they are able to access some of the content.

The music industry’s suggestion of distinguishing between active and passive safe harbours is a useful one. We all know what a passive safe harbour looks like: that is where people find a store of music, access it and do all the usual things. But when it comes to the manipulation of that music and to designing things in a particular way to try to create some sort of income for it, we get into the realm of an active safe harbour. At that point, royalties should be paid, to ensure that something comes back to rights holders and artists. I very much support copyright being extended to what could be considered as active safe harbours.

I am also attracted to the idea that streaming sites should be treated pretty much as a radio player—we heard about that from the hon. Members for Bristol East (Kerry McCarthy) and for Bristol West (Thangam Debbonaire), and it is a feature that we should be looking at. When I access Spotify, for example, I mainly use the radio services. I still do not see a distinction between listening to the radio in the morning and listening to the radio service on Spotify—I think they should be treated the same.

I am conscious of time and am obviously very keen to hear from the Minister, but I have a couple of things to say about where we find ourselves after the decision we made a couple of weeks ago about the European Union. The fact that we will not have access to the European Union is an absolute and unmitigated disaster for the musicians of this country. We will now be excluded from most of the debates about the digital single market, which is one of the biggest innovations in the placing of content online that we have ever seen in any part of the world. We have now taken ourselves out of that conversation about the structuring of the digital single market. That is a disaster for musicians in this country. I am not going to mince my words about this.

Another issue related to remuneration for artists that we will have to consider carefully is free movement of people in the music sector. One of the great innovations in the music industry in London is that we can draw in so many creative people who have so much to offer our industry—