Music, copyright, and the internet have a long and sordid past together, but the internet also has been greatly beneficial to independent artists. That's something which, indie musician Stephen Blythe and Techdirt's Mike Masnick both believe could come to fiery end, should Article 13 of the EU's new copyright legislation come become law.
"Independent musicians are at the mercy of a system which locks them out from negotiating their own contracts without major label backing, and they therefore have to rely on gatekeepers which provide an inadequate level of information and control over their own music."
Guest post by Mike Masnick of Techdirt
A decade ago, when there were still people laughably insisting that the internet was the worst thing that ever happened to musicians, I kept pointing out examples of artists who were creatively embracing the internet to great success -- connecting with fans, building new business models, and succeeding. And every time I did that, people would complain that this example was an "exception" or an "anomaly." And, they had a habit of qualifying any success story -- even if the qualifications were contradictory. For example, if I highlighted an independent artist's success, people would say "well, that's just a small independent artist, they have nothing to lose, no big rock star could ever succeed that way." And then, when I'd highlight a big rock star having success embracing the internet, I'd be told "well, it's easy for him, he already had a huge following." It got so silly that back in 2008 one of our commenters coined "Masnick's Law" to describe this phenomenon:
Masnick's Law states that in any conversation about musicians doing something different to achieve fame and/or fortune someone will inevitably attempt to make the argument that "it only worked for them because they are big/small and it will never work for someone who is the opposite," no matter how much evidence to the contrary might be readily available.
In 2009, getting fed up with this, I wrote a long article detailing examples of a whole bunch of success stories of artists embracing the internet mixing in ones who were hugely famous with ones who were moderately successful and ones who were small independents... and someone complained in an email that these were all exceptions.
Over the past few years, I thought this kind of "exception" thinking had mostly died out, but it showed up again recently. We posted famed science fiction author Ken MacLeod's excellent opinion piece arguing that, even though he's a big supporter of copyright and against anyone pirating his books, he's absolutely against the EU's plans for Article 11 and Article 13 in the EU Copyright Directive. The key line: "Far greater than my interest in copyright is my interest in a free and open internet – or, failing that, in keeping the internet as free and open as it is now."
And, in the comments... Masnick's Law reared its ugly head again:
Straw-man argument, since he has a big publisher to both pay him and defend his property rights. He's not an indie who markets his own work on the internet and has to fight mass piracy on his own. He doesn't need copyright protection when he has distribution sending his fans to pay for his work (while the same fans might pirate the indies).
He is the one who wants big publishers to continue to dominate and profit, while the indies want direct access to the public and the elimination of the middleman that is this man's meal ticket.
Of course, that's nonsense. That comment is based on the idea that you need to "fight" mass piracy, rather than looking for ways to build a successful business model that involves connecting with your true fans.
Indie Musician Stephen Blythe
And, of course, the impact on independent artists will be even more serious than those signed to big publishers/labels/studios/etc. Indeed, Ken's own Twitter feed pointed me to an independent musician in the UK, Stephen Blythe, who has written about why Article 13 will make life worse for him as an independent musician. After detailing his situation as a musician, he explains that if you want to get your music out there, so that you can build a fanbase, you need to get your music onto the "most popular music" sites. And to do that you have to use a special third party:
If an independent artist wants to get their music out there into the world, to the most popular music sharing sites, they need to use some kind of recognised distributor – as direct submissions are either impossible, or extremely restricted. A pile of these have sprung up, including Amuse, RouteNote, DistroKid, etc. Some charge a subscription fee per year, some take a cut of any revenue generated, and some of them don’t even have a website – operating just from an app. The concept is simple: You send your music to them, and they distribute it digitally to the various partners. One of these partners is YouTube.
But it turns out that those services, as part of their "value add" will "enforce copyright" for you:
What isn’t made clear by these distribution networks is that by submitting your music to YouTube, you essentially give the distributor a licence to enforce your copyright on the platform using the ContentID system. This automatically detects any music uploaded along with a YouTube video (including short clips), and flags it up as unauthorised. To many this might sound great. Stop people stealing your stuff!
The problem of course is that there is very often no way to denote authorised uses or channels with these common distribution services.
He then details two separate scenarios of artists being harmed by this kind of "enforcement" including one that happened directly to himself:
An artist (A) is asked by a fellow musician (B) if they would be interested in a collaboration. The process is simple: B will supply A with some vocal samples that A can then chop up and use however they wish. A gladly accepts, and comes up with a whole electronic composition that brings the vocals to life. B loves the track, and asks if they can use it on their upcoming DIY release. A agrees. B’s friend runs a small label who agrees to put out the album, and they use a distribution service which sends the album to all the major partners automatically – including YouTube’s ContentID system. A few years later, A is producing short video blogs and decides to use one of their old tracks as background music. It gets flagged up as a copyright violation automatically, which A disputes – but the appeal is rejected by the distributor, who has no knowledge of how the track came about in the first place.
He then explains that in a world where everything involves a massive ContentID-like filter, you create a terrible situation for independent musicians, who are at the mercy of much larger companies with no flexibility:
- Independent musicians are at the mercy of a system which locks them out from negotiating their own contracts without major label backing, and they therefore have to rely on gatekeepers which provide an inadequate level of information and control over their own music.
- Artists who are starting out lack the information required in order to make informed decisions about their interaction with such services, and can inadvertently give away their ability to exploit their creations commercially due to how the systems are constructed.
- The ContentID approach to copyright enforcement gives huge clout to the first entity to register a piece of work within their system – which is rarely going to be the artist themselves.
- This model has no room for the ad-hoc, informal, and varying ways in which independent musicians create and share their works online.
Or, in short:
The current ContentID system works on a first-come, first-served basis. It puts huge power in the hands of intermediary distribution services which do not provide a service that can ever give artists the amount of control over their licenses they would require to fully exploit their creations. The nature of the beast means that informal collaborations between like-minded folks can unexpectedly tie up their creative expression years down the road. Article 13 will only expand these systems, which will inevitably be less sophisticated on other platforms than ContentID. Independent artists lose the ability to share their work even further.
I'd argue it goes much further than that. First, the major record labels see everything stated in the paragraph above as a benefit of Article 13. Giving huge power to the middlemen gatekeepers puts them back in the position they were in year's ago, where they get to decide who gets distribution and who doesn't. That system created a world in which musicians had to hand over their copyright and nearly all of the revenue generated from their works in exchange for a pittance of an advance (which was really just a loan). So, putting more gatekeeper power back in their hands is the goal here.
Second, and even more concerning, is that Article 13 is premised on only the largest platforms being able to comply -- meaning that there will be less competition on the platform side and fewer and fewer places for independent artists to distribute their work, should they wish to do so. That gives them fewer options and less ability to build a fanbase, unless they get plucked out of obscurity by a giant gatekeeper (again, going back to the way things were a couple decades ago).
Now, I'm sure that someone will pop into the comments and point out that this example doesn't count because it's just a "small, independent artist," and that his concerns don't matter to "real" artists (meaning major label ones), but, haven't we played that game long enough?