There has been a recent trend of seemingly well-intentioned musicians taking to Twitter to engage with critics of the seriously flawed Copyright Directive, and in particular Article 13. Whatever the content of their arguments, it almost inevitably boils down to some kind of accusation that whoever disagrees with them is ‘just an academic’, a ‘big tech apologist’, or someone that doesn’t understand or appreciate what it’s like to be an independent musician.
I’ve been on the receiving end of these kind of claims, to the point that engaging any further became fruitless. Simply by dint of my position as a legal academic/employee of a tech company, the claim is that I must have an inherent bias that clouds my ability to critically analyse how copyright law will impact artists, because I am not a musician.
The thing is, I am a musician, and have been for almost 20 years. I sing and play guitar in a grunge band called Closet Organ, who successfully crowdfunded our last album, which included a vinyl LP release. I make chip-music and have played live as unexpected bowtie in places as far flung as London and Osaka. There’s also the innumerable other projects including the ‘bizarre and disturbing’ electronica of cup fungus, the scuzzy pop of Hog Wild, and the chilled out samplewave of ease and desist. I’ve personally put on a pile of gigs, been on tour as a music photographer more than a few times, was Review Editor of a fairly significant indie zine, and currently run my own underground tape label Cow Tongue Taco Records. I loved and played music long before I ever took a law class, or was employed by… well, anybody.
Safe to say, I have some investment in independent music.
Why ContentID doesn’t work for independent artists
For those not familiar with Article 13 of the proposed EU Copyright Directive, the long and short is that it will effectively require service providers such as Facebook to implement content filtering systems to detect and remove/prevent the upload of material that belongs to another party. YouTube already has a similar system in place – by far the largest and most complicated of its kind in the world – but the Directive would massively extend its reach.
There are numerous and detailed criticisms of Article 13, but all of them seem to fall on deaf ears as they come from the perceived position of a ‘corporate shill’, so here I want to briefly outline just one major issue that independent artists experience with the current ContentID system – and why any kind of expansion will inevitably be damaging rather than of benefit.
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.
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. Let’s consider the following two scenarios:
Scenario A: a young singer songwriter starts to build up a decent following online, by sharing clips on SoundCloud and YouTube. With the money they’ve made from the ads on their DIY videos, they put together a full-length album and use one of the most popular distribution services to make it available on Spotify, Apple Music, Amazon, YouTube etc. As they get more and more well known, they dig deep and fund a really flashy music video to promote the album. After teasing it on Facebook and Twitter, they upload it only to find that it has immediately been flagged for a copyright violation – on behalf of the distributor. The video won’t necessarily come down, but it does mean that they won’t be able to monetise it – and will lose out on the ad revenue they were expecting to recoup the cost of the production. Panicked, they dispute the claim using YouTube’s resolution procedure, but there’s no indication of how long that might take, and it has thrown off all of the promotions they were planning. There’s no explanation of this anywhere in the distributor’s app that they used, and they can’t get a hold of anybody who understands the issue and has access to release the video for commercial use.
Scenario B: 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.
Both of these scenarios are common, and a version of B actually happened to me personally. There are plenty of other similar situations, which are easily discoverable with a bit of Googling.
There are a few takeaways here:
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.
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.
So… as an academic, a tech employee, but perhaps most importantly a musician: Article 13 is a disastrous piece of law, and should be scrapped.
I’ll be voting for the UK to remain part of the European in the imminent referendum.
It’s no secret that I am a staunch advocate for Scottish independence, and despite being entirely separate issues, the two are often conflated – and it isn’t immediately clear how to the two positions can be naturally compatible. This is something that few people have addressed directly, so I’m going to do so – explaining my reasons for voting ‘Remain’, with additional reference to my pro Scottish independence stance.
Before getting into the weeds, a few important things to note:
The arguments made will relate only to the current British constitutional setup. In other words, they apply to the question at hand: whether the UK should vote to Remain in the EU. If the question was solely about the membership of an independent Scotland, then things may be different. Maybe not, but that’s not something that I’m going to address in any detail.
This is about the UK’s membership of the European Union, and has nothing to do (at least directly) with the European Convention on Human Rights, Strasbourg, or the Human Rights Act.
Reason 1: British Sovereignty
As the Leave campaign have stated, this whole debate is really about sovereignty. In other words, who holds the final say over what laws are enacted in the UK. Sadly, this is one of the most complicated parts of the issue, and also one of the most grossly over-simplified.
Those championing the Leave cause feel that increasingly the UK is subject to a barrage of new laws from Brussels which require the UK to either adopt legislation that we do not want, or prevent us from enacting the laws that we do want – and that we have to end our membership of the European Union to prevent this.
One of the key concepts underpinning much of the discussion around this issue is Dicey’s Doctrine of Parliamentary Sovereignty. Fundamentally, this is the political theory that nothing can bind the British Parliament, including Parliament itself. Practically, this is why a Labour government is not able to create laws that a later Tory government couldn’t overturn.
On the face of it, this seems like an eminently sensible thing. Parliament is a manifestation of the expressed will of the British people, and given that, they should be the only ones who hold the ultimate decision making power. This is tough to argue with in the abstract (and the academic in me resonates with such a clear principle), but it is clearly not the full story. Much in the same way that social contract theories are fascinating on their own, but have scant relation to the real world, parliamentary sovereignty does not exist in a vacuum, devoid of all other practical realities. The romantic notion of British sovereignty relies on a myopic view of the UK as the only, or most important nation in the world – one that would have made a lot more sense in the 17th Century when Dicey was kicking about than it does now.
Just as we have complete control as individuals over our actions, we do not exist in isolation, with an unfettered ability to do whatever we want, whenever we want – at least not without consequences. We retain our personal sovereignty whilst also making decisions based on influence as pressure from a variety of outside actors such as friends, family, our communities, and the law.
Currently, the British Parliament is perfectly able to comply with parts of European law that it doesn’t like, but there would of course be consequences for doing so. It may not fit Dicey’s idea of Parliamentary Sovereignty, but it doesn’t mean that British sovereignty itself is impinged. Instead, it is simply part of the reality of living in a world where you are not the only one in existence. What those talking about British sovereignty are really arguing for is the ability to remove themselves from consequences – and that’s a completely different thing entirely.
One final point to consider is that even if we do leave the EU, our other ties to the union mean that it would be impossible to avoid their influence entirely. Even if we succeed in clawing back our hallowed core of British Parliamentary sovereignty, we will be bound by other trade obligations necessary to ensure the stability of our economy. One only needs to look at Norway to see this in practice: forced for practical reasons to accept many of the European regulations, whilst having no power to influence them.
To me, this all feels akin to a stroppy teenager moving out of their parent’s house to escape rules that they perceive as unfair, only to discover that they still can’t play their music at 2am. They may finally have their sovereignty in theory, but remain unable to exercise it in the manner they want to.
How does that work with Scottish independence?
Unsurprisingly enough, as a supporter of Scottish independence, I don’t have much sympathy for arguments that are based on a notion of British sovereignty. The concept itself seems completely alien, and I don’t believe that the British Parliament is a genuine expression of the British people in Westminster; only an expression of the majority of England. For this reason, it should be immediately clear why Yes voters would struggle to get onboard with an argument rooted in that premise.
Additionally, when we look at the debate through the lens of sovereignty, it helps explain why the question of Scottish independence is completely separate from EU membership. Whilst the European Union is a political union of sovereign nation states, there is no sovereignty for Scotland as part of the United Kingdom.
Reason 2: Curtailing the excesses of individual governments
The primary driving force for the formation of the European Union was to prevent the possibility of another Nazi Germany ever taking place again on the continent, by binding the constituent countries closer together.
One of the main reasons I support the UK continuing membership of the EU is to ensure that people are protected from the excesses of any single government. This is something that applies equally to our own, and to those of other Member States. I fundamentally disagree with the premise that national governments should hold absolute power over their citizens, and the only solution to that is to be part of a supra-national community that holds its members to account on the basis of shared values – without stripping them of their ultimate sovereignty.
In situations where extreme governments come to power, the EU acts as a great balancing force, pulling all members towards the political centre. This is not a perfect solution, but acts as an effective buffer against the historical fluctuations of the domestic politics of individual countries – whilst also leaving enough room for voters to take different ideological positions.
How does that work with Scottish independence?
From the perspective of a supporter of Scottish independence, I already feel as if we are subject to the undesirable ideological position of a Westminster government that we (definitively) did not vote for. This situation doesn’t appear likely to change anytime soon, and so the EU is one of the few things that helps curtail the worst excesses of that.
Should it be the case that Scotland was a sovereign nation in its own right, I would still hold the position that we would need to be a member of a supra-national political union that would prevent against the excesses of our own government – and to help ensure that the citizens of other Member States were equally protected.
Reason 3: Free Movement of Persons
An important pillar of the EU is what is known as the the free movement of persons, but which is actually the free movement of workers. The distinction is important, as contrary to popular belief you cannot immediately go to another European country and start getting benefits. In other words, you can go and stay in Italy if you want, but you need to be pursuing an economic activity, not just living off the Italian welfare system whilst lying on a beach drinking Aperol Spritz.
After the attacks in Brussels, some took them as a reason to attack this core concept of EU membership. This was on the basis that the lack of internal borders between European countries allowed the attackers to enter into Belgium undetected, from weak external border checkpoints in places like Greece. This is undeniably a huge issue to tackle, but it should have no bearing on the debate over British membership of the European Union. Whilst the rights enjoyed by European citizens apply to those in all Member States, the single external border is separate. Known as the ‘Schengen Area’, neither the UK or Ireland are signatories to the agreement. This has led some people to state that if we leave the EU, nothing will change in terms of how we travel to countries within the EU, which simply isn’t true. Whilst it is correct that there’s unlikely to be much disruption to people going on their holidays, there are a host of rights that we enjoy as European citizens that have nothing to do with Schengen – including the right to live and work in another EU country. Rights that will be lost if we leave.
This particular point is one that genuinely perplexes me, as it isn’t just about those who have chosen to make the UK their home; it’s about the millions of British people who have exercised their Treaty rights to live abroad – including many of my own friends and family. There hasn’t been even the scantest of attempt to answer questions about what will happen to them in the event of a ‘Leave’ vote, and I think it’s a detestable way to treat people: leaving their futures hanging in limbo on the basis of a Tory party argument over British sovereignty. If anybody wants to explain how both the UK and remaining EU Member States would deal with such a huge issue – both legally and practically – please do speak up. So far the response has been nothing but a deafening silence.
To be blunt, I do not believe that immigration is a genuine problem – at least not with regards to immigration from the European Union. I believe that British emigrants enrich the cultures they move to, just as immigrants to the UK greatly enrich our own culture. We are not ‘running out of room’, or being ‘over-run’, and it is hugely ironic to hear those on welfare complaining about how ‘we will have to pay for all these fuckers coming over’. Oh, will ye, aye?
To finish, here’s a specific example of why I don’t trust the government on this issue. The Tories routinely wheel out rhetoric about how British people should come first, and that EU citizens shouldn’t have the same rights that we enjoy when they come to the UK, but this is diametrically opposed to the laws which they themselves have brought in. The simple fact is, that as a British citizen married to a non-EU partner, I have less rights than a European citizen with a non-EU partner moving to the UK. I’ve written about this in the past, but the sheer bare faced hypocrisy of Westminster on this means that I will never believe any of their hollow proclamations about protecting British interests when it comes to the freedom of movement of persons. They are the ones who have systematically eroded them, and only the EU allows some protection.
The mark of a government that truly believes its citizens should come first isn’t one that gives them less rights than the people they don’t want in the country.
How does that work with Scottish independence?
My wife and I have been treated with such contempt by the British government simply in our attempts to be together, and the law is so deliberately contradictory and unclear that it has only reinforced my desire for Scottish independence. The lack of concern for our right to family life, and the implementation of some of the harshest possible requirements on me as a British citizen to be with my wife simply solidify my desire to be disassociated from that status. As far as I am concerned, Scottish independence is the only way to escape the hypocritical immigration laws imposed by the Westminster government that are biased towards their own citizens, and that are only buffered by European freedom of movement.
Reason 4: Trade
One of the arguments from the Leave campaign is that due to the importance of the UK market, EU Member States would never stop trading with the UK, irrespective of our own membership status. As one UKIP MP stated: ‘The French aren’t going to stop us buying their wine.’. Of course, they are correct on that point, but what many fail to either understand, or choose to ignore, is that whilst we will still be able to trade with the European Union, we will do so at a huge automatic disadvantage due to the nature of EU law.
As well as the free movement of workers, another pillar of the European Union is the free movement of goods. What this means in practice is that (generally) anything made or sold in one Member State has to be accepted without discrimination. In other words, Germany can’t stop blackcurrant liquers from being imported from France for not being alcoholic enough (yep, really). To bring it home a little, EU law prevents any other Member State from adding additional taxes, fees, regulations, or any other restrictions on British products when they are brought into the country. Leaving the EU would mean that those protections would no longer apply, and British manufacturers – from the biggest to the smallest – would find themselves priced out of many important markets.
It appears that the hope is that in the event of leaving the EU, the UK would then negotiate a trade deal which would give us the same sort of protections that we currently receive. This is based on the naive view that Britain is such a vastly important market that other countries couldn’t possibly give up the chance to do business with us. The reality is that many Member States of the EU already view the UK (rightly, for many reasons) as having an inflated sense of entitlement. It is simply not plausible that we will be handed all sorts of benefits without the obligations and responsibilities of membership – not to mention unjust.
How does that work with Scottish independence?
There isn’t much in this section that is all that directly relevant to the independence discussion. One thing that I do find curious though is the number of people who voted ‘No’ to Scottish independence on the basis that there was no sound economic plan presented, that are suddenly perfectly happy to leave the European Union when the economic justification is equally – if not more uncertain. A lack of certainty in of itself isn’t really an issue for me, as there will always be unknowns during times of political change, but to use that as a justification in one debate and then have no trouble with it in another suggests that it was never really the real problem in the first place.
There we have it. I’m no EU apologist. From the abject failure to help the Greek people in their time of need, to the introduction of ludicrous laws such as those dealing with website cookies, there is much to be desired from the union in future. That said, there are also many positives. You might not agree with my own personal reasons for staying in, but hopefully at least consider them. The polarised, disingenuous, and often xenophobic nature of the debate has been deeply troubling, and I desperately hope that whatever way the referendum goes, that rhetoric doesn’t point towards what the future of the UK, and wider continent is going to look like.
At the end of the day, intellectually and academically I could come down on either side of the fence – far more than I ever could on the issue of Scottish independence anyway. The reasons that people will choose to either vote or remain will both be ideological, and deeply personal. These are my reasons for staying.
There was a powerful image on the news last night. A woman that looked to be at least 80 years old was seen in the middle of rioting in Athens, pulling a Greek flag away from a young man who was trying to set it on fire – his face covered with a gas mask.
The symbolism is poignant, as it so often is in Greece.
Only a week ago the Greek people were celebrating a victory, as they voted to reject stringent austerity requirements being imposed by the dark and powerful forces in Europe. For so long they have had their domestic policies dictated from Berlin via Brussels, and I can only imagine what it must have felt like to be in Syntagma Square when the results came, to feel like some sort of sovereignty was restored to the people at last.
Last night, the Greek Parliament were forced by those same European forces to implement emergency legislation to adopt even stricter measures than the people rejected in the referendum. Syriza did all that they could by calling the bluff of their creditors with the vote. In the end, they played the best hand they could and lost. There was nowhere else to go: accept the terms or leave the Eurozone.
The last few months of 2014 saw trouble on an almost daily basis in Athens. Annual protests that had seen dwindling turn-outs for years suddenly swelled with those taking to the streets to demand an end to the weak leadership of their Government in the face of increasing demands from the Troika.
The one last bit of hope that those involved seemed to be clinging to was the December election, and the potential for the anti-austerity party Syriza, who marched alongside them, to change the way the game was being played. No more taking things lying down. Seemingly against all odds, they got into power. For the first time in years, the riot police were called off, and the protests turned to demonstrations of support for the new government.
There was hope, but it didn’t last for long.
The scenes of last year will be nothing compared to what happens now that even Tsipras, with all of his abilities has been forced to concede defeat. The truth is that no matter how hard or how well he fought, he just didn’t have anywhere near enough bargaining power to win. Without an incredibly damaging exit from the Eurozone, Greece will be forced to do whatever those holding the purse strings demand.
I fear for what will happen now.
There are plenty who say that the Greeks got themselves into this mess, through early retirement ages and high rates of tax evasion. They shouldn’t just be able to shirk their responsibilities, or ‘have their cake and eat it’.
Corruption has been rife in Greece for decades. Nepotism is the norm. However, in many senses it isn’t hard to see why. The British and Americans helped open the doors for a military dictatorship in the country to avoid Communist influence, and Greece shoulders a hugely disproportionate burden in the number of refugees that it receives as the first port of call into the EU. Historically, ideologically, and geographically, they are caught in the middle, with no support from what are meant to be their allies.
Whatever the history is, the present reality is that the rate of child poverty is above 40%. The rate of youth unemployment 50%. Those who do have jobs have been forced to take huge pay cuts, or even to work for free from months to years simply because there’s no other option. The infamous pensions that have been so criticised have been reduced to almost nothing, with it impossible for those who have previously retired to find new jobs. Greeks work longer hours, and own more of their own businesses than a large number of other countries around the world. The generalisations about them being lazy or greedy simply do not play out.
The idea that somehow the Greek people are themselves solely to blame for this crisis, and that they deserve what has happened is an appalling and reprehensible one. People should not be forced to suffer terribly and indefinitely because of the corrupt actions of their previous Governments – those of whom still live comfortably with the proceeds of past malfeasance.
Even if the fault of what has happened really does lie with the average Greek (which it does not) then there must be a way open for the country to get out of the situation they are in. People must be able to build themselves out of poverty, and sometimes that requires acts of compassion and humanity – not cold blooded market capitalism. This is not happening however, and despite even the IMF declaring that repayment of the debt is impossible without some form of relief, the demands just become greater, all the while earning billions in profit for the ECB.
History repeats itself, albeit in different ways. When African nations struggled to pay back impossible debts built up by corrupt dictators, we marched in the street to ‘make poverty history’. When Germany was faced with rebuilding a broken nation after defeat in the Second World War, creditors (including Greece) wrote off a significant portion of their debt so they could do so. Now, the Greeks are facing an impossible task, and nobody seems to care.
A few years ago, I proposed to a blue eyed, blonde haired American girl named Grace. She lived in Denver, Colorado, and I in Glasgow, Scotland. I told her I knew it would be rough, but I was prepared to do whatever we had to so we could be together. We agreed that we would pursue the legal path of least resistance – which was for her to move to the UK. This was partly down to the minimum income requirements imposed by our respective Governments (I had a higher paying job at the time), but also to do with having more experience of the British legal system.
Despite being the lesser of two evils, the process itself was hellish.
There were endless contradictions, blatant flaws, and convoluted evidential requirements. Just when it seemed like we had gotten over one obstacle, another illogical one would present itself. Often, I would literally be ripping my hair out in sheer exasperation at the injustice of the whole thing. How could they get away with this? It seemed clear that the problems were there by design rather than incompetence. Every part of my being wanted to scream from the rooftops to tell people about what was really going on; to publicly question why – despite all of the rhetoric from the UK Government about wanting immigrants who add value to our society – my future wife was banned not only from working, but from volunteering.
I didn’t. To this day I am still wary of openly criticising the policies on immigration too heavily, as we are locked into the process for years to come. The decisions that we would be calling into question would be made by the very same people and organisations that could deny any of our future applications on a whim.
With just days before the people of Scotland decide to vote on independence, it’s important that I make this clear: The UK’s immigration policy is fundamentally racist, with the system deliberately left broken. As a result, British citizens have less rights in their own country than those from elsewhere in the EU.
Actual paperwork aside, here’s a specific example:
* Grace requires a specific residence visa to live in the UK. To avoid waiting weeks for a decision, we have to go to a dedicated UKVI (formerly the UKBA) office. As there is only one office in Scotland (with limited hours), this meant travelling to Liverpool to get an appointment. The cost for this privilege (which has to be renewed every couple of years) is around £1000.
* Each time Grace arrives in the UK, she has no automatic right of entry. She must present her passport and residence card, along with a completed landing form. Providing that entry is granted at the border, her passport is stamped with the entry date, and her fingerprints taken.
* If a German citizen came to the UK, they would have the right of residence under the European Union’s regulations on freedom of movement.
* The German citizen’s partner would automatically have the right of entry to the UK, as long as they were either travelling with them at the time, or coming to join them in the country. Their passport would not ordinarily be stamped, and they would not require any visa or residence permit, as they were there by virtue of the German citizen’s Treaty rights.
The UK cannot impose restrictions on the freedom of movement of citizens of the EU or their families (allowing for the relevant definitions in question), but they are able to impose whatever restrictions they like on their own people. This is because it is not counted as discrimination against the citizens of another member state.
In short, this means that because of Westminster immigration policy, I (as a British person) have less rights than somebody from anywhere else in the European Union.
In order to gain the same protection as other European citizens, I would first need to move to a different country within the EU, stay for three months (in the ‘pursuit of an economic activity’ – working, basically), and then return to the UK with Grace. This is a complicated route, and one established by the case of Surinder Singh.
So why does this ridiculous situation exist? Simple. The ideological pursuit of the Tory government. Hey, Better Together, right?
But hey, want to bring your dog with you from the USA? Not a problem.