The Lost Art of Negotiation: Part I – The Case of YouTube Cover Songs

2770
Lost Art Copyright

lostartcpyrght

By Katie McCort of Rock Edition

Last month, Representatives Judy Chu (D—CA) and Tom Marino (R—PA) published an op-ed on the current state of the Digital Millennium Copyright Act (DMCA) and the inability of section 512’s “notice and takedown” policy to evoke innovation and protect authors’ rights. Chu and Marino suggested that “”takedown” should mean “stay down,”” alluding to the popular initiative among industry players, lawyers, and politicians to revise the DMCA in order to keep up-to-date with advances in technology and the internet. While some have argued that Chu and Marino’s proposal is only another way to start-up the less-than-popular Stop Online Piracy Act (SOPA), the nearly epidemic illegal use of copyrighted material on internet service sites such as YouTube, Vimeo and Dailymotion calls for immediate revision to current copyright laws.

The Current State of Internet Copyright: Cover Songs and Content ID

According to Les Scott, owner of Source Q Boutique, an independent publishing company which provides music for film and television for a repertoire of over 350 artists and writers, “80% of what is on YouTube right now is infringement.” This figure encapsulates anything from fan mash-ups of your favorite songs to your high school graduation montage that is most likely synced to Green Day’s “Time of Your Life.” Most prominently, this figure also envelops the famous cover song which varies from viral, professionally produced renditions of the latest Top 40 hits by relatively unknown aspiring pop stars to your 7-year-old cousin singing a cute, yet slightly off-key performance of the newest Katy Perry track on your laptop’s mediocre webcam. In both cases, if the uploaders of these covers did not obtain proper permission from the copyright holder, then the upload is infringing the songwriter’s copyright.

To combat this, YouTube has introduced Content ID; an online database running in conjunction with over 2,000 players in the entertainment industry including publishers and record labels. Content ID seeks to identify copyrighted content in order to remove the content under section 512 of the DMCA or monetize the video via revenue from advertisements.

How does this work?

Scott explains that Content ID operates through several forms of detection systems including the detection method known as “fingerprinting.” He identifies that the “fingerprint” detection method “compares the actual audio file against YouTube’s database for the purpose of finding a match. This detection method is known as “fingerprint” because it looks at the actual wave form to find matches.”

Despite YouTube’s efforts to control copyright infringement, Scott further notes that YouTube’s Content ID system is far from perfect. In the case of “fingerprinting” he explains that, “’fingerprint’ is still unreliable and creates havoc throughout the industry by its false readings, thereby creating a glut of errant “take-down” notices.” This is an issue because the take-down notices continue to clog up the system and make it harder for YouTube to address the concerns of copyright holders.

Fingerprinting is not the only issue with YouTube’s Content ID system. Another concern is the system’s extreme bias towards major players in the industry which tends to leave independent copyright holders unprotected against copyright violations. For example, Grammy award winning songwriter Maria Schneider testified at the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet’s hearing on the DMCA last month that “my livelihood is being threatened by illegal distribution of my work that I cannot rein in.” As an independent musician, it is difficult for YouTube’s current policies to help Schneider without the aid of “The Big Four.” Even with the help of major record labels, over 10,000 covers are uploaded to YouTube every 24 hours.  Depending on the Content ID system to control copyright infringement leaves copyright holders wasting hours of their time combating illegal uses of their material.

Furthermore, the efforts of Content ID to protect authors’ rights is convoluted by the public’s lack of education on copyright law and licensing. Most YouTube users are not aware that posting videos of themselves singing along to somebody else’s track is, indeed, infringement. As Scott affirms, due to the current way YouTube operates, “a person starts by infringing.” He attests that “that’s not a good premise to start from! It’s good to start with permission.”

 

Obtaining Permission from Copyright Holders

Convincing an entire generation of internet users who have come to think of music as free to use and download at their will that they should obtain permission that could take months to retrieve for a cover song that took them minutes to record is no easy task. To make matters worse, the process YouTube users must go through to legally upload their video to YouTube is not the same process professional and amateur artists go through to publish a song on a phonorecord. As intellectual property attorney Jay Cooper confirms, “audiovisual is not covered by a mechanical license. Mechanical licenses are only used for the reproduction of a song on a phonorecord.” This means that even when some YouTube uploads declare themselves as “audio only,” permission from the upload cannot be obtained via the current statutory rate of 9.1 cents per copy of the song produced since it is still syncing an audio (the user’s cover) with a visual (any image, whether it be still or moving). Therefore, to legally upload a cover song to YouTube the user needs a synchronization license.

Synchronization licenses (or sync licenses) cannot be distributed through a third party such as the Harry Fox Agency, the go-to distributor of mechanical license fees for music copyright holders. Instead, voluntary negotiations must take place directly between the copyright holder and the individual seeking to use that work for a license to be obtained. Why must you go through often lengthy negotiations with copyright holders to upload yet another amateur rendition of Frozen’s “Let it Go?” Les Scott explains that “[copyright holders] have the exclusive right to make derivatives. So if somebody is putting together another piece of art with copyrighted art, that’s creating a derivative. The only person who has the right to say yes or no to such request is the author.”

Of course, given the complexities of the digital age, there are more answers than a simple yes or a no when obtaining a synchronization license. In the case of YouTube cover songs, Scott further explains that the copyright holders could give any request for a sync license a few of the following options:

1.) The user is granted the right to post their video on YouTube with a gratis license

2.) The user is granted the right to post their video on YouTube, however the publisher reserves the right to track the video

3.) The user is granted the right to post their video on YouTube, however the publisher reserves the right to monetize the video and collect ad revenue

4.) The publisher can negotiate a license fee and require the user to pay a fee in order to use the composition on YouTube

5.) The user has no right to upload the video and if the video is illegally uploaded it will be removed

 

In sum, any video uploaded to YouTube that includes another artist’s song synced with a visual is considered an illegal upload if prior permission has not been obtained directly from the author and/or the requirements for the publication of the video onto YouTube are not met. Failing to do so infringes an author’s rights to his or her own material and compromises his or her’s authority on the use of the work. Critics of synchronization licenses often point out how this type of system cannot efficiently be mandated for the public, especially considering that most of the cover songs on YouTube are not-for-profit. However, even uploads that are not-for-profit can still be detrimental to the legitimacy of an author’s exclusive rights.

The Legality of Non-Commercial Cover Songs

 It is generally uncontested that for-profit works should obtain the proper permission from the copyright holder before distributing sound recordings of a professional cover or uploading their latest music video to the internet. However, the same consensus is not upheld for not-for-profit works. The debacle is that non-commercial cover songs are arguably an outlet for creativity and the creation of new emerging artists for the future music market. Up-and-coming and established artists including Avery, Boyce Avenue, Austin Mahone, and Justin Bieber all found their claim-to-fame through cover songs uploaded to YouTube. However, these cover songs come at costs to the original artists.
According to Scott, “if you need a sync license, you need a sync license and you need to pay that.” Making exceptions for “non-commercial” covers has the potential to limit the volatile rights that publishers and artists still have over their material. For example, all non-commercial covers are potentially a valued replacement for the original. In other words, a cover which is uploaded for non-profit reasons could inadvertently infringe on the exclusive copyright of the original to reap financial benefits. Additionally, allowing non-commercial cover songs to be uploaded without permission demotes the ability of the copyright holder to say yes or no to the use of the material. Essentially, this places free social benefits of the song above the rights of the copyright holder. As Scott identifies, “music isn’t free. This is very costly to do…the only thing [copyright holders] have left to uphold and maintain the value of art on behalf of the creator is the fact that we have the exclusive right to say yes or no…a right we barely have now.” In this way, allowing for non-commercial cover songs to freely be posted on the internet only depreciates this exclusive right further.

Adapting Copyright Law to Protect the Author

Under current laws that provide for limited methods of reinforcement for illegal uploads, requiring all users to obtain proper permission in order to upload cover songs from the copyright holder is likely not going to be a successful process. Theoretically, this scenario has an easy solution: set a statutory rate for synchronization licenses so that the public has a quick and efficient way to upload videos to YouTube legally. The catch? It is impossible to set a statutory rate without contracting the exclusive rights of the copyright holder.

Scott explains that obtaining a synchronization license should “be an easy process for society.” On the other hand, he comments that “the only way this process can be simplified is if there is a statutory rate set up. It has been historically proven that any time that has been set up, [copyright holders] have gotten screwed.” Like the unfettered use of not-for-profit cover songs, providing statutory rates that may encourage cooperation with current copyright law would focus only on the social benefit. The better solution would instead be to develop new laws that would ensure cooperation with the system without further belittling artist and publishers’ rights. This means avoiding policies which induce compulsory rates like the current rate on mechanical licenses. This also means avoiding any policy which would strip the rights holder from his or her exclusive right to negotiate.

Marino and Chu’s “takedown and stay down” is one proposal in a long line of copyright reforms that will inevitably be proposed in the upcoming years. While the policy protects an author’s right to negotiate, it could result in wide-spread erroneous copyright takedowns of uploads that are lawful under fair use such as educational videos. That being said, copyright reform (as previously reported) cannot be made too specific or else the institution will become illegitimate in a court of law. Therefore, for congress and the music industry, the proper solution will grant social use of copyrighted material to promote innovation and creation while protecting the exclusive rights of the copyright owner. Scott projects that “eventually a couple of resolutions will stick and we will find a model that benefits the most amount of people and hurts the least amount of people.” In the meantime, all users should be acquiring the proper permission from the rights holder before taking another individual’s material for their own works on YouTube.