The human rights of artists is a different concept from intellectual property rights, such as copyright. Intellectual property rights are created by national laws, and the human rights of artists are recognized as the fundamental rights of all persons by all of the central human rights documents to which hundreds of countries have agreed.
These rights resonate in a number of international and national documents, but a good international agreement to consider first is the International Covenant on Economic, Social and Cultural Rights that was ratified by the United Nations General Assembly on December 16, 1966. It is important to remember that human rights are fundamental, inalienable and universal entitlements belonging to individuals, individual artists in our case. As a legal matter, human rights can be distinguished from intellectual property rights as intellectual property rights are arguably subordinate to human rights and actually implement at the national level the human rights recognized as transcending international and national intellectual property laws.
The Covenant recognizes everyone’s right — as a human right–to the protection and the benefits from the protection of the moral and material interests derived from any scientific, literary or artistic production of which he or she is the author. This human right itself derives from the inherent dignity and worth of all persons. The Covenant recognizes these rights of artists (in article 15, paragraph 1 (c):“The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.”
These human rights are transcendent and timeless expressions of fundamental entitlements of humanity that safeguards the personal link between authors and their creations as well as their basic material interests. These rights are personal to the authors and artists concerned and are arguably of broader scope than the rights that can be enforced under particular national intellectual property regimes.
The human rights of authors are recognized in a multitude of international agreements, including article 27, paragraph 2, of the Universal Declaration of Human Rights: (“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”); article 13, paragraph 2, of the American Declaration of the Rights and Duties of Man of 1948 (“Every person has the right…to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author”); article 14, paragraph 1 (c), of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (the Protocol of San Salvador) (“The States Parties to this Protocol recognize the right of everyone…[t]o benefit from the protection of moral and material interests deriving from any scientific, literary or artistic production of which he is the author”); and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952 (the European Convention on Human Rights) (“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”).
These precedents clearly enunciate the goals of the international community. The Covenant is closely linked with the right to own property (recognized in article 17 of the Universal Declaration of Human Rights) and workers’ rights to adequate remuneration. The “material interests” protected by the Covenant are protected under the right to an adequate standard of living.
These moral rights include the right of authors to be recognized as creators of their works and to object to any modification of their works that would be “prejudicial to their honor and reputation.” The protected interests of artists include the right to just remuneration for their labor as well as the moral right to the “intrinsically personal and durable link” between creators and their creations that survives even after the passing of the work into the public domain.
Apple Music for one have recognized the importance of protecting these essential interests of artists, albeit only recently. But I’ll take it. Apple’s commitment is reflected in the iTunes style guide that prohibits the practice of “covering” a song made popular by a different artist, but including that artist’s name in the metadata under the guise of “tribute to” or “inspired by” when the commercial incentive is to include that original artists name in the track metadata so that those searching for the original artist will find the cover. One might ask why this offensive practice became an art form only on digital services if that’s not the true motivation.
But what bothers me most about the massive, worldwide infringement of artist human rights is not just that major multinational corporations like Google are knee-deep in perpetuating this exploitation economy. It is that the governments of the world have done very little or nothing to stop it. And in that regard, these governments have failed to protect the human rights of artists.
If there seems to be a coordinated effort in many countries to oppose the rights of creators, that’s because there is — a complex effort very well described in the book Winning the Web, written by the former head of the Open Rights Group and sponsored by the Open Society Institute (www.soros.org). (The Open Rights Group (or “ORG”) is essentially the UK version of the Electronic Frontier Foundation and is a voice in the opposition to artist rights protection under the UK Digital Economy Act.)
But these coordinated attacks on artists’ rights also extend to some unlikely places — such as the United Nations Human Rights Council. This is not surprising because there has been a sustained effort to define away an artist’s ability to protect these transcendent rights (“it’s not really property so it can’t really be theft”)–the success of the anti-copyright crowd in destroying artists is in part dependent on getting over this issue. If the ORG, EFF and Google can define away an artist’s right to protect their rights through ridicule (such as Lessig’s obliging piece “The Starving Artist Canard“) , or by making them small as Lessig said on a Pirate Party UK video, “we” should not “break the Internet” to protect a “tiny industry” such as the hated “Hollywood”, then it will be easier for Google to roll over artists. Then it is easier to define an artist’s human rights out of existence altogether.
And doesn’t that just sound like a human rights violation?
Their reach is deep–I find it very strange that the United Nations 2011 report on promoting freedom of expression Frank La Rue the then-Special Rapporteur for the UN Human Rights Commission failed to address the human rights of artists even once but mentioned Google in glowing terms seven times. Who is most likely to be doing the expressing part, artists or Google?
The Special Rapporteur’s conclusions would impose grave burdens on artists, yet bends over backwards to protect the rights of corporate intermediaries online–and specifically mentions Google. Mr. La Rue, by the way, now advises Google on “right to be forgotten” take downs.
Of course it is not enough that the States of the General Assembly merely recognize these rights of artists in a number of international agreements — the States also have undertaken the affirmative obligation to protect these rights of authors. This is, after all, what the Sovereign is all about.
Those protections include adequate legislation and regulations, as well as making effective administrative, judicial or other appropriate remedies available to authors within each jurisdiction. Access to such remedies must be affordable— violations of moral rights cannot be remedied only if the rich are able to enforce their rights.
Unfortunately, this is not the current state of the world, even — perhaps especially — in developed countries. If an artist calls 911 because her car is being stolen out of her driveway, the police will respond. If the same artists calls 911 because her life’s work is being stolen online, nothing happens. This is a righteous complaint because it goes to the heart of the social contract between the Sovereign and the governed.
Some in the “Big Tech” orbit have described artist complaints of these human rights violations as “moral panics.” Anyone who takes seriously the international human rights of artists will find “Big Tech’s” dismissive use of “moral panic” to be deeply offensive to creators. It is Orwellian to describe as a “moral panic” an allegation of immorality being associated with massive infringement by means of weaponized search supported by advertising. Infringment that deprives creators of their ability to achieve an adequate standard of living. In fact, one Google representative dismissed demanding fair payment as “fetishizing royalties.”
This “don’t be moral” admonition obscures much more than mere lusting for commercial gain on the part of Google, Popcorn Time or Bit Torrent. The protection of artist rights — many of the rights of the professional creative class — are entitled to protection as human rights.
We all know that YouTube pays the lowest royalty rate and has the least transparent royalty statements of any digital service. Due to really bad advice, artists and labels have been driving traffic to YouTube essentially for free and marketers misread the direction of this traffic in forming the belief that hits need YouTube. Actually, it’s the other way around. YouTube needs hits.
Taylor Swift’s 1989 release led the way on putting this YouTube situation back on the right track. Taylor’s videos were pretty much only available on the higher-royalty Vevo, and her label used a variety of tools to take down most of the other Taylor videos on YouTube proper. (So while it is true that Taylor denied Spotify, to say that somehow the business move was ill-advised because YouTube pays less than Spotify misses the Vevo point.)
Ellie Goulding is now extending the strategy in rather a brilliant way.
Elle’s video on YouTube proper for the new single “On My Mind” is merely a still image with a 30 second snippet of the audio track. When the video starts, a link to the official (and full length) video appears, sending fans to the official video on Vevo.
At the end of the snippet (clearly marked as a snippet in the YouTube metadata), graphics come up suggesting that the user stream the track on Spotify or Apple Music. (Of course, if the label didn’t include Spotify, Daniel Ek’s high priced lobbyists would no doubt go crying “collusion” to the Obama White House they have such easy access to.)
Links under the video drive the user to more artist locations outside of the tacky YouTube environment.
Of course–given that we are talking about the tasteless YouTube, Google managed to get two–count em, two–ads to run when I watched the snippet video, a pre-roll and an embed.
All and all, a great victory over the YouTube data mining honey pot. If the artist is going to drive traffic to Google, she should be able to direct her fans to a good quality experience at a reasonable price.
Required reading regarding Larry Lessig’s pitch to help Kim Dotcom…
The second thing about Lessig’s declaration that jumps out is an apparent contradiction between Lessig and Dotcom’s defense team regarding the applicability of the DMCA safe harbors to Megaupload.
In the white paper, Dotcom’s defense team says
Even if the U.S. government’s wishful expansion of the criminal copyright law into the realm of secondary infringement were tenable (which it is not), Megaupload is shielded from criminal liability by specific “safe harbor” provisions in the Digital Millennium Copyright Act (DMCA), included in the law to protect companies like Megaupload that make efforts to remove infringing material in response to “take-down” notices issued by copyright holders
But in his declaration, Lessig asserts “The DMCA is only a defense in the civil context”. The reversal is notable.
READ THE FULL POST AT COPYHYPE:
Let’s get back to justice…what is justice? What is the intention of justice? The intention of justice is to see that the guilty people are proven guilty and that the innocent are freed. Simple isn’t it? Only it’s not that simple.
From …And Justice for All, written by Valerie Curtin and Barry Levinson.
There is a new term in our lexicon: Notice and stay down. What does it mean?
It is a way of encapsulating a distortion of the law that large multinational corporations are using to their immense profit by middlemaning the theft of other people’s property in the weaponized Internet.
In the late 1990s, the large ISPs had a legitimate concern. If they are providing ways for the many to connect with each other over the Internet by means of a technology that also enabled them anonymously to send digitized property by means of that technology–such as a file that contained a copy of a sound recording or an image–they need to be protected from responsibility for things like copyright infringement.
They needed a zone in which they could operate, a zone that came to be called the safe harbor. The deal essentially was that if you didn’t have a reason to know there was bad behavior going on with your users, a reason waiving like a red flag, then the government would provide a little latitude to reasonable people acting reasonably, assuming you otherwise qualified as an online service provider.
If a copyright owner thought there was infringement going on that didn’t qualify for the safe harbor, then the thought was that they shouldn’t have to file a lawsuit, they could just send a simple notice to the service provider. If it turned out that there was a bona fide dispute, then the parties could go to court and hash it out. The notice was perceived as an inexpensive remedy that would be available to artists who did not want to take on a lawsuit as well as large corporations with litigation budgets.
Sounds very civilized, don’t it? Sounds like something that could be considered to be just.
The one thing that nobody thought was that there would be an amoral multinational corporation whose business model is in large part built on exploiting that safe harbor in a way that it seems inconceivable was the intention of the Congress.
Now we have that company–Google–bleeding copyright owners dry through exploiting this loophole while reaping great profits for itself. Profits that it uses to hire an army of lobbyists to perpetuate its ability to bleed artists dry. The circle of life.
And if you struggle against the “whack a mole” reality of the safe harbor, then the Google PR team suggests that there’s something wrong with you.
To be clear, Google is not the only one who benefits from the safe harbor. But Google is the only company that Morgan Stanley estimates grosses $6 billion a year from YouTube. That supported Kim Dot Com’s advertising business. That profits from the sale of advertising for counterfeit goods. No, Google is in a class by itself when it comes to exploiting the “safe harbor.” Google behaves in a way that we would like to think hardly could have been contemplated by the U.S. Congress.
So now when we ask that some common sense be applied to this grotesque distortion of the law–this unjust distortion of the law–we are told that it’s not up to government to tell us what their law means, we are supposed to tell them how we would like to amend the law so that when you send a notice for the same work on the same service 100,000 times it stays down.
Whack a mole is not automatic–someone has to decide to repost the infringing file knowing it is infringing. That actually defies the entire purpose of the safe harbor–that is not a little latitude for reasonable people acting reasonably. Whack a mole actually describes a crime that should be investigated by the FBI.
Let’s get back to justice. Not only are we being asked to tell lawmakers what their law means, the U.S. Government has utterly failed artists with the fundamental justification for the sovereign common to our jurisprudence and political theory. It failed artists in the basic tenet of the social contract theories embedded in our Constitution. The Congress failed to protect artists, failed to enforce the laws, and permitted the most blatant crony capitalism to reign supreme, essentially overseeing and giving legitimacy to one of the largest income transfers of all time. You may think that’s a little soft–I’m being diplomatic. The Congress permits Google to commit what I believe to be crimes, all day, every day.
And that’s the other point. Unlike Socrates who suggested that citizens could vote with their feet, we cannot escape the Internet. It can’t be said that we should just move to another country as Plato writes in the Crito. Instead of protecting us from companies like Google and the criminal enterprises it supports through traffic and the sale of advertising, the government actually allows Google to install the gigabit Google Fiber so that massive theft can be accomplished even more massively.
So I would beg pardon here–I do not feel that it should be necessary for artists to tell the Congress what we would accept in the way of parameters for “notice and stay down”, at least not initially. I think artists have the undisputed right to ask–actually to demand–of the Congress, what was their intention.
The safe harbor is their law. They wrote it. They voted for it. They presumably have some idea what it is supposed to mean. Many who voted for it are still in the Congress. Isn’t the place to start a coming clean about what Congress intended? Why should artists have to tell the Congress what the Congress’s intention was?
If it was the intention of the Congress (and President Clinton who signed the law) that the current state of play was the plan all along, then let them say that. Google is on track to receive over 300 million take down notices this year alone. If this was the Congressional intention, then let them say that. If their intention was there should be no upper limit on the number of takedown notices any one company could receive in a year, then let them say that. And explain themselves.
And let’s be clear–Google does not view these hundreds of millions of notices as a design defect, although that would be a perfectly reasonable starting place. Google views 300 million notices as a feature set.
Neither should the starting place be some guess on the part of artists as to how many notices are too many, which is inherent in the “notice and stay down” concept. The starting place should be whether there are too many being sent already and what is the punishment.
Because what is the intention of justice? That the guilty are proven guilty. But if lawmakers won’t tell us what it means to be guilty much less prosecute the politically connected wrongdoers, then what justice is that?
An eagle eyed MTP reader (Michael Eames of PEN Music Group) noticed an odd and recent change in logo at the MIC Coalition, Google and Pandora’s soul-crushing trillion dollar coalition with the National Association of Broadcasters to grind artists even further into the dirt than these corporate behemoths already have. You’ll recall that the the logo has had a certain evolution.
Recall that the MIC Coalition (or as I like to call it the “McCoalition”) started out looking like this, all shiny and chrome:
That lasted a few weeks–McCoalition caught heaps of nasty opprobrium from all quarters of the music community (especially The Trichordist and David Lowery). Then Amazon dropped out, just up and left. Jeffrey we hardly knew ye.
So then the logo looked like this:
After Amazon left these sadists to their own devices, attention focused on National Public Radio. What in the world was NPR doing in this group. Again, David Lowery led the charge on this question, as did a number of people inside NPR who wanted none of it. Suddenly, NPR left the McCoalition without warning or announcement. Just gone.
After that, the logo changed again:
But as Michael noticed, the logo has changed again, sometime in the last 30 days or so, and now looks like this:
What is different about the new logo? All the logos for individual companies have disappeared. Now all that remains are the logos of lobbying groups.
I don’t think Google and Pandora have dropped out, nor do I think that Clear Channel has dropped out (Clear Channel now calls itself I Heart Media, which is kind of like the Cattlemen’s Association rebranding itself I Heart Cows). And remember, Google and Pandora are both members of the Consumer Electronics Association and the Digital Media Association, Google is a member of the Computer and Communications Industry Association. Clear Channel is a member of the National Association of Broadcasters and the Radio Music License Committee.
So the McCoalition continues apace–although I must say I do not understand why the National Retail Federation has something against artists. To the extent we cross paths with them at all, it has to be either as customers in their stores or vendors of one kind or another. Why would they want to form a cartel to attack us?
And make no mistake–that’s exactly what they are doing, starting with opposing the merger of SESAC and HFA. We understand why Google and Pandora, DiMA, CCIA and CEA are trying to screw songwriters, bullying creators is in their DNA. As the literature will tell you, bullies have deep seated emotional problems. I get it.
But retailers? Wine producers? Hotels? Don’t we give you people enough business?
You do have to ask yourself, though–why are they trying to hide behind their lobbyists?
Americans are freedom loving people, and nothing says freedom like getting away with it.
From Long, Long Time by Guy Forsyth
If you read nothing else this weekend, read former Secretary of Labor Robert Reich’s New York Times op-ed “Big Tech has Become Way Too Powerful.” (Which was evidently originally posted under the title “Big Tech has Become Way Too Powerful, Ask Google” judging by the title in the link (http://www.nytimes.com/2015/09/20/opinion/is-big-tech-too-powerful-ask-google.html)–I wonder who made that change.)
Secretary Reich makes the point that Google, in particular, has an unprecedented stranglehold on the U.S. Government:
In 2012, the staff of the Federal Trade Commission’s Bureau of Competition submitted to the commissioners a 160-page analysis of Google’s dominance in the search and related advertising markets, and recommended suing Google for conduct that “has resulted — and will result — in real harm to consumers and to innovation.” But the commissioners chose not to pursue a case. Investigators also found evidence that Google was pushing its products ahead of competitors’ on search results, though no legal action was recommended on this point.
It’s unusual for commissioners not to accept staff recommendations, and they didn’t give a full explanation. The F.T.C. noted a competing internal report that recommended against legal action, but another plausible reason has to do with Google’s political clout. Google is now among the largest corporate lobbyists in the United States. Around the time of the investigation the company poured money into influencing both the commissioners and the commission’s congressional overseers.
Google is heading into a major fight with antitrust officials in the European Union for some of the same reasons the F.T.C. staff went after it. Not incidentally, Europe is also investigating Amazon for allegedly stifling competition in e-books, and Apple for doing the same in music. While many on this side of the Atlantic believe Europe is taking on these tech giants because they’re American, another possible explanation is that Google, Amazon and Apple lack as much political clout in Europe as they have here.
Of course Google is simply conducting business as usual in the world of crony capitalists. While Secretary Reich could easily have compared Google’s deal with the Department of Justice for massive violations of the Controlled Substances Act to the recently announced deal with Government Motors…sorry, General Motors…that absolved GM of killing 124 people, let’s stay with Google’s influence over the current administration.
I would point out two things that I’d ask you to think about when you read Secretary Reich’s op-ed. First, imagine that the company involved was not the multination media and defense contractor Google, but instead was the multinational defense contractor Halliburton. Would you view Halliburton’s influence differently?
Second, this is not political. Google just happened to get their snout in the U.S. Government’s trough during the Obama Administration. Their influence is so deep and so pervasive with staff across the government that it really doesn’t matter who is in the White House or who controls the Congress–without even considering their armies of lobbyists.
Google controls the government, make no mistake. It will take generations to get them out. So let’s get started. There’s no time like the present. Why? Because things like this happen:
The MIC Coalition’s lobbyists at Glen Echo (who by the way are trying to have their own lobbyist panel at SXSW) sent a letter addressed to the Attorney General and Renata B. Hess, Deputy Assistant Attorney General for Criminal and Civil Operations at the U.S. Department of Justice’s Antitrust Division.
From: Aaron Alberico
Date: Mon, Aug 17, 2015 at 9:51 PM
Subject: MIC Coalition Members Urge Attorney General to Reject Calls to Weaken ASCAP and BMI Consent Decrees
I wanted to share with you the attached letter from the association members of the MIC Coalition to U.S. Attorney General Loretta E. Lynch and Deputy Assistant Attorney General Renata Hesse. The letter documents the importance of antitrust enforcement regarding the licensing of musical works and urges the Attorney General’s Office to reject calls to weaken the ASCAP and BMI consent decrees as part of their ongoing review.Please let me know if you have any questions regarding the letter.Best,Aaron
The letter asked the Justice Department to investigate the SESAC and HFA merger. Yes, that’s right. The MIC Coalition includes companies with a combined market cap over $2 trillion but they need the government to protect them from songwriters. EEK! A songwriter!
The letter said, in part:
[W]e support a rigorous assessment of whether SESAC should be governed by a parallel consent decree, we also urge you to reject calls to weaken the ASCAP and BMI consent decrees as part of your ongoing review. Rather, the Department should maintain and strengthen the important safeguards provided by the consent decrees, particularly in times of unprecedented consolidation in the publishing industry, to further promote a stable and transparent marketplace for musical works.
So why did the MIC Coalition send their letter to Ms. Hesse? Why would the MIC Coalition not send their letter to the head of the Antitrust Division as a matter of formality? That would be Assistant Attorney General William J. Baer. Wouldn’t that seem more logical?
Well, one reason might be that Ms. Hesse, in her own words, used to do a lot of work for Google shortly before joining the Justice Department–and Google is leading the MIC Coalition.
According to an interview from 2008, she was pretty busy with one of her firm’s most important clients:
Renata Hesse: Typically when we do counseling, people come to us and say, “Hey, I really would like to do this. Is that okay?” and sometimes you get some pretty interesting questions that way. Usually, the business people are the ones who are thinking of the clever ways of making sure that their products succeed and not the lawyers.
Adrian Bye: Right.
There’re been obviously antitrust issues between Google and Yahoo! Are you able to comment on any of those?
Renata Hesse: I’m not, really, I’m afraid since I did a lot of work for Google on it.
As Secretary Reich said, “[t]he real question is how government organizes the market, and who has the most influence over its decisions.”
The answer is becoming increasingly obvious.
A conference has to make a buck, you know? We all understand that, and the Americana Music Conference is no exception. The conference that is attached to the Americana Music Awards is a stalwart in our business and has managed to maintain its true authenticity for a very long time. We appreciate the sponsors who line up to support the show and the conference–it’s a great group. For the most part.
How anyone thought that it was a good idea to include Pandora in the mix of sponsors is a bit beyond me. Pandora is getting sued in the Turtles class action because they don’t pay to play artists who happened to record before 1972. That list includes a huge number of Americana, bluegrass, roots and country music artists. So how the Americana Music Conference could allow these people in the door is beyond me. Well, if they’re not going to pay the artists, it’s a good thing there are wage and hour laws that make sure the venue staff get paid.
But the classic screw up at the conference does not go to Pandora. No, no, which streaming service do you think gets the award for “Most Insulting”?
Naturally–it’s Spotify. Spotify hosted a “Spotify Master Class”–for which I assume they paid something, even though they weren’t a logo sponsor–at the swanky Hutton Hotel. According to an artist manager in attendance, the purpose of the “master class” was:
How to maximize Spotify for your artist – or how best to drive your fanbase toward using Spotify…it can be hard to tell the two things apart. They have in-house curation of specialized playlists that they can put you on: as well as dedicated marketing/promotion campaigns, etc. No mention of cost.
Right, no mention of cost. Maybe it’s “free”? “Specialized playlists” sounds like what Ministry of Sound sued them over.
So this is all just pitching business, right? Nothing too unusual about that, it is a business conference after all.
Other than the fact that the “master class” started with an unusual ground rule. Before Spotify started pitching, songwriters and artists in attendance were reportedly told not to ask about royalties. Why?
“It’s just a rabbit hole we don’t want to go down.”
The rest of the “master class” was about Spotify’s grand deflection–exposure is good for you, yum, yum, yummy.
Now, I don’t blame Americana Music Association for having a Spotify panel. I don’t even blame them for having a panel that was clearly meant to give Spotify a platform to pitch their service. We all like a little affection when we’re getting…let’s say, exposed.
But I do blame the Americana Music Association for allowing Spotify to censor what songwriters and artists can say. That is not OK. It’s fortunate for Spotify that there were no artists or songwriters in the house who were not afraid to challenge the establishment and force Spotify to defend their “leaked” Sony Music contract and shite royalties, not to mention their Google board member, Washington DC lobbying against artists and songwriters and investigation of Apple Music.
They can’t manage to pay fair royalties to artists but they can manage to hire expensive DC lobbyists to work against us.
The Americana Music Association needs to take a closer look at who they’re taking money from and why. I think there are any number of artists and songwriters who could give the AMAs a master class in what it really means to be an artist or songwriter in a streaming world.
The AMAs have lost the page. We need to help them find it again.