How a YouTube Video Sparked a Decades-Old Music Copyright Debate That Refuses to Be Resolved

A video posted in 2013 titled "How to Avoid Copyright on YouTube" was at the heart of the disucssion at this year's Roundtable Conference in Kristiansand, Norway.

Like many other DIY creators, 20-year-old Canadian Alessia enjoys using YouTube to express herself. Through her eponymous channel, she uploads self-made videos to her more then 7,400 subscribers, discussing topics ranging from the latest memes to her favorite K-pop groups.

The venture seems innocent enough -- but unbeknownst to Alessia, her 2013 video "How to Avoid Copyright on YouTube" has set off a fiery debate four years later among some of the most powerful decision-makers in the music industry.

The video was screened at the outset of the 10th annual Roundtable Conference, a two-day music industry symposium focused on copyright that took place on Nov. 8 and 9 in Kristiansand, Norway. The event featured delegates from nearly 30 different music companies -- spanning major law firms, performance rights organizations (PROs), distributors, governmental organizations, trade and artist advocacy groups, tech startups, concert promoters and universities, but notably no record labels or streaming services (I was the only journalist in the room). Crucially, the Roundtable has operated for the past decade under the Chatham House Rule, which states that participants can use and share any information discussed in the room, but cannot reveal the identity or professional affiliation of anyone who shares such information.

Co-organizers of the Roundtable included Peter Jenner, President Emeritus of the International Music Managers Forum (IMMF) and former manager of Pink Floyd, Billy Bragg and The Clash; Bendik Hofseth, chairman of CISAC’s International Council of Authors and Composers of Music (CIAM) and former chairman of the Norwegian Society of Composers and Lyricists (NOPA) and of indie distributor Phonofile (since acquired by Sony Music); and Daniel Nordgård, Associate Professor of Music Management at the University of Agder in Kristiansand, which is a major sponsor of the conference.

What ensued this year was a tense dispute that could only happen under the protection of full anonymity, among multiple stakeholders each with their own vested interests in maintaining traditional (if not outdated) views on copyright in the digital age. However, one point of consensus was clear: Alessia’s “How to Avoid Copyright on YouTube” highlighted the music industry’s drastic failure to communicate copyright as a fair, positive means of remuneration and permission, rather than as a prohibitive, anti-consumer force.

“For this girl, copyright is the enemy, because it’s synonymous with being ‘slammed’ by takedowns,” an entertainment lawyer in the room noted. “It shows that we’ve been enforcing copyright not as a protection of creators, but as a business venture for huge corporations. It’s a rather invasive narrative that doesn’t align with the girl’s sense of community around [intellectual property].”

Indeed, Alessia states the phrase “slammed for copyright” nearly 20 times over the course of the video and offers advice ranging from avoiding music video reactions to steering clear of Japanese-owned content -- framing copyright enforcement as a nuisance to circumvent rather than embrace, or at least respect.

Yet, it’s also clear that Alessia values proper attribution. In her video, she advises viewers to write their own intro music and to state their sole ownership of that music in their video descriptions, including links to relevant audio files. In addition, she encourages viewers not to steal others’ ideas freely, but rather to ask third parties for permission before incorporating external videos and sounds into their own material.

“[Alessia] basically stated that the only way to avoid a copyright is to create your own copyright,” said an executive from a major collection society. “She understands the concept of creators asserting ownership over their material, but her understanding of the legal aspects of copyright is more abstract and much more negative.”

Hence, an important part of the music industry’s future will be tweaking its legal backbone to acknowledge how millions of fellow online creators like Alessia are not deliberately trying to infringe on anyone’s rights, but rather are simply trying to express their tastes and opinions to a broader audience. “The head of Universal Music Group would say that sharing my song without my permission is like stealing from me, but I think we should challenge that,” asserted an artist manager in the room. “The music industry tends to be individualistic, but we have to accept that there’s a common element in what we’re doing. No corporations today adequately reflect the value of that common content.”

“Creativity has moved from the network center to the edge and licensing has to follow,” added a PRO executive. “How do we remunerate that edge? That requires a different type of licensing, because you can’t collect from the gate if you authorize at the fringes.”

A private industry consultant chimed in: “We usually talk about needing to teach [Alessia] copyright, but maybe she is teaching us about copyright. At the end of the day, she wins and we die if we don’t realize that it’s our privilege to work with her and her audience and achieve a better balance.”

Yet, over the course of the Roundtable, a stubborn tension persisted between the philosophical consensus around accommodating a “post-control” world and the challenges of actually realizing that goal -- especially in the context of YouTube, which has been sparring with the music industry for years over its built-in "value gap." In fact, as Nordgård details in his recent dissertation about the Roundtable’s history, many of the same issues and demands for radical systemic change in the music industry have been raised repeatedly over the last decade of meetings, without any concrete resolution -- despite a “digital revolution” allegedly shaking up the business with different revenue streams and music formats.

According to Nordgård’s dissertation, the first year of the Roundtable conference in 2007 was ridden with a “pessimistic and deterministic view” on the future of music, in response to the Napster era. In contrast, amidst the gradual mass adoption of streaming in the early 2010s, the Roundtable discussions quickly became more optimistic and “more oriented around finding sustainable solutions.”

Surprisingly, however, the tone of the 2017 Roundtable seemed to revert back towards the pessimism and stagnation of a decade prior -- a stark contrast to the recent flood of bullish industry commentary from the likes of Goldman Sachs.

Why this newfound cynicism? A music industry consultant at the Roundtable suggested that streaming’s initial, rosy promise to rights holders has since been overshadowed by disillusionment around messy data and the compensation challenges that result. “We’re still only at the beginning of the innovation bell curve,” she said. “It took until 2015 -- 15 years! -- for labels to admit that on-demand streaming was here to stay. Then came 2016, which was an ‘oh shit’ moment when labels realized that they weren’t prepared to process and analyze the vast swaths of data that were coming in, nor were they equipped to make sure the money was flowing properly through the pipes.”

What’s more, the consultant added, “through action and failure, labels realized that it didn’t make economic sense for them to compete on a base data level. They preferred to compete on a service level -- transparency and speed of payment, accuracy down to the number of decimal points -- and leave the data problem to outside players.”

As a result, a behemoth, fragmented rights management landscape has cemented itself even further into the industry’s core, with hundreds of PROs globally that invest heavily in solving a backlog of data problems retroactively, rather than laying down better technological and management foundations for the future. As a lawyer in the room put it, “we’re spending dimes on getting the right data in, and dollars on amending the data later on.”

Interestingly, the majority of Roundtable participants agreed that a global rights database -- the long-glorified concept of a single, authoritative registry that would reduce ambiguity around ownership and revenue splits across organizations -- was no longer a feasible solution for the music business, both technologically and politically. Many participants argued not only that non-disclosure agreements essentially force labels and publishers to resist creating a public database, but also that unattributable royalties (commonly referred to as “black-box money”) gets distributed on market share if unclaimed after a few years, which benefits bigger labels and actually gives them incentives to provide bad data.

In fact, there has been a marked attitude change in the industry overall around data quality, such that umbrella organizations are beginning to compete, rather than cooperate, on accuracy and trust. The RIAA and NMPA have banded against the ASCAP-BMI duo on building their own separate databases, presumably more for strategic advantage than for the betterment of the wider music landscape.

There was no consensus at the Roundtable over whether this new competition would actually improve the quality of data standards. One PRO executive argued that the music industry could take a “non-panacea approach” to the data problem by “taking pragmatic action in localized situations” -- i.e. geographically tailored services -- while someone else in the room shot back, claiming that “competition may sometimes be a good thing, but not for identity.”

Many Roundtable participants also pointed to how the pessimism in the music industry comes not just from the lack of good data and surrounding incentives, but also around the culpability of streaming services in devaluing music and making the consumption experience less personal, particularly for DIY and niche communities. An executive from a European PRO, calling himself a “student of history,” recalled that the music industry’s solution for digging itself out of its historic recession in the 1920s was to cater to niche genres. “Now, I’m afraid we’ve found ourselves at the tail end of a similar financial situation, but have the opposite solution of going towards safer, mass-market music, which has the effect of making the average music listener more indifferent,” he said. “We’ve gone from curating music that people really love to curating music that people simply don’t hate.”

“Because of paid streaming subscriptions, blockbuster-oriented consumer spending has quadrupled, but niche-oriented consumer spending has actually decreased,” an academic researcher added. “We’re all capped at the same price point of $9.99, which explains our move away from niche markets.”

Spotify’s upcoming IPO was also a point of common concern for Roundtable participants, in terms of how it might potentially confound the value of music in a service-driven era. “The dissemination of music is only a byproduct for Spotify,” a tech entrepreneur argued. “What they’re really pursuing at the end of the day is stock market value. I’m perplexed by why the music industry is going to continue to feed this monster. There’s also still a rotten core at the center of the apple: the musicians who aren’t coming along for the ride.”

To my surprise, the 2017 Roundtable participants excelled at articulating and laying out the industry’s problems, but without mentioning any of the myriad of companies around the world who are already building solutions. When I asked participants if they had heard of the Open Music Initiative (OMI) -- a historic, top-level initiative bringing together over 140 member organizations, from major labels and publishers to early-stage startups, dedicated to rights management reform -- no one said a word. When I mentioned that the OMI was building an API that could link recordings, musical works and music rights holders, few people seemed enthusiastic about the idea.

One entrepreneur did briefly mention Resonate, a blockchain-powered music streaming service, but did not dive into any detail about its underlying economic model. No one mentioned other services like Gimme Radio or Quincy JonesQwest TV that are actively experimenting with alternative, artist-first music streaming experiences, independent of any copyright debate.

In this vein, one of the biggest takeaways from the Roundtable was the stubborn gap in perspective between top-down decision-makers and bottom-up entrepreneurs in music -- in part because execs tend to focus on fixing past problems, rather than on laying down better foundations for the future. “Instead of waiting three, five or even 10 years after the fact to figure out how to solve previous problems, we need to tackle our underlying philosophy now, so we can move forward more effectively,” said a concert promoter and cultural consultant at the Roundtable. “If you try to apply old-fashioned, top-down governance practices to a highly networked world like what we’re currently doing, you’ll immediately run into issues.”

The promoter’s comment presented a harsh, but perhaps truthful thesis: The slowest part of the music industry’s value chain may simply be the human beings working to fix it.