The Washington post has a great piece ("Copyright bots and classical musicians are fighting online. The bots are winning.") that illustrates a substantial flaw of copyright filters:

These oft-overzealous algorithms are particularly fine-tuned for the job of sniffing out the sonic idiosyncrasies of pop music, having been trained on massive troves of “reference” audio files submitted by record companies and performing rights societies. But classical musicians are discovering en masse that the perceptivity of automated copyright systems falls critically short when it comes to classical music, which presents unique challenges both in terms of content and context. After all, classical music exists as a vast, endlessly revisited and repeated repertoire of public-domain works distinguishable only through nuanced variations in performance. Put simply, bots aren’t great listeners.

It is well known that copyright filters cannot recognise the context of a particular use of a copyrighted work, which pretty much disqualifies them when it comes to determining if a particular use is lawful or not. The WaPo article shows that the problem runs much deeper than that. State of the art content recognition technologies (the WaPo article mainly discusses YouTube’s ContentID and Facebooks Rights Manager) are also incapable of reliably differentiating between different recordings of a work.

This is even more evidence for the fact that automated content recognition technology is simply not up to the job that proponents of Article 17 of the DSM directive have envisaged it to play. At the very minimum this means that content matches involving classical music must always be subject to human review before they can result in blocking or takedown actions.

So far i had assumed that the (literary) publishing sector would be relatively immune to the crisis. After all people being stuck have more time to read and books are relatively easy to deliver¹ So i was rather surprised to learn this moring that the Europeam publishing sector has seen a substantial decline in sales since the onset of the pandemic. According to Anne, people do read a lot more while stuck at home but they mainly read books they have already and ebooks (also due to the fact that in most European countries bookstores where closed during the height of the pandemic).

In response to this development The Federation of European Publishers and the European and iInternational Booksellers Federation have launched a call for governments to support the book sector by funding programmes that would allow libraries and other institutions such as schools to aquire books though local bookstores.

It is not very often that i am fully aligned with proposals coming from the publishing sector, but this seems like a pretty clever idea to me that would benefit an entire value chain from authors all the way to libraries and schools.

Meanwhile the Humboldt Institute for Internet and Society has published the recording of the Lecture by Philipp Staab that i mentioned here a few weeks ago:

In Staab’s analysis the key characteristic of digital capitalism is the ability of a few “leading companies of the commercial internet” (Apple, Google, Facebook and Amazon) together with smaller platforms that “rotate around these mega platforms” (Uber, AirBnB, Netflix, Spotify etc) to set the rules for the the markets that they control. It is this control over proprietary markets that underpins the power of digital platforms. According to Staab “.. they are the markets. For the scope of the commercial internet, they connect almost all the supply to all the demand (everyone who has a device).”

This feels like a very good theoretical conceptualisation of the current moment and helps to explain why everyone seems to be attempting to build market places these days. It also leads straight to the question of how we can imagine technology platforms that leverage other mechanisms than (privatised) markets in order to produce societal benefits.

A very similar observation is made in this recent episode of the Track Changes podcast by Paul Ford:

It feels like the idea that everything has to be a marketplace or have a transaction built in has just taken over our industry. And I think there’s more to platform thinking and thinking about ways to connect and empower people than just that, right?

Unfortunately the subsequent discussion, while certainly interesting fails to come up with a real answer to this question.

In 2016 Felix Stalder published “Kultur der Digitalität” ("Digital condition"). The central theis of his book is that the cultural expressions brought forward by digital technologies are characterised by “Referentialität, Gemeinschaftlichkeit und Algorithmizität” (“Referentiality, commonality and algorithmicity”). Today Felix made the following observation:

Ich habe beim Schreiben nicht daran gedacht, aber Verschwörungstheorien sind hervorragende Beispiele für die "Kultur der Digitalität".

— felix stalder (@festal@tldr.nettime.org) (@stalfel) May 14, 2020

In which he notes that while this did not come to his mind when writing the book, conspiracy theories are an excellent example of the type of culture enabled the digital environment:

They are referential (“they consist of hardly anything other than the merging of existing material which is given a new meaning”), they are communal (“not only because they are endlessly rewritten by different people, but also because they generate a shared world view and action orientation among their followers”) and they are algorithmic (“because their distribution is directly fueled by the recommendation algorithms of social media”).

I think this observation is spot on, and it fills me with joy to see a new observation perfectly fit an existing thesis/analytical framework.

In my evolving thinking about the press publishers right and the question if online information aggregators should somehow subsidise news media producers, one of the most difficult things to describe accurately is the nature of the shift of advertising business from media producers to aggregators. Describing this shift is easily misunderstod as an argument that aggregators are somehow ’taking away’ ad-revenue from media creators. This is of course not what is happening (no business is entitled to revenue of whatever sort).

However the fact that advertisers have moved much of their business from media creators to aggregators is real and it is causing real problems for them. Over at Stratechery, Ben Thompson eloquently describes this dynamic:

This is the same idea behind nearly every large consumer-facing web service: Netflix, YouTube, Facebook, Google, etc. are all predicated on the idea that content is free to deliver, and consumers should have access to as much as possible. Of course how they monetize that convenience differs: Netflix has subscriptions, while Google, YouTube, and Facebook deliver ads (the latter two also leverage the fact that content is free to create). None of them, though, sell discrete digital goods. It just doesn’t make sense.

This model is pretty good for consumers: they get access to an abundance of content for a set price. It’s great for the Aggregators: because they have so many consumers, the suppliers of content are forced to accede to the Aggregator’s terms, even as Aggregators are best placed to serve advertisers. That is another way of saying that it is the individual content maker that is getting the short end of the stick.

From “What would Schuman do?”, an essay published the European Cultural foundations André Wilkens on the occasion of Europe Day 2020 (emphasis mine):

Is there a lesson to be drawn? What is the most essential resource of economic power today? What has the biggest potential of division and destruction today? Or the other way around: What has the greatest potential of community, sharing and solidarity? What offers the biggest potential of pooling resources? For Schuman this was not primarily money but something concrete, something which was already there but unevenly distributed and a potential source of power friction. What is the coal and steel of today? Hospital beds? Ventilators? Face masks? Toilet paper? Kurzarbeitergeld? Eurobonds? A Corona vaccine? A Corona health app? What can neutralize tension and create a European bond instead? My initial thought is digital. This is the strategic resource of today. Europe is weak and divided. It has no major digital industry and relies mainly on infrastructure and suppliers from outside Europe. Europe could be a stronger actor and a standard-setter if it pooled its digital capacity. This can connect Europeans in a safe digital space. We better pool our creativity and become our own masters rather than being just vulnerable customers of US and Chinese operators.

This of course aligns very well with what we are trying to achieve via our Shared Digital Europe project. Interestingly it seems that the European Commission is thinking along similar lines (and is going to fund exploratory research into this direction)

Teresa highlighted the fact that a lot of music has moved to Instagram Live over the last few weeks and that (at least in Portugal) IG is not paying a single thing to artists or labels, even though there is a lot of reuse of musical content in the form of DJ sets and the like. With more and more music moving from YouTube to IG this makes you wonder how IG/FB is getting away with this and if Article 17 of the new copyright directive (once implemented) will make a difference here.

Seems like IG is a much more interesting case to watch in order to understand if/how Article 17 works in practice than YouTube (which essentially have Article 17 compliance build in already).

Related: The NY Times has a longish piece on how hip-hop has found a new home on Instagram live which contains the following passage which calls the whole perfomance rights situation on Instagram Live “murky”:

Instagram Live is also an area of murky performance rights and song clearances. (None of those involved with the major events of the last few weeks noted any issues with copyright, but other D.J.s have complained of having their streams muted or interrupted, presumably for infringement.)

So these days fortnite (the battle royale game) has a separate party environment where players can hang out and party and watch live concerts without risking to be shot. Tonight they hosted a Diplo concert/DJ set. Together with the tweet announcing the concert, the official fortnite account also tweeted this:

📣 !Creators! 📣

VOD content created on Party Royale may contain audio that will cause your videos to be demonetized.

However, you will not receive strikes or takedowns. We are working on a long term solution for Party Royale content.

— Fortnite (@FortniteGame) May 2, 2020

To most people this will likely sound like gibberish, but this provides an interesting insight into the complexities of music industry value chains these days. From a copyright perspective the whole setup is pretty mind boggling:

A remix artist is performing a set that largly consists of songs recorded by others in a virtual environment. The company that runs they virtual environment feels the need to tell creators (in this context: people who stream tehir exploits in games and virtual worlds as a means to make a living) that if they stream the concert their streams will be demonetised (i.e the recoding industry will claim all the ad revenue generated by these streams) but that there will be no takedowns and no copyright strikes against them if they stream the concert.

It would be really fascinating to understand the money-flows involved in this setup. Which parts of an advertising dollar spend on a youtube video that includes footage from the Diplo concert ends up in whose pockets?

New ruling by the Bundesgerichtshof in the more than 20 year long legal fight between Kraftwerk and Moses Pelham on the legality of a 2 second sample in a 1999 hip hop song by Sabrina Setlur. Instead if reaching a final verdict (which one might expect given that this case has already traveled all the way to the CJEU which answered questions of the BGH) the outcome is still not clear. The BGH ruling states that the use of the sample was likely legal before 2020 (before the InfoSoc directive was implemented in Germany) and likely infringing after that date, but they cant really tell because it’s complicated, so the lower court will need to take another look.

Julia Reda makes the very good point that this flies into the face of the conventional wisdom that fair use creates legal uncertainty while systems with specific exceptions and limitations lead to legal certainty. It is indeed fairly remarkable that in 2020 the European legal system has still not been able to determine if a foundational artistic technique such as sampling that has shaped multiple generations of artists is legal or not.

Good op-ed by Chloé Berthélémy and Diego Naranjo in EURACTIV on the role of technology in online content moderation. This passage points to a systematic problem for the digital policy making capacity of the EU:

This appalling lack of evidence for a new legislation follows a standard pattern in the Commission’s content moderation policies: whether in the fight against child abuse material or hate speech, the Commission has systematically failed, so far, to provide any statistics on how much of the content being deleted as a result of its legislation is actually illegal or on the impact of these legislative measures.

This is of course not limited to CSAM, terrorism or hate speech. Another case in point: The article 17 stakeholder dialogue organised by the Commission to ensure (among other things) that the implementation of Article 17 of the Copyright directive does not result in automated takedowns of non-infringing content, where the Commission has so far been unable to provide any empirical evidence on the prevalence of the problems being discussed, because it does not have access to such data.

This inability of the Commission to present empirical evidence pertinent to digital policy issues is deeply worrisome and means that most policy making happens based on hearsay and prevailing sentiments (and a healthy dose of selective disclosure by stakeholders affected by such regulation). If the Commission wants to establish itself as a credible regulator in this space then it will urgently need to create the ability to collect data from digital platforms by establishing disclosure and transparency requirements and it needs to stand up capacity for analysing such data.

Excellent talk on the Crisis of Digital Capitalism by German Sociologist Philipp Staab as part of the Making sense of the digital society lecture series this evening (the recording of the stream is not available yet but should eventually show up on the Youtube Channel of the Humboldt Institute). For me this concept of Digital Capitalism as something that extends beyond Zuboff’s Surveilance Capitalism and that is primarily characterised by privatised markets seems very useful. Highly recommend watching this once the recording is available.

The European Copyright Society has published a Comment on the Implementation of Art.14 of the Directive (EU) 2019/790 on Copyright in the Digital Single Market calling Article 14 on the reproductions of works of visual art in the public domain…

…a remarkable provision which, for the first time in the EU, grants a positive status to works belonging to the public domain, by prohibiting any regaining of exclusivity therein.

Article 14 is by far my favorite article of the DSM directive not only because rights a wrong that has been bothering me for more that a decade, but also because how it came into existence. As a result of determination of a tiny group of people and healthy dose of luck. Having a much larger group of renowned copyright scholars call it a “remarkable provision” is hugely rewarding - thanks!

Apparently next Sunday is World IP day and for this year the bright minds at WIPOs communication department have come up with an extra clever slogan: Innovate for a Green Future! This is an almost text book example of greenwashing: Associate your product with the current societal focus on all things green. In the case of IP rights a direct association is a bit tenuous hence the detour via “innovation” (WIPOs favorite proxy for string IP rights although that correlation is highly questionable in itself).

In order to celebrate World IP day WIPO would like everyone to make a pledge to support innovation for a green future and add that pledge to a map. While this whole attempt to greenwash strong IP rights would be rather silly under normal circumstances it really makes you question WIPOs priorities. Seems to me there are much more urgent things to do like ensuring that strong IP rights do not stand in the way of making finding and distributing answers to the current health emergency. In this light it would make much more sense for WIPO to promote the open COVID pledge, which - in full respect of IP rights - is designed to ensure that finding answers to the current crisis are not hampered by strong IP rights.

from this morning’s Playbook:

MOVE OVER, CARS: Now look at this creative use of the pandemic: The city of Brussels will give priority to those moving on foot or by bike throughout its entire city center — anything inside the petite ceinture ring road — from May. There will be a 20 kilometer per hour speed limit for vehicles.

The goal is to give people more space in the sometimes narrow streets of the inner city and make it easier for people to respect social distancing rules. But if it also helps people get used to the current, very pedestrian friendly, state of street coexistence, or persuades them to make more of their errands on foot or by bike, Socialist Mayor Philippe Close and his Green coalition partners will be the last ones to complain. These are new rules that are likely to outlast the lockdown. More here from Aitor Hernández-Morales.

This is smart and much overdue. One of the most starteling realisations of the whole COVID-19 situation is how much nicer the center of Amsterdam has become without all the car traffic that is usually clogging the place. I have wondered for a long time why on earth non-residents can still enter the center of Amsterdam by car. So i really hope that Amsterdam (and other cities) will use the crisis to radically limit the amount of vehicular trafic in the city center.

Back in March when the scope of the COVID-19 pandemic became clear, i has somewhat jokingly suggested that it would be only a matter of time before the French would suggest an extension of the term of copyright corrosponding for the duration of the crisis to compensate artists for tehir losses (a la “Mort pour la France”).

Less than a month later this prediction has now been fulfilled (well sort of). French composer (and copyright functionary) Jean Michel Jarre has proposed to create “the concept of eternal copyright”.

In our #ResiliArt launch debate on how to support culture during #COVID19, #UNESCO’s Goodwill Ambassador @jeanmicheljarre suggested eternal copyright. What do you think?

We’ve started the conversation, now we count on you to join it.

ℹ️ https://t.co/CdGXKOKnhd #ShareCulture pic.twitter.com/iuRrR3j9DW

— UNESCO 🏛️ #Education #Sciences #Culture 🇺🇳 (@UNESCO) April 19, 2020

To be clear, Jarre is not arguing for a prolongation of individual copyrights, but for assigning copyrights to a global fund that would distribute money to creators in need, which at first sight is an interesting idea, although it would raise a all sorts of practical issues: How to make sure that this benefits creators instead of institutional rightholders, who qualifies as a creator and how to make sure that this stifle creative appropriation?

Addendum: Alek calls this “a communist version of Youtube”