Music Ally is busy liveblogging some of the key sessions at the Copyright & Technology conference in London today. The latest was a panel session on ‘The Limits of Copyright in the Digital Age’, moderated by Serena Tierney of Bircham Dyson Bell.
Her panel comprised (l-r): Andrew Orlowski from The Register; Mo McRoberts from BBC Archive; Jeff Smith from BBC Radio 2 and 6; ; and Lindsay Lane of 8 New Square Intellectual Property. The panel’s inspiration was the recent lawsuit between Ministry of Sound and Spotify over playlists, and related debate on the lines between copyright and database rights, from football fixtures to music playlists.
Lane started things off, as a lawyer involved in many of the cases in this area. “I’m not sure I really understand all of the judgements, even having been involved in many of these cases!” she joked.
The introduction of the database directive spurred a case between the British Horseracing Board and William Hill, with the latter ultimately prevailing. “Essentially the British Horseracing Board said they had database right in their list of runners and riders,” she said. “That was being used by William Hill for the purposes of betting without a licence.”
But the ultimate court verdict ruled that the Board didn’t have database right because they weren’t merely obtaining the data: they were creating it. “They said that is outside the scope of what we’re intending to protect, so no database right.”
The next case was Football DataCo trying to prove that copyright existed in football fixture lists. And ultimately the European Court ruled that there wasn’t copyright, for a similar distinction between creating the content, and merely gathering it – “selecting and arranging the contents”. For protection, the creation mustn’t be in the data itself, but rather in the structure of the database.
“When you are confronted with a piece of work which is a database, and an awful lot of things are databases,” she said. “You have to think to yourself very carefully, have I got the right kind of work going into this? For database right it has to be gathering existing content, whereas for copyright it has to be intellectual work in the selection and arrangement.”
And then on to another case involving Football DataCo, but this time the focus was live data: former pro footballers attending matches and phoning through data to PA Sport on goals being scored, bookings and sendings off etc. That was being used by two companies, Stan James and Sportradar, and this time the court of appeal ruled in Football DataCo’s favour: database right did exist, because the data being gathered in was pre-existing.
So where are we now? Ministry of Sound versus Spotify: a claim for copyright infringement under the database directive, with the main question being whether there is sufficient intellectual creation in the selection and arrangement of tracks on Ministry of Sound compilations to make Spotify playlists based on them be deemed infringing.
Next up was Jeff Smith from BBC Radio 2 and 6, who’s responsible for those stations’ programming and playlists. “What we have at Radio 2 and 6Music is a very large repertoire of music, and my job is to manage it in terms of how music is rotated on the station,” he said.
He noted how the word playlist once meant what was played on the radio, but has now been adopted by digital music services. He reminded the audience that the BBC has its new service called Playlister, which exports lists of music played on various BBC channels into services like Spotify, Deezer and YouTube.
“We see within digital music services what I’d term of a tyranny of excess,” he said. “There are 25m tracks in the cloud nowadays, and people have to find their way through it. Part of radio’s job in the past was to help our audience find their way through it. Nowadays, playlists are going to be even more important. And how that exists in the future and how it’s protected from the point of view of broadcasters is a challenge.”
He suggested there are “real concerns for radio about how we protect ourselves in the future”, but that the BBC benefits from its situation as a licence-fee funded body: it encourages its audience to share the work that it does.
Onto Mo McRoberts, who works in the BBC’s digital archives, to talk about a different aspect of how the BBC deals with these issues. His role is to get the most out of the Beeb’s archives – a large part of which is making new programmes using that material, or helping the public find their way in. “It’s all about what can people do with this stuff that they’re not already able to do, predicated by the fact that they paid for it in the first place,” he said.
He talked about his first reaction to the Spotify / MoS case: “My head hit my hands. Really? REALLY? But it’s important to unpack it, because there’s some nuance to it,” he said, suggesting that Ministry of Sound albums exist for two reasons: first as a way of getting stuff that’s popular in a certain genre without having to buy 30 singles, and secondly as a DJ mix.
“Spotify will give me the stuff that’s popular anyway. It won’t give me the DJ mix,” he said. “There is a pressing question of what is threatening what, and to what extent?”
McRoberts also noted that Spotify playlists can take different forms: a creative endeavour to create the best playlist for a specific artist, genre or theme, or simply an easy way to bookmark an album – particularly for quick access from Spotify’s mobile apps.
“If you’ve imported your iTunes collection and you’ve got Ministry of Sound albums there because you’ve bought them, and you want to listen to them on your iPhone, you’ll almost certainly create a playlist out of them, and you’ll have a playlist named after a Ministry of Sound album,” he said.
“And playlists nowadays are pretty much shared by default, and they’ll show up on search results. And all of these things individually are good things, but put them all together, and you’ll get the CEO of Ministry of Sound being quite unhappy.”
McRoberts also wondered who’s infringing in this situation: is it Spotify, or its users? If it’s the latter, Ministry of Sound may find itself in the position of essentially suing its own customers. “I don’t know what the answer is, but it seems to em that an awful lot of it is a product of circumstance that nobody necessarily intended to come about. And that does leave open the question about what it all means, really,” he said.
Over to Orlowski, a veteran journalist for The Register who’s written widely on digital content and intellectual property. He talked around the subject to give some context, suggesting there are
“A lot of public disputes about copyright are public disputes because they haven’t been settled in private. And that’s because the incentives haven’t been lined up,” he said. “Would Ministry of Sound have a dispute with Spotify if there were pounds coming in rather than pennies? My interest is really seeing the interest of rightsholders and technologies aligned again, as they always have been to make creators richer and create new markets in the future.”
He talked about his first response to the playlist dispute, which was similar to McRoberts: “Here we go again! But curation… undoubtedly and absolutely a playlist is an original work,” he said. And he suggested that Spotify could very easily solve the problem by making playlists private by default, rather than public. “Silicon Valley has this demented ideology that everything must be in the public and hung out to dry,” he said. “But this, it seems to me, would be a very quick way of solving this problem.”
The panel were asked about the potential for the boot being on the other foot: could a Spotify user sue Ministry of Sound if it releases a compilation that seems to be copying their Spotify playlist? Or, indeed, a YouTube user sue the BBC if one of its documentaries seems to be apeing something they’ve done online.
Orlowski agreed that copyright is “a powerful individual right” designed to protect individuals’ content as much as that of the creative industries and large corporations. He also suggested that in the case of Ministry of Sound and playlists, if the business model worked for all sides and a Spotify user had a great playlist “why wouldn’t Ministry of Sound license it?”
Does a shuffle function get Spotify off the hook? “We haven’t yet established that they’re on the hook!” joked Tierney. But Lane admitted that it raises the question of intellectual creation being in the selection or arrangement of a playlist – with shuffle, there’s no arrangement to fall back on. “If it was just the selection, is that creative enough? Answers on a postcard!” she said.
McRoberts responded to a question about whether legislation should protect Ministry of Sound’s compilations business model: “It’s not the law’s job to ensure a legacy business model,” he said. “That’s not to say Ministry of Sound doesn’t have a viable business model. I think it does. But it’s not the law’s job to say this old business model deserves protection more than this new business model which is emerging.”
Orlowski didn’t quite agree on that. “If there is value in that, it should protect it. If this selection and curation of material has value, has originality, we should protect the incentives for creation of that in the future,” he said. “These arguments are very much about what happens in 20 years time… We should think very carefully about how we change the law for convenience or very temporary friction.”
McRoberts talked about Spotify’s status as a direct competitor to Ministry of Sound as a discovery channel for music, but warned that in this particular legal dispute: “Nobody’s really going to win.”