From EMI to YouTube musicians always lose - but the EU copyright proposals may not help

The devil's in the detail of Articles 11 and 13

Making music pay has never been an easy gig. Back in the day, even succesful artists were prone to waking up to find that ruthless managers and record labels had picked their pockets and that they didn't even own the rights to the songs they'd penned.

In the digital age where music is infinitely copyable and distributable everything changed. Out went the Don Arden-type hard men, with their habit of dangling the uncooperative by the ankles from multi-storey car parks, and in came the fresh-faced guys in sweatshirts and jeans with their laptops and streaming platforms. Suddenly getting music published was easy, but once again musicians found they were getting stiffed, only this time the lions share of any profits was going to the platforms rather than the manager. Worse, freed from the constraints of vinyl, anyone could download the music for free denying them even the pittance paid by Spotify or YouTube.

It's understandable, therefore, that musicians, writers, artists and others who make a living through creating copyable content are keen on having something that lets them fight back against the freeloaders and have welcomed the EU reform plans which promise to make copyright fit for the digital age.

"YouTube make billions of pounds out of the music content on their platform. I'm very angry about it, so are lots of other people. It's time that they paid their fair share to the people that create the content that's made them billions," said Michael Dugher, CEO of UK Music a campaigning and lobbying group which represents the UK recorded and live music industry, who accused Google of being a "massive corporate bully".

Copyright laws, like much other legislation, have failed to keep up with the pace of technological change. There's no doubt that the technology companies have milked the system to take the cream off the top and in doing so have created virtual monopolies that make it very hard for competitors to get a foothold.

Few would argue against the creation of a rights framework that's designed for digital and rewards artists for their labours more fairly. Updated rules could allow more space for competitors to the big platforms, levelling the playing field and creating a more open market for content. Indeed, measures to modernise the rules across the EU enjoyed broad support when first introduced, but as always the devil is in the detail.

In particular, the re-introduction by German MEP Axel Voss of two proposals that had been previously rejected as unworkable drew suspicions that side agendas were being smuggled in.

Article 11 would have created a new rule that would have severely restricted the right to quote or even link to other articles online without paying for the privilege. This, say its opponents, would stop the internet doing what the internet does best - providing for the free sharing of information and knowledge. News aggregator newsnow.co.uk demonstrates what its site might look like if such a law were to be passed.

The terms of what defines a 'link' or a 'snippet' are very vague. What's more, many publishers undoubtedly benefit from having their articles linked by Google News and Newsnow as previous attempts at introducing a ‘link tax' has borne out. There's also the question of how data mining would be allowed. Scientific research would be exempt, but the danger is that others working with datasets and derived information would be locked out.

More troubling, perhaps, is Article 13, which required all online content providers to police their platforms much more rigorously and to proactively take down any copyrighted material under pain of stiff fines.

This means using automatic filters to check content for copyright as it is uploaded. Viable upload filters do not exist as far as I'm aware, and yet the technology is being invoked as a solution to copyright woes in a similar way as automated checks on the Irish border are a feature of the Brexit debate - a way of kicking a problematic political can up the road. The effect of ‘computer says no' is likely to see ‘innocent' content blocked by filtering algorithms that do not sufficiently consider edge cases, especially in the early days. On a more sinister note, it would provide a mechanism for censorship and surveillance by whoever pulls the strings behind the scenes.

MEPs narrowly defeated an attempt to fast-track the prosed legislation in June, primarily because of concerns about Articles 11 and 13, and a variety of amendments have been tabled since then. A new vote takes place on September 12th. For those interested, the proposed amendments are published here. To be honest I lack the time, inclination or brainpower to even begin to take them in, but it seems like a bewildering sea of caveats and exceptions - just the sort of thing expensive lawyers employed by the likes of Google and Facebook will use to run rings around the legislators, and which their competitors will be unable to afford. A simple idea has turned into a complicated mess.

I'm no legal expert, but the law of unintended consequences says that the new rules could even end up advantaging those it intends to rein in, have little to offer those it aims to help, stifle the market it seeks to encourage while further Balkanising the web. I have genuine sympathy for musicians, artists, film-makers and writers who are ripped off by the current system and hope that whatever eventually gets voted through has the desired effect, but I have my doubts.

A copyright law genuinely fit for the digital age would be like the technology itself: flexible, adaptable and quick to change if it doesn't deliver as planned. We'll have to wait for the arrival of our robot overlords for that (and it might not end well), but lets hope MEPs manage to redress a historic injustice without screwing things up elsewhere.