Article 13 of the Directive seeks to bolster content creators’ rights, by encouraging fair and appropriate licensing agreements between such creators and online platforms like YouTube. A failure to implement licensing agreements may ensure unauthorised protected works are not made available on an online platform.
Cohen maintains that Article 13 threatens content creators using online platforms such as YouTube, as the platforms become liable for the use of unauthorised material, which will stifle the creative environment that has benefited so many artists.
For example, earlier this year, YouTube CEO Susan Wojcicki stated that one of the most played YouTube videos of all time, Luis Fonsi and Daddy Yankee’s Despacito, may not have been so if Article 13 have been in force at the time .
She noted that “[Despacito] contains multiple copyrights, ranging from sound recording to publishing rights… Although YouTube has agreements with multiple entities to license and pay for the video, some of the rights-holders remain unknown. That uncertainty means we might have to block videos like this to avoid liability under Article 13.”
Cohen has contended that content including music remixes, covers, video tributes, and parodies risk being stifled as a result of Article 13. For example, the necessary content recognition software (in YouTube’s case Content ID) may not be capable of fully recognising fair use of all copyright protected material. He worries that, given the scale of YouTube and his claim that 50% of songs have unknown ownership, the enormous liability risk for allowing any form of copyright protected content will mean YouTube will be forced to remove a huge amount of uploaded content.
He argues that YouTube videos containing music works are powerful promotional tools for the music industry. They represent part of an organic relationship between artists and their fans that can benefit all involved, and threatening their existence will result in less exposure and remuneration for artists, not more, in addition to a dampening of content creativity.
He nonetheless does acknowledge the importance of protecting the rights of artists and ensuring fair compensation for their work, but believes an improved way of doing this can be collaboratively developed beyond potentially destroying a pivotal aspect of the music industry’s continued success in the present online era.
Critics of Cohen note YouTube’s aim to protect their business model, which on one level sees the platform depriving creators of rightful revenue. It highlights a value gap (to use the EU term) between the return of fair compensation to artists by platforms such as YouTube against those of online subscription services like Spotify.
It is a case of tech giants vying to maintain the status quo of their exploitative approach to artists, following their own rules above those which seek to impede their profit-making capabilities.