EFF has learned about a new proposal for European law that takes aim at online streaming services, but which will strike a serious blow to creators and their fans. The proposal, which would effectively ban online streaming services from hosting works under free licenses, could spell an end to services like the Luxembourg-based Jamendo that offers access to free music online, and raise new barriers to offering freely-licensed works on other streaming platforms.

This is all part of Europe's proposed new Digital Single Market Directive, which is presently doing the rounds of the three European institutions (the European Commission, European Parliament, and Council of the European Union) that will have to reach agreement on its final text. As part of this process, proposals for amendment to the Commission's original draft are coming up from several of the committees of the European Parliament. We've previously sounded the alarm about other aspects of this Directive, including its misguided link tax and plans for an upload filtering mandate, both of which are the subject of ongoing compromise negotiations.

But this latest amendment proposal, coming out of left field, would be added to another section of the Directive, that proposes to ensure fair remuneration to authors for the use of their works, an objective that EFF otherwise supports. The Parliamentary committee leading the negotiations is the Legal Affairs (JURI) committee, but other committees are preparing opinions on the draft and can also propose their own amendments to it. This proposal has come from the Committee on Culture and Education (CULT). Although the text of the proposal is not available online, as it is under discussion by the Rapporteur and Shadow Rapporteurs of the CULT behind closed doors, EFF has obtained a copy, which says:

  1. Member States shall ensure that, when authors and performers transfer or assign the right of making available to the public of their works or other subject-matter for online on-demand services, they retain the right to obtain fair remuneration derived from the direct exploitation of their works present in the catalogue of those services.
  2. The right of an author or performer to obtain fair remuneration for the making available of his/her work as described in paragraph 1 cannot be waived.

In short, this creates what amounts to a tax on copyright works made available on online streaming services, payable to the collecting societies that administer copyright on behalf of authors and performers (though the tax itself is separate from the copyright holder's economic rights). The tax cannot be waived by the authors or performers themselves, which means that even if they want to make their works available for streaming online for free, the law would tie their hands and prohibit this. The streaming site would still be required to set aside money for "fair remuneration" of the authors and performers, whether they want this or not.

The proposal seems to be modeled on a similar amendment that was introduced in Chile last year, and which unfortunately passed soon after we wrote about it, without any substantive debate. It's not unusual for measures such as this to pop up in Europe or America after a smaller country adopts them. The recording industry's IP maximalist agenda is a global one, and it often makes sense for them to establish a precedent somewhere else in the world where resistance to their proposals may be weaker, before pushing it out to larger economies.

This amendment would eliminate one of the few advantages that small and independent artists enjoy in promoting their work online—the ability to make it available for free. For some such artists, the free online availability of their work builds up a fan base to support future licensing deals, concert tours, and merchandise sales. Others may release some or all of their work for free for non-economic reasons, such as to communicate a message, or simply for the love of their art. Certainly, not all artists do this. But the law as it exists at present at least offers them a choice. Either they can license their work to streaming platforms for money, or they can make it available to such platforms for free. But if this amendment passes, that choice will be taken away from them.

The losers from this proposal are fourfold. Perhaps the biggest losers are the creators themselves, who will face new barriers between their art and their fans and collaborators. The streaming services will also lose out, as they will face higher expenses and will no longer be able to operate non-commercially even if they only carry freely licensed content. Fans, of course, will suffer because of the reduced legal availability of free music and video online. And even the copyright industry will suffer, as the increased costs of legal streaming services may cause creators and fans to shift back to peer to peer file sharing, where copyright infringing works are also exchanged.

Since this proposal enjoys the support of a majority of the European political groups in the CULT, if nothing changes then it is very likely to pass that committee at least. The next meeting of the Shadow Rapporteurs is on Tuesday May 16, we have no time to waste in sounding the alarm about how misguided and destructive this amendment is. A list of the CULT members who are considering the proposal can be found here, complete with email and social media contact details.

EFF's European supporters are urged to contact their representatives with a simple message: to oppose any amendment to the Digital Single Market Directive that would create a new unwaiveable right to fair remuneration on online streaming platforms. The future of free culture in Europe depends upon it.