"Don't be evil" is one of Google's famous mantras that is called into question whenever they do something that upsets someone, and the latest issue that has called it into question is the battle going on between the PRS For Music and YouTube.

Google have blocked thousands of music videos from their site from visitors from the UK as a result of the dispute. The PRS for Music's argument is that they are simply asking Google to pay the same fee as always for their licence, while Google argue that they are being asked to pay more. The PRS say that they didn't ask Google to take down any music, while Google have taken a more passive-aggressive approach, saying that their PRS licence had expired and they don't want to provide a service that they don't have the right to provide. Coincidentally, turning the licensing negotiations into a news story.

I'm going to assume that you know who Google and YouTube are and what services they provide, but it's probably worth briefly explaining exactly who the PRS for Music are and what they do.

PRS for Music is "home to the best composers, songwriters and publishers", and aims to ensure that they get paid for their work. When a band would play a song written by someone else, the Performing Rights Society would ensure that the songwriter was paid for the music they created. This was separate from the mechanical rights— the rights surrounding a recorded piece of music, which was previously dealt with by the MCPS (Mechanical Copyright Protection Society)— a separate body which formed a partnership with the PRS as the MCP-PRS Alliance, which rebranded itself as PRS for Music earlier this year. (A explains the reason behind the rebranding, making it clear to licensees and members that it will have no effect on their roles. There is also a short video, illustrating the new logo— which somewhat ironically takes advantage of YouTube's free video hosting service.)

Another newer organization aiming to represent the creative side of the music industry, the Featured Artists Coalition, recently launched themselves, and speaking at their conference, Radiohead have also made a statement on the issue, and the BBC reports that the music-on-demand service Last.fm have stepped into the argument; founder Martin Stiksel is quoted as saying that

"Terrestial radio pays a fixed minimum and that works out a lot cheaper. […] We have to find commercially workable rates otherwise illegal services will win and take over. […] It is a fundamental problem that we have been facing in that online music licensing is getting more complicated and more expensive."

So, for the moment, Google has blocked access within the UK to "premium" music videos— meaning that UK users now have to resort to finding illegally uploaded versions if they want to watch music videos on YouTube. (This appears to be separate from the block earlier this year, which was aimed at copyrighted music— and subject of a considerable amount of criticism.) As negotiations between the two are still ongoing, there is little information available about the actual numbers and terms being discussed, but taking a look at the range of different "Music for Online" licences that PRS for Music offers, what the negotiations are calling into question is the nature of the service that Google is offering.

The PRS For Music website illustrates the different rates that are applicable for different services; essentially, they work on the basis that the site owner pays either per music stream, per hour of music streamed, or as a percentage of their revenues, depending on the type of service that is being offered. Putting myself into the shoes of both YouTube and PRS For Music, I can see that I would clearly be making a very different argument for either side about what it is that YouTube actually does, and where music fits into the service it provides; from £53 block licences for 5,000 downloads (for audio-visual services where music is the primary focus of the content) to £53 block licences for up to 8,500 music hours streamed (for audio-visual services where music is not the main focus of content), up to royalty rates of 8% of gross revenue for on-demand services.

You could easily argue that YouTube isn't at it's core providing a music-on-demand service— the most expensive to licence— but it's an equally difficult position to defend. While it obviously isn't the service that YouTube set out to provide, it is certainly a way that the service can be used. There are even reports about services out there which use YouTube as a music library to provide a streaming, on-demand music service. (Whether the muziic.com site has been picked up by the PRS' radar, I couldn't say. I'm guessing not at this stage...) But Google could probably argue that they deliver a number of services with YouTube; music might be incidental background music in a video, perhaps with a licence paid for by the submitter, or perhaps used without permission. But seperating out YouTube's videos only scratches the surface of the issue.

Now it might be the case that, as Edison said, "Genius is 1% inspiration and 99% perspiration", but when the originator of that 1% isn't involved in the other 99%, it raises an interesting question about how they should be rewarded for the work that it inspired. The PRS for Music has said that;

"Google has told us they are taking this step because they wish to pay significantly less than at present to the writers of the music on which their services relies, despite the massive increase in YouTube viewing."

I think the idea that music is what YouTube's service "relies on" illustrates the heart of the problem.

Ultimately for PRS for music, the issue is the crisis that the music industry is currently facing. The internet gives people the technology to share information for free, and since the shift to the CD, music is now in a standard format that is digital. This shift to digital had some great short term gains for the industry— people buying their record collection all over again in the 80s and 90s, with the killer selling point of being a perfect copy of what was recorded. However, the problems that followed were that firstly that computers became powerful enough to record a perfect copy of what was on the CD at home, then CD writers and blank CDs became cheap enough for home made CDs to plummet in cost— both in terms of money and time/effort to make. Then the internet made it equally cheap to share the music without needing the CD to store it on.

Combined with this is the business model that record companies are built on; the service that they provided was essentially access to the tools to turn a musical performance into a physical product, and the means of distribution to put them in shops. Now, in a realisation of Karl Marx's vision, the workers can control the process for themselves. The cost of production and distribution is no longer the bulk of the cost of making and distributing a record, and while organizations like the RIAA argue that promotion is now the costly part of the process that still needs to be paid for, time and again we see case studies that show this isn't necessarily the case; Nine Inch Nails' self-published album that sold millions of copies, topping the Amazon MP3 charts with no promotional costs, bands like the Arctic Monkeys who become famous without record label backing, or Prince giving away copies of his album with Sunday newspapers. The final line of defence for the labels is that they need the revenues from their top sellers to fund the promotion of new, as yet unknown acts so that they will be able to earn a living from their work. But whether this will continue to convince established artists to carry on working with the labels when their contracts expire remains to be seen.

Essentially, the music industry is seeing it's product- music— become a freely available commodity. The catch is that this isn't a recent shift; radio and TV have always provided a way of getting music for free— even before it was officially released. Ironically, record labels would have fallen over themselves to give their music away for free to the "right people"— the people in control of these free distribution channels. Now that everyone is in control, they are desperately trying to claw back control, falling back on copyright laws, ethical arguments and licensing organisations like the RIAA in the US and PRS For Music in the UK to register and protect the assets that their businesses rely on. The standard argument goes that artists need to be paid to encourage their creativity, and to ensure that they are rewarded for their work.

But representing the "best composers, songwriters and publishers" means that PRS For Music are vulnerable to the impact of yet another trend that digital media has brought about; the increasing importance of the "Long Tail"; the collection of small or niche interests which, the theory goes, when added together become a bigger market than "the hits." A study a few months ago that the PRS-MCP Alliance (as they were at the time) talked about suggested that the Long Tail theory didn't apply to music— but I personally found it hard to swallow their argument.

It's what can happen to ideas outside of this registered, trademarked and copyrighted version of the world of creativity that I think is really interesting. On one hand, there's the argument that money makes our world go round, so if you're going to work at making something creative— whether that's a song, a story, a film, a piece of software, or whatever it is that you want to work with— you need to be protected from someone stealing your ideas and work and making money out of it. Because, as the theory goes, they will be making money that should go to you, as your reward for being the original creator. I don't think that's an argument that really holds water, and I'm going to try to illustrate why.

Daft Videos

On YouTube, a search for "daft punk, harder, better, faster, stronger" returns thousands of videos. This is a look at just a handful of the videos that have been made, that relate to this single song, and the creativity that has gone into them.

First, there is the official music video (currently still available in the UK, so perhaps Daft Punk aren't benefiting from the PRS licence collection?);

I haven't just picked that because I like the song, but also because it's interesting to see the way it's taken shape from this track by Edwin Birdsong- "Cola Bottle Baby."- now this is an example of music being the core of the video's value, and if you've listened to the Daft Punk track, this song should sound somewhat familiar;

I think my personal favourite video using the track is "Daft Hands." A very simple idea, but one which must have taken some time and effort to actually execute (planning, practising etc.) It's a perfect example of the sort of idea that anyone could do— in theory. (One definition of "genius" that I'm fond of is someone who does something where you say 'I could have thought of that'— the point being that you didn't.) Copyright laws mean that it's not actually legal to use someone's recorded music in what would be called a "derivative work", but it's clearly an idea that wouldn't work without that song, and it should be remembered that the point of copyright laws is to foster creativity rather than to suppress it. From a royalty perspective, the music isn't the core of the work (that is, if you were searching for the song, this wouldn't be what you were looking for) but at the same time, the video clearly wouldn't have the same impact if the music were removed.

Anyway, I think "Daft Hands" is an entertaining little clip, however you look at the ethics and legality of it;

In fact, Daft Hands was so popular it made it onto a US TV show, which someone subsequently videoed and put onto YouTube— so this is now an illegal copy of a TV show, showcasing a video that was made with an illegal copy of a song.

Kanye West's 2007 song "Stronger" from the album Graduation prominently features a (presumably authorised) sample of "Harder, Better, Faster, Stronger". So someone decided to make a "Daft Hands" video to go along with the Kanye West song (requiring more than mere dexterity— there's some neat editing trickery involved as well.) Or, to put that another way, he stole an idea from a video that stole a song, and stole a song that "borrowed" a part of the song that the first video stole, to make a video all of his own. (I think that just about "covers" it…)

As you'll probably see if you try to watch it, somewhat ironically considering the other videos that I've posted here, you can't actually watch that one as it was removed due to a copyright violation— presumably on behalf of Kanye West. Although you can still (at the time of writing) listen to the Kanye West song on YouTube (although you can't see the "official" video in the UK, or embed the video linked to above.)

Someone else took the original "daft hands" idea and turned it into a Flash computer game, so you can recreate Daft Hands without needing the manual dexterity (or getting pen all over your hands.) Here's a video of it in action;

Its also spawned other ways of playing with the same idea; there is a clip called Daft Bodies, using 2 girls' bodies instead of a pair of hands.

Then there's the women's rugby club who took the Daft Bodies idea and ran with it; presumably to an audience who weren't familiar with the original ideas that inspired their show.

Just trying to count the number of people involved in the creativity behind this video, let alone to calculate how any royalties should be shared between them, would be a very difficult task. For every piece of creative work (or, to give it a less legalistic name, "culture"), there is someone who originally created it from the cultural inspiration that surrounds them, and only a limited pot from which to pay them. Trying to figure out how a flat-rate licence structure for a video service that hosts some of this kind of video is virtually impossible.

Separating out the six hours of videos uploaded every minute into YouTube into these different categories of music would be an impossible task— on top of the already massive effort required to identify copyrighted music and video that is being uploaded to the site. (Not to mention the world of illegal and inappropriate content that needs to be vetted and managed.) Maybe most importantly, as this example hopefully makes clear, identifying all the artists involved simply isn't a job that could be done by an automated system— while YouTube's anti-piracy "fingerprinting" system might be able to identify a registered song, it would clearly struggle to recognize songs or samples used, or the video concepts that might have inspired them.

Perhaps you could argue that music should be kept separate, simply because it can be more easily fingerprinted and identified. But if different rules apply to different media, and human regulations are based on automated processes, then it illustrates that the copyright model is broken. If you can use a "song" but not a "track", or imitate a video freely, but not make a copy of a part of a video, then we're left with a set of rules that are not only impossible to enforce, but extremely difficult to even understand.

What is needed is a common, global solution that recognises everyone involved in the process, from creative to production to distribution to consumption, across different media such as music, video (TV, film and user generated content), print and online, and across the world. "The internet" has had— and still has— a massively disruptive influence across media, by providing a global, immediate, many-to-many platform for communication for the first time in history, and while the various industries have had decades, if not centuries, to build business models around one-to-one or one-to-many media from the written word to radio and television broadcasts, to telegram/telephone networks, the internet offers a disruptive alternative to each and every one of them which impacts on the businesses built around them.

At this stage, it's probably worth mentioning that while Google has profited very successfully from turning their Search engine into billions of dollars worth of advertising business,they are still struggling to find the best way to turn YouTube into a sustainable business, given that advertisers are reluctant to advertise their brands against user generated content while the costs of hosting and serving all those videos needs to be covered by someone. The videos I've posted here so far don't carry advertising, and don't make any money for Google— yet PRS for Music seem to be arguing that they should be paid an increasingly large fee for their "performances". But just because advertising has been a successful way to exploit Search, it doesn't necessarily follow that it will be the most successful way to make money from all online content.

As the Working Library blog has pointed out;

it is the [...] experience that brings people to the web, thereby making them available to the siren song of the advertisers; but it is the advertisers, who, in their effort to gain purchase over ever more significant corners of our brains, must distract and diminish the [...] experience lest they be ignored. The story goes that every so often an advertiser surprises with a particularly innovative method of annoyance, after which a certain amount of time passes and we learn—automatically, involuntarily—to tune them out.

I'd take this a step further— beyond the "automatic and involuntary", technology gives the "consumer" complete control over the content that they consume. If they want to strip all display advertising out of the web pages they see, the technology is easy to build to do so. If "content" distributors want their content to be viewed on the web browsers on PCs, Macs, mobile phones, games consoles and the devices that are currently the realm of science fiction but in a few years will be as normal as a morning newspaper (in the same way that something like WIkipedia on an iPhone has not only realised but arguably surpassed Douglas Adams' idea of the Hitch Hikers' Guide to the Galaxy),

But back to the Daft Punk song, and April last year, when this Simpsons video was posted. Not only using the Daft Bodies idea that took the Daft Hands idea (and of course, the Daft Punk song), but also taking the Simpsons characters. (By this point, I've lost count of how many counts of cultural influencers/copyright infringement this counts as;)

Not everything is about the Daft Hands video idea; sometimes, the music is the inspiration. In June 2006, this version was put together, putting a different spin on the track.

Or on a more straightforward level, there's the likes of "Groovy Dancing Girl"— simply a girl dancing to the song. Another example where the song isn't the core of the video's "entertainment", yet the video would have a very different impact if it were removed or changed.

Now all these are taking ideas from one song (not even a 100% original song), sharing them and running with them. None of them feature any advertising against them, yet they are all examples of the kinds of videos that the PRS for Music insist on a licence being paid to them for the privilege distributing this music over the internet to consumers in the UK. I'm not aware of anyone insisting that a fee be paid to the Daft Hands or Daft Bodies creators, to the dancing girl, software engineer or acapella bands whose works contribute to Google's products— and therefore, to Google's billions of dollars in advertising revenues. Perhaps someone should launch an industry body to lobby for their share of royalties? Perhaps that would defeat the point of what they worked on creating to freely share with the world.

Hopefully, this post will have given you a few things to bear in mind if you ever hear the argument that copyright laws and restrictions are necessary to ensure that people get paid, which is apparently essential to encourage artistic creativity. With the possible exception of Daft Punk (I say "possible", as the video hasn't been blocked by the PRS, perhaps they aren't covered by their actions— unlike Kanye West), none of these creative people got paid for their works. Yet all of them have contributed something unique.

But just to hammer the point home, I've saved the best until last; here's a set of videos that take a selection of YouTube videos and mixes them together to create a piece of musical video that is something entirely new: Thru-you.com For example;

While Kutiman (the remixer) credits and links to the videos he used on the YouTube pages the videos are hosted on, how you would even start to try to slice up and attribute some form of licensing costs for the artists and performers involved in a project like this, where the musicians and individual composers don't even have an idea of where their work would fit into the finished "content", is an enormous challenge— to put it mildly. But if the PRS for Music's licensing model is going to work in the future, especially for UGC platforms like YouTube, someone will have to figure out at the very least how to ask the question of how to quantify the creative input of each "artist", and then ensure that an appropriate proportion of the licence fee they collect goes to the artists involved. For every single video that is hosted on the internet. (Just doing it for the big name artists that pay a PRS membership fee isn't going to cut it in the wider world of music, video, theatre, animation and anything else that can be captured in a YouTube clip.)

Because, as the 43folders blog points out, "this is what your new Elvis looks like" This is the logical progression from the history of storytelling through the oral tradition to Shakespeare recycling stories, through to the 20th century progression of music, from the "floating lyrics" of blues and folk music, through to the recycling by artists like Elvis Presley, the Rolling Stones and Led Zepplin of "black music" into "white music" (and then back again by Jimi Hendrix), to the sampling, mixing, remixing and recycling of hip hop and dance music. Technology might have given it a new and exciting spin (and new and exciting channels of distribution), but the idea isn't anything new. It's as old as culture itself, and it's becoming increasingly clear that the 20th century's copyright and licence-based music industry's business model isn't "normal", but the exception to the rule.

Whether or how PRS for Music (or other licence/copyright based organisation) will rise to that challenge of changing the rules and monetising these forms of communication, art or storytelling in the 21st century remains to be seen…