By Emmanuel Legrand
As the US prepares to vote for a new President and a renewed Congress, Music Week asked music industry professionals two questions: 1) What would be the three main copyright-related issues that you'd like to see fixed by the next President/Congress? And 2) And what is the likelihood that these issues will indeed be fixed during the next four years? Here are there answers.
Martin Bandier, Chairman/CEO, Sony/ATV
1) One of the things I'd like in terms of legislation would be to reverse what the Department of Justice has decided on 100% licensing and allow for fractional licensing. That is clearly one thing I'd want to see, and anybody who's in the licensing business would like that too. If no one is clear if BMI and ASCAP have the right to license a song, it is an unsustainable interpretation by the DoJ of what the consent decree says. I'd also like to see the continuation of us [music publishers] being allowed to selectively withdraw copyright and the was the major reason for going to the DoJ. It made no sense in 2014 when we first went to the DoJ that we should be restrained to a 1941 consent decree so that we could not license directly certain of our songs or catalogues to all the music users. It created a fair market place create a level playing field instead of procedure that pushes ASCAP and BMI to the lower end of the value of songs.
2) I don't know what can happen. Copyright legislation is difficult to pass; there are so many variable and unless everyone gets on board, it can take a long period of time. And during all that time, this would keep songwriters in a unenviable position in terms of what the music is worth. There are too many powerful forces that have tremendous resources and spend a lot of money on lobbying. I don't know how easy it would be to get legislation at all, but we have to try. ASCAP is supposed to take the lead and will work with the NMPA and with other songwriters organisations so that everyone is on the same. But it is not going to be easy.
Richard Burgess, CEO, A2IM
1) Our three main issues are: Terrestrial radio rights for sound recordings; section 512 [of the DMCA] on notice take down needs to be fixed; and we need to sort out the Department of Justice's consent decrees and resolve the issue of 100% licensing.
2) Based on past history, there is no chance that these issues are going be fixed, but where we could make progress is if all the parties in the music industry agree among ourselves, and if we can come to agreement with the tech industry, but we are a long way from that. In the end, it comes down to money and how much money you can spend on lobbying. Take terrestrial radio. It is offensive that artists and labels don't get paid when music played on radio. The USA are out of line with the rest of the world and in line with Rwanda, China and North Korea. That because of the lobbying power from the other side [the National Association of Broadcasters], and the benefits they can offer to Congress people. We have to be realistic with what we can achieve. It is hard to go against them. The worst part it that it is costing America and American artists, because we are not getting our reciprocal rights an money [from neighbouring rights] are not flying back into America.
Chris Castle, Attorney, author of the blog Music-Technology-Policy.
1) The top three issues to me would be somewhat US centric: ASCAP and BMI consent decrees; compulsory mechanical licenses; and DMCA reform. Each has a minor fix and major fix. Two of the three relate to songwriters who are probably the most highly regulated workers in US history.
2) Given that Google employs more lobbyists than there are Members of Congress, it seems unlikely that any legislation will pass the Congress that Google doesn’t want. Nobody is guarding the guardians and that promises to hold true regardless of who is in the White House. It will take a major grassroots effort to accomplish real change. The #irespectmusic campaign is a great start down that path.
David Israelite, CEO, NMPA
1) We believe that there are many issues that are ripe for change. First, ASCAP and BMI's Consent Decrees. The Department of Justice is out of control in regulating a business it has no reason to regulate. It is time for Congress to look at why the government continues a consent decree that never ends. We'd like rate standards to be set on the basis of a willing buyer and a wiling seller. We also could work with the tech community to fix the licensing system and that could be ripe for consideration.
2) There is a lot of work coming up on these issues. Copyright legislation is very hard, there are different interest and it can get messy. Next Congress will see the last two years of Bob Goodlatte as chairman. He has been engaged in long process so we are hopeful that when he decides to act we would have a chance to remove government regulations.
Elizabeth Matthews, CEO, ASCAP
1) Music creators today face extreme hurdles in their ability to seek a fair value for their work thanks to music licensing laws that have not kept pace with the advent of new technologies. We need to modernize the 75-year old consent decrees that govern how ASCAP and BMI operate to ensure a strong collective licensing system that continues to protect music creator rights while providing access to the music that we all love. We need a set of laws that give the PROs and our songwriter, composer and music publisher members more flexibility to adjust to wherever the marketplace takes us.
2) ASCAP is proactively working closely with BMI, other music industry stakeholders and members of Congress to develop the framework for addressing these issues. This is not the first regulatory hurdle we have faced and it certainly will not be the last. We have many allies in Congress and we are hopeful that these critical modifications will be addressed in order to protect the future of songwriting.
David Lowery, songwriter/performer/activist
1) DMCA reform, Take Down Stay Down type scheme; An audit right for compulsory licenses; An antitrust exemption for PROs (sports leagues have this, farmer co-ops, unions).
2) Clinton wins. No doubt. Clinton has subordinated copyright to tech policy. It's right there in her tech platform. Google/Eric Schmidt is deeply involved in her campaign. Google will block meaningful reform by exerting influence on Clinton. No hope.
Blake Morgan, songwriter, performer, label owner, founder of the movement #IrespectMusic
1) Pass the Fair Play Fair Pay Act, ensuring artists would receive pay for (all forms) or radio airplay for the first time. Pass the Songwriter Equity Act, ensuring songwriters would receive fair market value for their work. Increase the budget for the National Endowment for the Arts by a factor of 40 (not a typo), ensuring the United States would then at least spend as much on the arts as Germany.
2) The likelihood these issues will indeed be fixed are 1: 90%; 2: 90%; 3: 0%. So, two out of three ain’t bad. :)
Keith Kupferschmid, CEO, Copyright Alliance.
1) We really need to modernise the Copyright Office. Groups out there are trying to highjack and make it a policy issue. It is not about politics; it is about having the tools to service the community. We hope that the USCO will have its own budget, staff, IT system and that the person who runs the Office should be a presidential appointee. We need a small claims tribunal. Small creators are individuals who have rights but no remedies because cannot they afford to go to court. This would solve the problem. And we need to work towards voluntary agreements with all stakeholders, outside from waiting for the Congress to find agreements. One such agreement could be on improving DMCA take down notices.
2) I am hopeful that all three things can happen within the next four years, and maybe more.
Neil Portnow, President and CEO, The Recording Academy.
1) The one consensus area in copyright is music licensing: all parties agree it's broken, and Congress' own advisor, the Copyright Office, produced a comprehensive recommendation for a fix. Within music licensing, first and foremost, we need to close the corporate radio loophole. While there are many important fixes needed to ensure fair rates, this is a case where there's not even a right. Also important that we bring songwriter regulations to a fair market standard by updating the mechanical rate standard and performance royalty consent decrees. Finally, we must fix the outdated and impractical "notice and take down" process. It takes creators away from their work and forces them to police the entire internet instead.
2) The entire copyright community has great confidence in Chairman Goodlatte and believes that after so many years of study, he will use the 115th Congress to pass meaningful copyright reform. He is someone that all sides trust to be an honest broker, so at this point, progress is entirely in his hands.
Ann Sweeney, SVP of Global Policy, BMI
1) Our legislative agenda is dominated by the Songwriters Equity Act. It contains only two provisions, which makes it a narrow bill. It would result in amending sections 114 and 115 of the Copyright Act and would give broader authority to judges to consider all evidence when determining what the appropriate rates should be. It is important for for BMI because it would enable rates to be set from a position of full information of what the market value is. The Bill exists in current legislative session and it has both Democrats and Republicans supporting it in both chambers. And there is the reform of the Consent Decrees. One possible path is to pursue legislation for consent decree reform. We will determine over the next few months if we need more work done on legislative level.
2) The time frame for this to happen is probably the next two years, because of the leadership of Chairman Bob Goodlatte. He stated consistently that he'd like to lead copyright reform during his leadership. We are optimistic and we are dedicating people and resources to do all we can because these issues matter the most to songwriters, publishers and to the global music community. We are as optimistic as can be.
[Read also: US elections: The music community outlines its agenda]