The US elections will take place on November 8, 2016. On that day, US citizens will not only elect a new President of the United States but also renew Congress, as a total of 34 Senate seats (out of 100) and all 435 House of Representatives seats are up for election.
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 their answers.
Martin Bandier, Chairman/CEO, Sony/ATV
One of the things I'd like would be to reverse what the Department of Justice has decided on 100% licensing and allow for fractional licensing. 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 that 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, instead of procedure that pushes ASCAP and BMI to the lower end of the value of songs.
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 that time, this would keep songwriters in an 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 (National Music Publishers' Association) and with other songwriters organisations so that everyone is on the same page. But it is not going to be easy.
Richard Burgess, CEO, A2IM
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.
Based on history, there is no chance that these issues are going be fixed. It comes down to money and how much 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 is 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 and money from neighbouring rights is not flying back into America.
Chris Castle, Attorney, author of the blog Music Technology Policy.
The top three issues to me would be somewhat US centric. 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.
ASCAP and BMI consent decrees: The major fix would be to acknowledge that the consent decrees are about as anachronistic as the piano roll and for the government to simply dismiss these antitrust cases and allow ASCAP and BMI to issue complete licenses for streaming services. And as this new rule [of imposing "full work" licenses] was created out of whole cloth by the Obama administration through an extraordinarily Kafkaesque process, it should be possible for a new President to simply extinguish it.
The government needs to take responsibility for the administration of its compulsory mechanical license. This is more than just setting a fair rate (something the government forgot to do between 1909 and 1978); it also involves allowing songwriters the ability to conduct a royalty examination of music users and creating some mechanism for music users to lose the right to rely on the compulsory license when they abuse it or fail to license substantial numbers of songs. The current compulsory license is silent on both these issues. That’s the minor fix, but it would require Congress to act. But can you really blame a music user who abuses the system and simply doesn’t obtain compulsory licenses for thousands or hundreds of thousands of songs if there is no downside for failing to do so - except a federal copyright infringement lawsuit that only a handful of songwriters can afford to pursue?
DMCA reform: The problems we have with safe harbours are not uniformly applicable to all who could qualify for it. For example, the telecoms who came together in the Copyright Alert System are not really the problem. The problems can be attributed to one large player in the DMCA game - Google’s legacy businesses like Search and YouTube. Google routinely abuses the safe harbours both in the US and in Europe. There’s no reason to lump all safe harbour users together. Rather than abolish the safe harbour altogether, it makes more sense to ally our interests with those of the participants in the Copyright Alert System and exclude companies like Google from the safe harbour. In addition to the fundamental problem with the safe harbours as applied to Google, the ruling in the Lenz case that anyone sending a DMCA notice needs to essentially get a legal opinion on whether the offending use fits the fact-dependent definition of “fair use” at US law needs to be extinguished. The average artist has no idea what the court’s idea of “considering” fair use means and can’t afford to hire a lawyer to tell them.
Elizabeth Matthews, CEO, ASCAP
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 modernise the 75-year old consent decrees that govern how ASCAP and BMI operate to ensure a strong collective licensing system. 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.
ASCAP is 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
Clinton has subordinated copyright to tech policy. It's right there in her tech platform. Google chairman Eric Schmidt is deeply involved in her campaign. Google will block meaningful reform by exerting influence on Clinton. No hope.
Keith Kupferschmid, CEO, Copyright Alliance.
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 they cannot afford to go to court. This would solve the problem.
Neil Portnow, President and CEO, The Recording Academy.
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, 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 it’s 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 out-dated and impractical "notice and take down" process.
The entire copyright community has great confidence in [House of Representatives' Judiciairy Committe] 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.