Garth To Kill A Mockingbird – Reasons To Be Pro-Choice

(Originally published August 21, 2014 in Nekst.biz)

You probably already know this, but Garth Brooks is reportedly the best-selling albums artist of all time in the Unites States during the Sound Scan era (since 1991), and the third best-selling in the U.S. overall (behind the Beatles and Elvis). That order may be about to change. According to his press releases, Garth is about to allow his music to be purchased digitally for the first time. Up until now, he had refused to make his recordings available for downloads because he said he wanted consumers to buy albums, not individual songs. He could do that. He had that choice. Not because he was Garth, but because, as owner of those recordings, he had that right.

Read the rest of the article at: http://www.nekst.biz/garth-kill-mockingbird/

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Dr. Seuss, Music Licensing, and The Message of the Zax

(Originally published July 10, 2014 in Nekst.biz)

Music licensing is messed up. While that has been my opinion for a while, it became painfully clear during the month of June when I was privileged to participate in three different round table discussions on music licensing sponsored by the U.S. Copyright Office, taking place in Nashville, Los Angeles and New York.

After leading the Nashville and LA sessions, General Counsel and Associate Register of Copyrights in the U.S. Copyright Office, Jacqueline Charlesworth, made reference to a humorous, but very poignant, book by Dr. Seuss to start the New York sessions. I remember reading the story as a kid. It’s called The Zax.

Read the rest of the article at http://www.nekst.biz/dr-seuss-music-licensing-message-zax/

 

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Understanding The Songwriter Equity Act of 2014

(As originally published April 14, 2014 in Nekst.biz)

You may have heard about H.R. 4079, introduced on Feb. 25, 2014, which proposes to amend the current U.S. Copyright Law. “The Songwriter Equity Act of 2014” by its very title insinuates it helps songwriters. Public support from entities such as ASCAP, BMI, SESAC, NARAS, NSAI and NMPA, strengthens that position. But how exactly does the new bill propose to help, and what, in all likelihood, will happen next?

First, let’s look at how this came about. Congressman Doug Collins, a freshman republican from Georgia, introduced the bill. I met Mr. Collins and talked with his staff in his D.C. office the day after it was introduced. According to Collins, “My constituents expect me to find the ways government is in the way of people producing what they can and take down those barriers. The SEA was an interesting, somewhat unexpected way to do that. Here’s a case in which government weighed in back when player pianos were a main way music was distributed and they haven’t changed with the times. Songwriters have paid the price for that.”

So what barriers do Collins and company hope to take down in order to “ensure fairness in the establishment of certain rates and fees?”

Read the rest of the article at http://www.nekst.biz/copyright-understanding-songwriter-equity-act/

 

 

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The Next Copyright Act – Get Rid of Compulsory Licenses? (Part 1)

I remember reading a story about habits passed down through a family for generations. The story went something like this. A newly married wife was cooking a roast for the first time. In preparing the roast, she cut off both ends of the meat before she put it into the pot to cook, just as she had seen her mom do. Then she got a little curious about what this actually did in the cooking process. So, she called her mom to ask, only to be told that her mom didn’t really know, but that this was how she had been taught by her mom to prepare it. So the young wife then called her grandmother and asked the same question. Unfortunately, she got the same basic answer of not really knowing the reason, but that’s also how she had been taught by her mom. The young girl’s great grandmother was still alive, so she asked the question again, and was quite surprised by the answer. The great grandmother’s reason for cutting off both ends was simply because the only pot she had to cook with in those days was too small to hold an entire roast.

It would be an eye-opening experience to discover the original reasons behind some of the habits and procedures we routinely exercise in our daily lives and professions. One of those I’d like to address here is the Compulsory License in the U.S. Copyright Act, which I believe is a commonly misunderstood portion of the current copyright law.

The Compulsory License was first introduced in the 1909 U.S. Copyright Act, section 115, at a time when the “mechanical” license was primarily intended to be used for piano rolls, (although phonorecord cylinders and discs existed, but were not yet popular). What was the fundamental objective for the Compulsory License? Congress wanted to prevent a single entity from monopolizing the piano roll market by buying the exclusive rights of certain songs. The law also set a rate of two cents for these licenses, and defined a number of requirements, or hoops as I’ll call them, for the user to jump through in order to qualify for this Compulsory License.

Think about this. A license scheme established over 100 years ago to prevent monopolistic practices for physical piano rolls is the same license scheme being used today for much of the digital cloud streaming of music. Either Congress was extremely smart and visionary, (I’ll let you answer that on your own), or we as an industry have been unable or unwilling to recognize and react to significant changes which slowly occurred over the century, and have allowed ourselves to be lulled into accepting this as the best way to license these kinds of uses…or to cook this roast.

According to a 2004 statement by then Register of Copyrights Marybeth Peters to the IP Subcommittee of the House Judiciary Committee, she says of the Compulsory License that, “the use of the license appears to have again become almost non-existent; up to this day, (in 2004) very few notices of intention are filed with the Copyright Office”. It is clear that the practice throughout the years had been that most users would negotiate a mechanical license, rather than jump through the numerous legal hoops defined in Section 115 for such a compulsory license. In a 1961 report by then Register of Copyrights Abraham Kaminstein, leading up to the changes we now know as the 1976 Copyright Act, Mr. Kaminstein suggested that monopoly didn’t seem to be much of a concern, and perhaps the compulsory license should be repealed. But the copyright owners didn’t pursue that change, and instead opted for an increase in the applied rate, from 2 cents, to 2 and three quarters, with increases over time. (The rate is 9.1 cents today). Yet, in practice, most copyright owners only used this established “statutory mechanical rate” as a maximum rate when offering negotiated licenses. (I wrote about this in detail in an earlier blog titled, “The Standard U.S. Mechanical License Ceiling Is No Longer 9.1 Cents”). I personally think copyright owners missed an opportunity to establish a better license practice and model.

We must also be reminded that other types of uses of music do not have a compulsory license, such as print uses and synchronization uses, and the monopolization of these uses did not seem to become a problem.

The original compulsory license was for mechanical uses, which today means recorded sales, and includes digital downloads. In 2009 and 2013, the Copyright Royalty Judges confirmed the statutory rate under the compulsory license for physical products and permanent digital downloads at $.091, defined a ringtone rate of $.24, and added ten additional rates for mechanical uses known as Interactive Streaming and Limited Downloads.  All of these rates are exclusively for uses that fall under the Compulsory License umbrella of Section 115 of the Copyright Act. They do not, and I repeat, they DO NOT, define rates for any of these uses where the license does not qualify as Compulsory under Section 115. And as a reminder, one of the many hoops a licensee must jump through in order to get a compulsory license is to send a Notice of Intention to obtain a Compulsory License to the owner BEFORE any distribution of the recordings, whether physical or digital. The law is clear that, in the absence of this prior notice, the licensee “forecloses the possibility of a compulsory license and, in the absence of a negotiated license, renders the making and distribution of phonorecords actionable as acts of infringement.” Bottom line, if a user fails to get a compulsory license before distribution, they can NEVER qualify to get a compulsory license for that same song and use. Period. If we took a close look at how many of the songs appearing on various digital interactive and limited download services were properly licensed within the rules, I think we would be astonished at how many fall short.

Today, Compulsory Licenses are being used for two primary functions, neither of which are the original objective of the license, and neither of which, in my humble opinion, are necessary. One is as a blanket type license for digital interactive streaming or limited download services. The second is for small, mostly non-commercial uses, where the user can hire a third party to secure a mechanical license on their behalf for a fee. Neither of these types of uses, in the absence of a Compulsory License, would threaten monopolistic practices. And interestingly enough, a license to use the accompanying sound recording in the digital uses must be negotiated through a “willing seller – willing buyer” arrangement. Are we trying to force digital services into a license scheme that is cumbersome and next to impossible to get right for 100% of the repritoire? Are we trying to force a 105 year old license scheme to work for our current “cloud” based digital listening preferences? Is it time to find a more effective method of cooking the roast?

I think so.

We do need some type of blanket license arrangement. We want legitimate digital music distribution models to work. But on the other hand, as copyright owners, since the law says we have the right, we should also have the ability to keep our songs off certain services if we so desire. Record companies and artists have the right to say “no” to their recordings being available, so why shouldn’t song owners have the same right, since that is an original objective of the copyright law?

It is always easier to identify problems rather than suggesting solutions, and I believe the industry is screaming for solutions. However, in order to set the table, I want to first simply identify some of the more obvious problems which I believe need to be understood before we can explore solutions. I’ll introduce some of those issues in the next blog, and as always, I am interested in your comments.

John Barker

ClearBox Rights, LLC

“We must look for opportunity in every difficulty, instead of being paralyzed at the thought of the difficulty in every opportunity.” – Walter E. Cole

© 2014 John Barker. All rights reserved. Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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The Next Copyright Act – A Shortened Term?

Should the current term of copyrights be shortened? That is a rather significant topic that has been brought up in discussions over the last 10 months after Maria Pallante (U.S. Register of Copyrights) presented her “The Next Great Copyright Act” in March of 2013. In a section of her presentation titled “Thinking A Little More Boldly”, Ms. Pallante introduces the idea by saying, “Perhaps the next great copyright act could take a new approach to term…for the purpose of injecting some balance into the equation. More specifically, perhaps the law could shift the burden of the last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner. And if they did not, the works would enter the public domain.”

Ouch. I think I have some problems with that on the surface. But first, let’s break it down and make sure we’re all on the same page. Is this really a call to shorten the copyright term, or is it more an attempt to motivate owners to keep records up to date for the benefit of the public?

Historically, copyright terms have only increased in prior copyright law revisions. The Copyright Act of 1909 defined the term of protection for 28 years, and added an additional 28 years if the song was “renewed” properly. The Copyright Act of 1976 then extended pre-1978 copyrights by adding 19 years to the renewal period, for a total of 75 years of protection. It also defined post-1978 copyrights as life of the author plus 50 years. The 1998 Copyright Term Extension Act increased the term another 20 years to a total of 95 years for pre-1978 works, and life plus 70 years for post-1978 works.

Even after the 1976 Copyright Act, works were inadvertently thrown into the public domain through inaction, or even wrong action, due to requirements that were difficult for many owners to fully understand. Years ago, I was personally involved with a pre-1978 copyright that was found to be in the public domain simply because a copyright notice had not been correctly affixed to a print publication by the owner during its first 28 year term. And in multiple cases, I’ve worked with pre-1978 copyrights that entered the public domain because the renewal application had either not been filed in a timely manner during the 28th year, or the form was simply not filled out correctly. The law was then updated to prevent some of these “premature” losses to the world of public domain, including a change effective 1992 where renewals were considered automatic and valid even if an actual renewal application was not registered in the Copyright Office. There are some benefits defined in order to entice owners to actually file paper renewal registrations (Circular 15, Renewal of Copyright), but the benefits were not that significant, and didn’t seem to make much of a difference in motivating owners to file.

So what influenced congress to change this law requiring owners to file an actual renewal application? One was a testimony by Jacqueline Byrd, the widow of songwriter Robert Byrd, author of “Little Bitty Pretty One”, a 1957 hit song, who told the legislatures she intercepted a letter from the Copyright Office to her husband, who was dying of cancer at the time, that the office had not received a renewal application for his hit song in the 28th year, and that royalties will stop being paid because the song is now in the public domain. Mrs. Byrd never told her husband, who died shortly afterward. Had the song been renewed properly, she and her four children would have been able to receive royalties on the song through 2037. Lawmakers made the right decision, and got rid of the necessity of timely registration that many times had to be understood and completed by family members who had no idea of this critical copyright requirement.

Think about the fact that the actual owners of a copyright nearing its last 20 years are not the authors, but likely the spouse, children, or even grandchildren. These people simply don’t know what needs to be done. And why, or how, would they? We’re potentially putting an undue burden of understanding technical and complicated registrations on a person who just received ownership in a copyright either by will, or even in the absence of one, simply by the death of a spouse, parent or family member. How would we expect them to understand something that most publishing industry people struggle to grasp effectively?

In a statement published January 17, 2014 by Pamela Samuelson, Faculty Director of the Berkeley Center for Law & Technology, she referred to consensus during a 2013 conference entitled “Reform(aliz)ing Copyright for the Internet Age”, where the speakers concluded that “the formalities regimes of the past – the “traps for the unwary” – should not be reintroduced, but that a formalities regime of the future should take full advantage of the technological advancements that can functionally achieve the same (or better) results of past regimes without imposing a significant burden on creators or owners.” I like that phrase – “the traps for the unwary”. We were able to get rid of some of those “traps for the unwary” over the last few decades. Let’s not go backward.

But maybe this notion introduced by Ms. Pallante is not so much to shorten the term, but rather an attempt to motivate owners to keep records up to date for the benefit of the public. After all, she says, referring to this section, “We believe further consideration of this proposal…would serve to improve the functioning of our copyright system.” I sat down with a group of attorneys and key staff in the Copyright Office a few months ago and brought this very issue up. The response I received, although a little vague, seemed to confirm the thought that this is more about motivating heirs to keep records up to date, as well as streamlining Copyright Office operations, rather than promoting shorter terms.

Now, I believe in motivation. A carrot on a stick is not a bad strategy. But this seems more like a grenade on your butt. Rather than motivating copyright owners to move forward and receive a reward, they would be pushed from behind (blindly in many cases), and the result could be end of life (so to speak) without even realizing there’s a bomb back there. I think we can figure out a better way rather than introducing “traps for the unwary” with the consequences of “end of life”.

Now hang with me as I introduce one more thought into this discourse.

What truly motivates people? One of the obvious answers is money. If I move to a new home, I realize I need to update my information to people or companies who have my address on file. But the first ones I’m going to be motivated to update would be those who send me money. I don’t want to jeopardize that pipeline. I’ll then try and remember everyone else who has my information, but I’ll probably construct that list based on mail I’ve received in the last year or so; bills, memberships, notices, etc. The entities I’ll probably miss are the ones I haven’t heard from or dealt with in years. I’ve forgotten that they have my information, because we haven’t interacted with each other in ages.

Most song owners receive income for active songs on a somewhat regular basis. Those are the first “sources” they would be motivated to notify of a change in address, ownership, or payment methods. How often do these people correspond in any way with the Copyright Office?

The Copyright Office is an entity that attempts to keep valuable information up to date. However, it is not a “dynamic” entity in that it does not communicate with the copyright owners on a regular basis. While it may attempt to maintain dynamic and up to date records, much of what exists is “static” information. If this information is filed one time, and remains the same for 95 years, there is no need for further communications. The dynamic entities are those who ultimately make royalty payments to the owners. So would we be better served if this information was retained and maintained by a kind of “dynamic” entity? When the U.S. Copyright Office was first established in the late 1800’s, it was a central place where claims were recorded and physical copies of information were collected and maintained. Now that much of that information is digital and maintained “in the cloud”, do we still need to follow the old, physical, and static, model to maintain up-to-date ownership information?

A recommendation included in the statement published by Pamela Samuelson and The Berkeley Center for Law & Technology (mentioned above) suggests, “The Copyright Office should transition away from being the sole registry for copyrighted works and toward certifying the operation of registries operated by third parties, both public and private.” It further suggests the Copyright Office set the standards and specifications for such private registries, with the hope that this would create an environment of competition which could “lead to lower costs and innovations in registry design.” While I may not agree with everything Ms. Samuelson’s group suggests, this one is interesting.

The bottom line for me is the new copyright law should NOT introduce new “traps for the unwary” with the consequences of “end of life”, but rather open up the possibility of new “dynamic” registries, under the standards and specifications of the Copyright Office, and introduce new ways to motivate owners to keep registrations and information current. That’s more of a direction than a solution at this point, but that’s where the wisdom of the crowds comes into play.

What do you think?

John Barker

ClearBox Rights, LLC

© 2014 John Barker.  All rights reserved.  Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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The Copyright Laws…They Are A-Changin’

It is happening right now, at this moment. There is no denying it. The U.S. Copyright Law is going to be changed, and the process of review and comments has begun. Are you aware? Are you up to date? Would it impact you? Do you care?

If we are in any way affected by copyright law, I believe we have a responsibility, at this moment, to engage in the process. U.S. lawmakers, the U.S. Copyright Office, and industry leaders, are interested in what we, the stake holders, think. They are asking, they are inviting, and they are concerned. Are we ready to respond, or are we content with letting the changes occur without getting involved? If we don’t have the will to change it, we don’t have the right to criticize it.

This past week, The Copyright Office, on request of the House Judiciary Committee, was scheduled to take part in a roundtable discussion with music leaders in New York. Rep. Bob Goodlatte, the chairman of the House Judiciary Committee, has held six hearings on the Copyright Law since this past March. According to Maria Pallante, the Register of Copyrights, this is the most activity in copyright hearings “in a very, very long time.” Maria Pallante has presented her own call to copyright change in a lecture delivered on March 4, 2013 at Columbia University, called “The Next Great Copyright Act”, which she also presented to the House Judiciary subcommittee on Intellectual Property a few weeks later. Have you read it? Do you know what some of those changes she is exploring are? (You can read her full lecture at http://www.copyright.gov/docs/next_great_copyright_act.pdf ).

The purpose of this blog for the coming months will be to dive into many, and hopefully most, of the intricate issues the music industry will be dealing with in copyright reform. Oh wait…I’m not going to use the word “reform”. Ms. Pallante has said numerous times that neither she, and to her knowledge, no one in Congress, is calling this “reform”. It’s an update. We’ll see. I believe big changes are necessary, and perhaps some things need to be completely eliminated, while other sections need to be started from scratch. The first Register of Copyrights, Thorvald Solberg, said in 1926, “there comes a time when the “subject ought to be dealt with as a whole, and not by further merely partial or temporizing amendments.” I think we’re now at one of those times.

I was able to spend most of a day last month (December) with Maria Pallante during a visit to Nashville, and I will tell you I found her to be a very smart, capable, dedicated, and forward thinking leader. I believe she is going to prove herself to be an effective “change agent” related to copyright law. She says she believes the updated law needs to be “forward thinking but flexible. It should not attempt to answer the entire universe of possible questions, but, no matter what, it must serve the public interest. Thus, it must confirm and rationalize certain fundamental aspects of the law, including the ability of authors and their licensees to control and exploit their creative works, whether content is distributed on the street or streamed from the cloud.”

The goal of this weekly blog is to provide succinct information, definition and updates on copyright law issues, to discuss specific pain points in the law, and kick around ideas of change. It is to motivate forward thinking stake holders to get engaged, to gather intelligent, new and creative ideas from those people, and to provide a focused forum, or “crowd source” medium, to discuss improvement of the law. It is also to establish the Nashville community as a very real and respected voice in the process.

We’ll cover ideas such as performance royalties for sound recordings in terrestrial radio; whether or not we need a compulsory license; whether the life of post 1978 copyrights should be decreased without additional registrations (an idea already floated by Ms. Pallante); and new license models for the digital space. I have a list of over 40 timely and relevant topics that are ready to be teed up to discuss.

While genuine copyright change is clearly a daunting endeavor, the bell to begin has been rung, and it’s time for critical thinkers to step into the game. Spread the word. We need you. And we need you now. Let’s don’t just leave this to a few individuals in Washington.

“None of us is as smart as all of us.”Chinese proverb

John Barker

ClearBox Rights, LLC

(In order to better keep up to date and engage in this process, you may sign up to automatically receive this blog when it is published weekly, by clicking here https://clearboxrights.wordpress.com/ and entering your email address in the top right and press “Follow”).

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Great Day in Nashville with Maria Pallante, Register of Copyrights

Maria Pallante, the current Register of Copyrights, along with Steve Ruwe, an attorney in the Copyright Office General Counsel’s Office,  came to Nashville yesterday (Dec. 17th) to meet with a number of Nashville’s leaders in publishing and copyright. Maria presented parts of her vision for “The Next Great Copyright Act”, as well as addressing other areas of the Copyright Office.

She said a lot of great things, and was careful to NOT use the word “reform” when talking about what is being discussed in committees related to the Copyright Act.

She also mentioned, but did not dwell on, the idea of shortening the life of post 1978 copyrights to life plus 50 (rather than 70), unless the heirs update their registration with the Copyright Office. Not sure how I feel about that one.

Her complete speech from the Manges Lecture “The Next Great Copyright Act” can be viewed at the link below:
http://www.copyright.gov/docs/next_great_copyright_act.pdf

Now the push is to get DC to focus on Nashville to participate in a future round-table discussion related to changes in the law.

The sponsoring organization, The Copyright Society of the South, has posted links on their website for those of you who are interested in connecting for various newsletters, to read some of the mentioned lectures, or to connect with various legislative groups involved in the Copyright Law review process.

The Copyright Society of the South’s website is www.copyrightsocietyofthesouth.com.

Also, some discussion has begun on the Copyright Society’s LinkedIn page. Whether you were a part of yesterday’s presentation, or missed it and would like to see what others are saying, you may click below to join the discussion. Make sure you join the LinkedIn group.

http://www.linkedin.com/groups/Copyright-Society-South-4830259?gid=4830259&mostPopular=&trk=tyah&trkInfo=tas%3Acopyright%20society%20of%20the%20south%2Cidx%3A1-1-1

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