The US Copyright Office solicited comments from the public about the operations of the Mechanical Licensing Collective. Those first round of those comments (called “initial comments”) were due in November and the second round of those comments (which are called “reply comments” because they essentially comment on the initial comments) were due December 20.
The Songwriters Guild of America filed initial comments and also filed reply comments. We’re going to post SGA’s reply comments in three parts and then we’ll post other commenters who we think made really good points (like CISAC and BIEM among others). Note that SGA’s comment includes a post by Chris Castle, but we are going to link to that post rather than reproduce it as you may have already read it.
All the comments focus on some central themes that seem to be on everyone’s mind which can be boiled down to oversight, oversight and more oversight. While the DLC controls the MLC’s purse strings, the MLC has been given largely uncontrolled power over songwriters that needs to be checked by the government on behalf of the governed. SGA’s comment can be boiled down to its motto: Protect Songwriters.
Reply Comments of the Songwriters Guild of America, Inc.
Re: Notice of Inquiry Issued by the United States Copyright Office Concerning the Orrin
G. Hatch-Bob Goodlatte Music Modernization Act of 2018 Titled “Blanket License
I. Introduction and Statement of Interest
These Reply Comments are respectfully submitted by the Songwriters Guild of America, Inc. (“SGA”), the longest established and largest music creator advocacy and copyright
administrative organization in the United States run solely by and for songwriters, composers, and their heirs. Its positions are reasoned and formulated solely in the interests of music creators, without financial influence or other undue interference from parties whose interests vary from or are in conflict with those of songwriters, composers, and other authors of creative works.
Established in 1931, SGA has for 88 years successfully operated with a two-word
mission statement: “Protect Songwriters,” and continues to do so throughout the United States and the world.
SGA’s organizational membership stands at approximately 4500 members, and through its affiliations with both Music Creators North America, Inc. (MCNA) (of which it is a founding member) and the International Council of Music Creators (CIAM) (of which MCNA is a key Continental Alliance Member), SGA is part of a global coalition of music creators and heirs numbering in the millions. Of particular relevance to these comments, SGA is also a founding member of the international organization Fair Trade Music, which is the leading US and international advocacy group for the principles of transparency, equitable treatment, and financial sustainability for all songwriters and composers.
These Reply Comments are meant to supplement the initial comments (“Initial Comments”) filed by SGA in its submission dated November 8, 2019 (see Attachment A), the full content of which is hereby repeated and reconfirmed.
The two most important points stressed by SGA in those Initial Comments were as follows:
1. The obvious and overwhelming necessity for inclusion of music creator information in
the Mechanical Licensing Collective’s (“MLC”) musical works database; and,
2. The equally imperative necessity for robust US Copyright Office oversight of the MLC’s
carrying out of its statutory duties, commitments and activities, especially regarding the
identification of unmatched works and royalties.
It was originally anticipated that SGA’s Reply Comments would focus chiefly on the recommendations submitted by other individuals and organizations as part of the initial round of inquiry. Intervening events concerning the activities of the Mechanical Licensing Collective (MLC) since SGA’s initial submission, however, have caused SGA to recalibrate its focus. Due to the importance of conveying to the US Copyright Office (“USCO”) and the Librarian of Congress some of the very concerning information that has come to light over the past several weeks, SGA believes its Reply Comments must now of necessity deal principally and forthrightly with those issues rather than with the critiquing of submissions filed by its colleagues.
II. Additional, Recent Developments Illustrating the Necessity for Close Scrutiny and Oversight of the MLC by the USCO and the Library of Congress
A. The Resignation of Recording Artist/Songwriter/Music Creator Activist David Lowery from the MLC, and the Process of Replacing Music Creator Members on the MLC Board and Committees Prior to its designation by the USCO and the Librarian of Congress as the organization that would serve as the MLC, the entity established principally by the major music publishing conglomerates and known as the NMPA/MLC conducted an extensive campaign aimed at gaining industry support for its MLC candidacy.
As part of that campaign, it and its affiliated music creator and publisher organizations frequently raised the participation of recording artist/songwriter/music creator activist David Lowery on the Unclaimed Royalties Oversight Committee (“URO Committee”) as potentially the most compelling proof of the entity’s commitment to ensuring that the voice of the independent music creator would always be heard.
Throughout his career, Mr. Lowery has been an outspoken advocate for the rights and interests of musical artists and creators. His mere presence within the NMPA/MLC’s proposed Committee structure legitimized for many the group’s candidacy among independent songwriter and composer groups. Those organizations might otherwise have objected more strenuously to an entity controlled in large part by the multi-national music publishing conglomerates being designated to serve as the MLC.
On July 5, 2019, the NMPA/MLC was indeed selected as the official MLC, and Mr. Lowery was simultaneously approved to serve on its URO Committee. Within a few short weeks after that announcement, however, Mr. Lowery resigned from the URO Committee and disassociated himself from the MLC with the statement that he “lacked the bandwidth” to carry out the watchdog role he had hoped to fill. Shortly thereafter, Mr. Lowery began to publish commentaries highly critical of certain decisions and activities being carried out by the MLC (and highly revealing of his apparent reasons for resigning), the gravity of which issues will be discussed further, below.
Mr. Lowery’s sudden and unexpected departure from the MLC and the URO Committee,
however, has raised even more immediate concerns within the independent music creator community, not only as to the reasons why he might have resigned, but also over the process by which he will be replaced. It is the position of SGA that a system which would allow the MLC board of directors (consisting of ten music publisher representatives and just four music creators) to select and/or approve replacement directors and committee members on behalf of the creative community, without meaningful input from creators or approval by the Librarian of Congress and the Register of Copyrights, is an absurdity. Such an unbalanced, unchecked process would virtually guarantee the removal of what little influence actual music creators have over future MLC activities and decision-making—a result wholly inconsistent with Congressional and Executive intent (especially as regards the crucial work of the URO Committee).
As SGA pointed out in its comments to the US Copyright Office dated April 22, 2019 concerning the original designation of the MLC (see Attachment B):
With the knowledge that ‘permanently’ unmatched royalties will eventually be
distributed on a market share basis to them, [the] largest music publishers will almost certainly do all they can to influence, hamstring and obscure the search process…. It will take highly experienced, non-conflicted and strongly independent-minded board members of the Mechanical [Licensing] Collective to resist this pressure, and to act in ways that fulfill their duties up to the mandated standards of fairness, transparency and accountability set forth in the Act.
The necessity for those characteristics in board members is amplified by the fact that the Mechanical Collective board may even override the recommendations of its own, statutorily established Unclaimed Royalties Oversight Committee if it sees fit to do so. It thus falls to the Register of Copyrights to serve as investigator, analyst and arbiter concerning this crucial, threshold issue of appropriate board and committee member selection as part of its evaluation of the competing candidates for designation as Mechanical Collective.
In honing in on its concerns regarding that specialized duty of the Register, members of Congress took the opportunity in both the Senate and House Reports to elaborate on their expectations regarding the qualifications of board and committee members proposed for service by any Mechanical Collective candidate, and the obligation of the Copyright Office under the direction of the Register to use its own, appropriate judgement in independently evaluating and verifying the credentials of those directors and committee members proposed. That Congressional posture was undoubtedly taken to ensure that all board and committee members of the Mechanical Collective possess the proper background and abilities to execute their duties to protect the rights of creators and other interested parties without conflict, pursuant to the terms of the Act.
Specifically, the applicable section of the Senate Report reads:
The Board of Directors of the new collective is required to be composed of individuals matching specific criteria. The detailed requirements concerning the overall framework of the Board of Directors of the collective and its three committees, the criteria used to select individuals to serve on them, and the advance publication of their names and affiliations all highlight the importance of selecting the appropriate individuals. Service on the Board or its committees is not a reward for past actions, but is instead a serious responsibility that must not be underestimated. With the advance notification requirement, the Register is expected to allow the public to submit comments on whether the individuals and their affiliations meet the criteria specified in the legislation; make some effort of its own as it deems appropriate to verify that the individuals and their affiliations actually meet the criteria specified in the legislation; and allow the public to submit comments on whether they support such individuals being appointed for these positions. It has been agreed to by all parties that songwriters should be responsible for identifying and choosing representatives that faithfully reflect the entire songwriting community on the Board.” (emphasis added) S. Rept. 115-339 at 4-5.
The otherwise identical section of the House Report concludes on the following note:
During the entire discussion of the legislation, it has been agreed to by all parties that songwriters should be responsible for identifying and choosing the songwriter representatives on the Board. The Committee strongly agrees with such an approach. (emphasis added) H. Rept 115-651 at 5.
Further, it seems of particular importance that the Executive Branch also regards the careful, post-designation oversight of the Mechanical Collective board and committee members by the Librarian of Congress and the Register as a crucial prerequisite to ensuring that conflicts of interest and bias among such members not poison the ability of the Collective to fulfill its statutory obligations for fairness, transparency and accountability. The Presidential Signing Statement, in fact, asserts unequivocally that ‘I expect that the Register of Copyrights will work with the collective, once it has been designated, to ensure that the Librarian retains the ultimate authority, as required by the Constitution, to appoint and remove all directors.’(emphasis added)
Pursuant to such clear guidance from both Congress and the White House concerning the selection and replacement of music creator board and committee members, SGA urges the adoption by the USCO of regulations mandating inclusion in the MLC by-laws of a process that includes meaningful music creator participation in the selection process without music publisher interference, with further review and approval by the USCO and the Librarian of Congress of all music creator candidates for MLC board and committee service. To do otherwise would be akin to empowering the wolves to select the watchdogs that purportedly guard the sheep. And that is a result that is not only emphatically in conflict with Congressional intent, but one that is also guaranteed to produce exactly the opposite, long-term results Congress and the Executive Branchwere seeking by passage of the Music Modernization Act (“MMA”): remunerative fairness and justice for creators consistent with the principles set down in Article I, Section 8 of the US Constitution.
To be continued in Part 2.
Songwriters Guild of America Lauds US Copyright Office’s Announcement of Strict Oversight Approach to the MMA Music Licensing Collective
Independent Music Creator Organizations Look Forward to Working with Copyright Office in Protecting Songwriter and Composer Rights
July 8, 2019, New York City–The Songwriters Guild of America, Inc. (SGA), the nation’s largest and longest established advocacy organization run solely by and for music creators, has announced its support for the strict oversight approach adopted by the US Copyright Office this week in naming the consortium led by the major, multi-national music publishers as the official Music Licensing Collective (MLC) under the Music Modernization Act. The Copyright Office made clear, as requested by SGA in recently filed comments, that it intends to take an active role in reviewing the activities of the MLC in light of the potential conflicts of interest inherent within a board of directors that will include major music publisher representatives.
Under the Act, the MLC is charged with identifying the rightful owners of hundreds of millions of dollars in unmatched streaming royalties. Those royalties that cannot be tied to particular owners, according to the law, will eventually be distributed to music publishers on a market share basis.
“Obviously,” according to songwriter and SGA president Rick Carnes, “under such circumstances you need an independent, outside overseer to make sure that those potentially conflicted board members who would benefit from the MLC doing a lax job in identifying the proper copyright owners do not utilize their positions to pursue unjust enrichment of their companies, despite the best efforts of songwriters, composers and truly independent music publishers on the board to achieve equitable results.”
In specifically citing SGA’s comments that meaningful oversight is an imperative under the law, US Register of Copyrights Karyn Temple concluded that “[t]he Copyright Office has been provided with ‘broad regulatory authority’ to conduct proceedings as necessary to effectuate the statute with the Librarian’s approval. In addition to the regulations that the Office is specifically directed to promulgate, the legislative history contemplates that the Office will ‘thoroughly review’ policies and procedures established by the MLC….The Office intends to conduct its oversight role in a fair and impartial manner; songwriters are encouraged to participate in these future rulemakings.”
SGA had noted in its comments that it was “far more concerned with ensuring that music creator rights are fully protected against conflicts of interest and impingements upon the rights and interests of songwriters and composers under all circumstances, than in supporting one or the other candidate vying to be selected as the Mechanical Collective.” The organization is satisfied with the Registers’ recognition of the Copyright Office’s oversight opportunities and obligations, and very much looks forward to working side by side with the Office on various issues concerning MLC policies and actions.
Carnes closed by stating, “for over 85 years, SGA has operated with a two-word mandate: ‘Protect Songwriters.’ And that applies to the rights of both American and foreign music creators. Congress intended, and the president’s signing statement confirmed, that the Copyright Office is to play a key role in pursuit of that same protective mandate. The Copyright Office’s stated willingness and obvious ability to accept that challenge is very encouraging, and SGA –with the welcome participation of many of its fellow songwriter organizations in the Music Creators North America (MCNA) alliance and MCNA’s affiliated, global music creator advocacy groups– intends to do all within its power to assist it in doing so.”
Carnes also noted that in the event that it proves necessary to take further appropriate action, for example, to make certain that proper diligence is exercised by the MLC in attempting to identify copyright owners of unmatched royalties prior to distributing “permanently” unmatched royalties, or to ensure that contractual royalty splits with songwriters and composers are honored by publishers after receipt of unmatched royalties, “SGA is ready, willing and able to do that.”
SGA is also studying the issue of whether the statutes’ placement of limitations on damages for those plaintiffs who bring copyright infringement lawsuits after January 1, 2018 against digital music distributors is actually violative of the Fifth Amendment’s “takings clause,” rendering that section of the Music Modernization Act unconstitutional and unenforceable.
“SGA and the entire, independent music creator community have our work cut out for us,” he said. “But we are fully prepared to do whatever is prudent to protect the rights and interests of songwriters and composers and look forward to working closely with the US Copyright Office and the entire music creator community in doing so.”
The member organizations of Music Creators North America, of which SGA is a founding member, have endorsed this statement.
Songwriters Guild of America, Inc.
210 Jamestown Park Road
Brentwood, Tennessee 37027