September 22nd, 2017
Content Creators Coalition (c3) Warns Congress About Artist And Songwriter Opposition To “Transparency in Music Licensing and Ownership Act”
Washington, D.C. – The Content Creators Coalition (c3) today sent the following letter to the leaders of the House Judiciary Committee warning that consideration of H.R. 3350, the so called “Transparency in Music Licensing and Ownership Act,” would spark a backlash in the artist community and could derail the Committee’s work to create a consensus copyright reform legislation:
The Honorable Bob Goodlatte, Chairman
The Honorable John Conyers, Jr., Ranking Member
House Committee on the Judiciary
2138 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Goodlatte and Ranking Member Conyers:
As an artist and songwriter-run advocacy organization, we write to express our strong opposition to H.R. 3350, the “Transparency in Music Licensing and Ownership Act.” Recognizing the importance of this issue to our constituents, this letter is signed by every member of our Executive Board.
The Content Creators’ Coalition (c3) strongly supports the Committee’s continual efforts to find consensus around broader copyright reform and to ensure that music licensing is more transparent, particularly to third party beneficiaries of recording contracts. There is little dispute among stakeholders that music licensing, in particular the licensing of musical works, is needlessly opaque. Publishers and record labels agree on this point, as do songwriters, performers and musicians, as well as music servicers and businesses who use music and musical works. There is clearly an opportunity for the Committee to find consensus on these issues.
However, H.R. 3350 does not further efforts to reach consensus – instead, it represents a one-sided approach that would fail to simplify music licensing. We are deeply concerned about the bill’s onerous registration system and financial penalty (forfeiture of statutory damages and attorneys’ fees) for songwriters or publishers who fail to register their works in a new database, created and run by the government.
As a matter of principle, an intellectual property right, like any other property right, should not be subject to forfeiture and the law should help creators understand and protect their rights – not create obstacles courses for them to navigate on pain of losing control over their creative work. This bill, by contrast, actually incentivizes the appropriation of creators’ work based on technical or other often innocent shortcomings, removing key deterrents that should discourage music services from doing so.
The record keeping mandates in the bill are voluminous and incredibly vague. Terms like “catalog number” are undefined and could mean a number of things. Other requirements are intricate, time consuming and in many cases, appear impossible to satisfy. How is an artist supposed to register every album on which one of her songs has been recorded, including recordings by other artists they may not even know about? If these requirements are time consuming and uncertain for successful and well-known songwriters and publishers, they will be impossible for independent songwriters.
Most importantly, the bill also thwarts the Committee’s to create a consensus copyright reform legislation. Both the “Fair Play Fair Pay Act,” creating a terrestrial performance right in the United States, and the “CLASSICS Act,” have support from music creators and digital service providers. While we respect the long standing and good faith efforts of Chairman Sensenbrenner to address these issues, H.R. 3350 only enjoys the support of businesses that use music and is so lopsided it would be a toxic “poison pill” in any copyright reform legislation effort.
We urge the Committee to reject H.R. 3350 and to press ahead at full speed with more genuine music licensing reform. Thank you for considering our views.
Melvin Gibbs, President
John McCrea, Vice President
Tommy Manzi, Treasurer
Jeffrey Boxer, Executive Director
cc: The Honorable Daryl Issa
The Honorable Jerrold Nadler
The last time an orphan works bill surfaced in the House of Representatives was a couple months before Hurricane Katrina hit New Orleans. A number of artists attending a Small Business Administration roundtable in New York on the orphan works legislation at the time proposed a “Katrina exception” to the bill for artists of all copyright categories who had lost their records in a natural disaster. Katrina was on everyone’s mind at the time, but the concept applies to all natural disasters.
The controversial “Transparency in Music Licensing and Ownership Act” (HR 3350) being carried by Corpus Christi Congressman Blake Farenthold (R-Corpus Christi TX) among others may not be called an orphan works bill, but because of the Draconian formalities it imposes on songwriters and recording artists it may as well be. (The Dickensian bill has already been panned by Billboard and NPR, among others–the only ones cheering are the anti-artist lobbying behemoth the MIC Coalition and its multi-trillion dollar members.) Unless songwriters and recording artists can each come up with all the many fields of information required by the legislation among other formalities (and have the ability to prove it) then these creators lose their rights to statutory damages and attorneys fees under the Copyright Act.
Plus, you will notice an eerie resemblance to prior orphan works legislation in HR 3350 in removing statutory damages from the penalties that creators can seek against infringers. In fact, HR 3350 goes even farther–the bill disregards prior registrations with the Copyright Office and requires that everyone who previously filed a copyright registration (that’s right–everyone who ever filed one going back to 1909) has to re-register in HR 3350’s new database. Failing to do so essentially orphans the work and the penalties then are not that different than the actual orphan works legislation–that failed miserably when introduced in prior Congresses.
And since the federal government seems much more interested in taking away private rights of creators rather than taking on enforcing the Copyright Act against companies like Facebook, Google and Amazon–without regard to whether doing so violates Constitutionally protected property rights, not to mention international treaties–it should come as no surprise that they haven’t taken into account what happens to songwriters and recording artists in a natural disaster like Hurricane Harvey. When all your back up papers are washed away or turned to melted paper, when your computers are all destroyed by flood waters and your recordings are lost, what are you supposed to do against MIC Coalition members taking advantage of HR 3350?
That’s an easy answer–you submit to the triumph of the connected class.
So if anyone is taking this bill seriously, the “Katrina exception” needs to be taken seriously as well. You would think that Congressman Farenthold would be leading the charge on this issue since he represents Corpus Christi, Rockport, Port A–or ground zero for Hurricane Harvey.
I dreamed up a startling new technique to attempt to divine whether the true purpose of the controversial Transparency in Music Licensing and Ownership Act (or…”TIMLOA”?) was intended to protect small business as advertised by the MIC Coalition. I determined that the safe harbors in the Transparency in Music Licensing and Ownership Act (or as it’s been called, The Shiv Act) was actually designed to protect the biggest of big business.
What startling new technique did I utilize? I read the bill.
What you don’t find in the bill is anything that limits its application to small business. Is it common in music licensing legislation to find such protections? Absolutely. This wasn’t what I expected to find given the braying of the Disco Ducks. But then you know what they say…
The Fair Play Fair Pay Act, for example, has special protection in great specificity for small business like noncommercial broadcasters, public broadcasters and small broadcasters.
The Performance Rights Act (from the 110th Congress) also had very clear exemptions for small broadcasters.
While as a matter of propaganda it ignores these protections, the Local Radio Freedom Act (aka “The Pay Your Rent With Exposure Bucks Act”) is very clear about protecting a particular class of broadcasters: “local radio.”
Yet none of this protective language appears in the Transparency in Music Licensing and Ownership Act. Why doesn’t the TIMLOA have such limiting language if it’s actually all about protecting small business? Maybe because it’s not about small business at all? Maybe it’s about these guys in the MIC Coalition:
Realize some MIC Coalition members are themselves trade associations for companies with combined market capitalizations over $1 trillion. When you see logos for Digital Media Association, the CEA (now called the Consumer Technology Association) and the Computer and Communications Industry Association (home of the Disco Ducks) these are themselves made up of massive companies like Apple, Amazon, YouTube and of course Google, not to mention Spotify. True small business can’t afford these lobbyists and PR firms (like the Glen Echo Group) this starts to look like the astroturf plant it really is.
So don’t let them tell you that the Transparency in Music Licensing and Ownership Act is about small business, unless the MIC Coalition would like to include the kind of protective language in their bill that our business has always included to protect the real small business.
Yesterday we detailed one of the main problems with the so-called “Transparency in Music Licensing and Ownership Act” or as Artist Rights Watch termed it “The Shiv Act.” The bill would take away from songwriters legal remedies like attorney’s fees and statutory damages. Thus making it virtually impossible for individual songwriters and small […]
[Editor Charlie update: Here is a copy of the bill]
Google’s MIC Coalition is at it again. As predicted, the MIC Coalition is bringing orphan works through the back door with a new bill introduced in the dead of night under the misleading title “ Transparency in Music Licensing Ownership Act” or as we call it, The Shiv Act.
The bill hasn’t been introduced yet so we don’t quite know how bad it truly is, but here’s the summary:
Some of the key provisions of the Transparency in Music Licensing Ownership Act include:
Require the Register of Copyrights to establish and maintain a current informational database of musical works and sound recordings while granting the Register authority to hire employees and contractors, promulgate regulations, and spend appropriated funds necessary and appropriate to carry out these functions
Ensure that the database is made publicly accessible by the Copyright Office, in its entirety and without charge, and in a format that reflects current technological practices, and that is updated on a real-time basis
Limit the remedies available to a copyright owner or authorized party to bring an infringement action for violation of the exclusive right to perform publicly, reproduce or distribute a musical work or sound recording if that owner/ authorized party has failed to provide or maintain the minimum information required in the database.
That last point is where we get the shiv in the back. This is essentially saying what Google, Lessig and their fellow travelers have been saying for years–if you don’t observe the formality of registration, then you lose your rights to sue for infringement.
Note that this “register or lose it” approach is soft-pedaled in both the press release
This legislation really puts the “compulsory” in “compulsory licensing” with a vengeance and essentially undermines the very system it purports to “fix”–plus it is an obvious trojan horse for an orphan works regime that Big Tech lusts after behind some librarians–their human shields. (But see Google and the Myth of Universal Knowledge: A View From Europe by Jean-Noël Jeanneney, the former president of the Biblioteque nationale de France, and Google’s Book Search: A Disaster for Scholars by Geoffrey Nunberg.)
If you have any doubt of what these people are up to, you need only look to the royalty-free 45 million mass NOIs that have been filed already using the registration system that does exist right now. The idea that the Copyright Office can handle setting up this unicorn database for the benefit of Big Tech at taxpayer expense is kind of a joke–until you realize that there was a “copyright coup in Washington” and the Google-backed Librarian of Congress is likely intending to appoint her own head of the Copyright Office unless the Senate passes S. 1010 the Register of Copyrights Selection and Accountability Act of 2017.
Whatever the discussions have been in the music community about the need for a “global rights database”, nobody ever said “And what we really need is a use it or lose it system that allows Big Tech to question every lawsuit based on whether a work was registered under the right title by the right people at the right time….” and so on and so on and so on.
This legislation has all kinds of potential international implications as did the taxpayer debacle known as the Fairness In Music Licensing Act, which benefited MIC Coalition members but has cost the U.S. taxpayer millions of dollars as a result of treaty violations. The MIC Coalition is back with more crony capitalism asking for another taxpayer funded even safer harbor, a legislated knife to stick in the backs of songwriters and artists.