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
Episode #94: Recently, a bill was introduced by Republican congressman Jim Sensenbrenner which calls for the creation of a comprehensive database of compositions and recordings. The “Transparency in Music Licensing and Ownership Act” claims to make things easier for coffee shops, bars and restaurants who want to license music to play in their establishments. To many in the music industry, the bill seems like a wolf in sheep’s clothing with the potential cause big problems. On this episode we dig deep into the bill with Future of Music Coalition’s Kevin Erickson and attorney Chris Castle.
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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.
On the surface, at least, the “Transparency in Music Licensing Ownership Act,” introduced in the House of Representatives on July 20 by Congressman Jim Sensenbrenner (R-WI), seems like a copyright bill that could help untangle the online music business. At a time when accurately identifying rightsholders has become an important issue — and an expensive one — the bill would direct the U.S. Copyright Office to create a database to make the process easy. Who could be against transparency? Or an easy way to identify rightsholders? Or, in a business where information is hoarded for strategic advantage, a comprehensive database run by a neutral organization?
Well, the devil is in the details.
A Guest Post By Alan Graham of OCL. Two years ago, this month, I wrote an article here called “Understanding Music and Blockchain Without The Hype“. As with any nascent technology that shows a great deal of promise, there’s generally a tremendous amount of hyperbole as to what’s possible. A lot can happen in two years.
There’s this perception that blockchain companies provide cheaper solutions, but we’re talking fractional cost savings. These savings may eventually cost more, not less over time. Building world class technology and then running it costs money. If your royalties vanish in a hack, you’ll want to be able to call someone, not talk to a bot.