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.
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.
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.
Universal Music Publishing Group chairman and CEO Jody Gerson and Warner/Chappell chairman and CEO Jon Platt have joined the ranks of those who are deeply critical of last week’s recommendation by the US Department of Justice’s (DoJ) anti-trust division to decline modifying the consent decrees governing performance rights societies ASCAP and BMI and to introduce a “100% licensing” model.
“In short, we believe that the DOJ’s decision is bad for songwriters and we are deeply disappointed,” wrote Gerson in a memo to staff obtained by Music Week. She added that the consent decrees “badly need to be modernised for today’s market.”