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Report on the Copyright Office Roundtable, June 15, 2007

It was my privilege to participate in a roundtable held at the U.S. Copyright Office in Washington, D.C. on June 15, 2007. We discussed issues pertaining to the compulsory licensing of musical works under Section 115 of the U.S. Copyright Law; there is a brief overview of these issues here: What’s Incidental to Your Transmission? (There was also a surprising amount of discussion about salads, as mentioned here: Of Copyrights and Salads.)

I was there to represent my band Curse and its publishing company Cursory Rhymes (although I like to think that I was, in a sense, representing all indie artists, who were otherwise unrepresented on the roundtable).

At the head of the table (which, I'll note for the literal-minded, was rectangular, not round) sat Marybeth Peters, Register of Copyrights, and two other attorneys from the Copyright Office. Around the table sat representatives of these entities:

ABKCO Music and Records
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers Authors and Publishers (ASCAP)
Apple Inc.
Broadcast Music Inc. (BMI)
Cursory Rhymes
Digital Media Association (DiMA)
Music Reports Inc.
Nashville Songwriters Association (NSAI)
National Association of Recording Merchandisers (NARM)
National Music Publishers Association (NMPA) / Harry Fox Agency (HFA)
Public Knowledge
Recording Artists Coalition (RAC)
Recording Industry Association of America (RIAA)
Royalty Share
Songwriter's Guild of America (SGA)

Cursory Rhymes looks a bit out of place, doesn't it, among all those large companies and organizations?

There was also an audience. I was hoping one of them might have blogged something about the event, as I'd be interested in reading an observer's impressions, but I haven't found anything aside from the links above. (If you have, please email me.)

It was my first time attending such an event, and I found it fascinating: the participants had an incredible depth and breadth of knowledge, and spoke with frankness and even passion. The Copyright Office attorneys showed a sincere interest in learning about the practical challenges faced by entities in all areas of the music business. As the Copyright Office can only interpret the law, not change it, the participants discussed the arguments (both practical and legal) for and against various interpretations of the current law, so that the Copyright Office can consider these diverse opinions in its next Rulemaking.

There seemed to be consensus early on that one problem with existing laws and rules is that they mandate the naming and categorization of each type of use prior to establishing rates and licensing procedures. Not only does this become increasingly difficult over time as the number of formats and delivery systems increase (and statutory language becomes obsolete), but as a practical matter both licensors and licensees care little, if at all, what a particular format is called, as long as the rates and licensing procedures are clear and fair. In the future, there may be a system in place such that whenever a new format or delivery system is established, a rate-setting body can set market-appropriate rates without having to categorize each use as a "general DPD," "incidental DPD," "on-demand stream," "cache copy," or anything else. But the Copyright Office's ability to create such a framework under current laws is doubtful.

I was surprised at one point to find myself agreeing with a position taken by the RIAA: a suggested interpretation of the law pertaining to server copies. (Although I don't agree with the Consumerist poll declaring the RIAA "Worst Company in America" despite not even being a company -- I think Exxon or Halliburton should have won -- I disagree with many business practices of their member companies.) I had mentioned that independent artists who make digital phonorecord deliveries (DPD's) available to consumers via third parties are not provided with information about server copies (for example, the copies that iTunes makes on its own servers before they can offer downloads to consumers), so we (the artist) could not obtain licenses for these copies (as we would for the consumers' copies) even if the law required us to do so. Steve Englund of the RIAA pointed out that under the RIAA's suggested interpretation of the law, server copies can be licensed under Section 115 (and presumably would be by the media companies such as iTunes) but would not require a separate payment, as they are not delivered to consumers. Although this means that publishers won't get paid on server copies, it also means that media companies won't have to spend time recalculating royalties every time they reconfigure their servers, which I think will help them stay competitive and ultimately result in more sales. (In this regard, Curse's interests as an artist covering other writers' songs are in conflict with Curse's interests as publisher of its own songs.) In any case it's clear that the industry would benefit from greater clarity in the licensing obligations of all concerned parties.

Jon Potter of DiMA was quite emphatic about DiMa's goals of providing maximum choice to consumers, while paying the relevant publishers. He was also outspoken about his frustration with publishers whose data is not in formats readily usable by potential licensees. There were a couple of somewhat heated exchanges between him and representatives of the NMPA over who should be responsible for combing through large quantities of data in order to direct royalties to the appropriate parties.

Several participants mentioned the difficulty of finding complete information about writers not signed to Harry Fox Agency-affiliated publishers, and artists not on RIAA-affiliated labels. Les Watkins of Music Reports, Inc. called such unaffiliated entities "the great unwashed." (Knowing that I had, in fact, showered that morning, I'd prefer something like "the un-aggregated.")

Despite being called metaphorically "unwashed," I am very glad I attended the roundtable. It was extremely heartening to see a top government official like Marybeth Peters invite such a large group of people, representing diverse interests, to share information with her office and each other. All government officials should learn from her example.

The Copyright Office will eventually be posting a full transcript online; I'll post a link when I have it.