RETHINK MUSIC, the ambitious music conference held April
25-27 at the Hynes Auditorium in Boston, sponsored by Reed MIDEM, the Berklee
College of Music and Harvard's Berkman Center for Internet and Society,
convened an eclectic group of heavy hitters from the music, technology, education,
legal and political communities with an equally eclectic audience of student
novices, indie musicians and industry experts. Although the term "Rethink" surfaced often, most
participants concurred that there was, in fact, no rethinking at Rethink
Music. Rather, the thrust of the
discussions focused on the substantive task of analyzing policies, past,
present and future, and identifying major issues in an effort to overcome
various obstacles posed by progressive initiatives already set in motion. With
no ground breaking eureka panels on the Rethink menu, the conference kept to
its agenda of propelling the music industry forwarded with a buoyant resolve.
The underlying theme of Rethink Music was sustainability and
growth in the music industry. For
creators, this translated into "do I have a future in the current industry
climate?" For those of us in the legal
sector, this translated into "how do we best serve and support the creative
community with effective, strong but malleable, copyright laws and programs."
The rethinking at this conference, therefore, might have
manifested in a rethinking of "attitude."
This was not your old school music industry conference nor was it your
typical tech or business conference. The
diversified programming and comingling of communities produced some interesting
results. As impassioned, intelligent
discourse spilled out into the hallways and lobbies around the two meeting
rooms at the Hynes during the two days, there was a sense that Rethink Music
might be breaking ground after all.
Perhaps we've experienced the first conference in establishing a less
argumentative, cooperative approach between divided parties, thus paving the
way for actual future "rethinking." Most
exiting the Hynes agreed that this first effort might be a nascent step in
reconciling competing but not always conflicting interests and that such a
beginning was at least better than nothing.
The following is a simplified recap on key legal issues
Rethink's panelists wrestled with last week.
Licensing
Difficulties - Will the Proposed Global Registry Database simplify the process?
What is the role for Collective Licensing?
Panelists: Moderator, Chris Bavitz, Assistant Director,
Cyberlaw Clinic, Berkman Center for Internet and Society; Robert Ashcroft, CEO,
PRS for Music, Stephen Block, Senior Counsel, Harry Fox Agency, Glenn Otis
Brown, Director of Music Partnerships, YouTube, Jay Fialkov, Deputy General
Counsel, WGBH, Michael Heppe, President, SoundExchange, Patrick Sullivan, CEO
Rightsflow
Issues : How does one locate rights holders? How
does one pay rights holders? What happens
when one cannot find rights holders?
The experts in copyright clearances and payment took the rostrum
to analyze and bemoan the present global conundrum in licensing. Understanding the fundamental copyright concepts
in music is critical to understanding the complexity in music licensing. Since rights exist in both sound recordings
and the underlying songs/compositions embodied on the sound recordings, most
often, multiple rights holders must be located in order to both grant
permissions and to receive payment for use. 21st century digital formats now
layer an already burdened administrative licensing process and identifying
rights holders appears to be the major hurdle. "Rethinking" the
licensing schemata has now risen to the top of the international music industry
issues heap as the business scrambles for increased revenue and opportunities
to use, collect and pay for music.
The panelists discussed the proposed GLOBAL REGISTRY DATA
base, an initiative in copyright data management which would facilitate the licensing
process. The proposed GRD alleges to
benefit songwriters, music publishers and collecting societies in that it will
provide a reliable global data base of musical works ownership so that rights
holders may be identified and paid. The most convincing argument for the GRD came from the UK's Robert Ashcroft,
president of PRS, a UK collection society, who cited differences in the US and European
music licensing markets. With a plethora
of copyright collection societies as well as the lack of sound recording data
bases in Europe, the GRD would provide for more efficient licensing and the
elimination of the doubling of efforts with multiple collection societies. It was
also argued on the other hand, that the US music licensing system is "not
broken" and may not benefit from such a registry, since with fewer than 10 US service
providers, rights holders are not as difficult to locate and pay. To
this end, Patrick Sullivan's Rightsflow advised creators to aggregate a "blueprint
on content," creating a registry for individual works with as many of the appropriate
collection agencies as possible, i.e. Harry Fox, BMI, ASCAP, SoundExchange. He also recommended the development of a "one
stop shop" sound recording registry which would ensure the granting of rights and paying
rights holders. The frustration of
WGBH's deputy general counsel Jay Fialkov, a former music industry attorney,
was palpable. Fialkov discussed the "orphan works" challenge which spawned the "use
anyway and pay later" policy at his station.
He also discussed the urgency to create a blanket, voluntary TV
synchronization licensing program with universal approvals which he argued
would eviscerate the necessity to locate the myriad of rights holders in the
music used in his network's productions and cease to deprive those rights
holders from potential revenue.
The Current State of
Copyright Law.
The Panelists: Moderator,
John Kellogg, Assistant Chair, Music Business Department, Berklee College of
Music; Olufunmilayo Arewa, Associate Professor of Law, Northwestern University,
Derke Crownover, Partner, Crownover Blevins, Mark Fischer, Partner, Duane
Morris, LLP, Adam Parness, Senior Director of Licensing, Rhapsody, Mary Beth
Peters, Former Register of Copyrights
Issues: Termination rights, Public Performing Right
for Sound Recordings, Cloud Computing, Policy
Berklee Professor John Kellogg's pirated music served as the
colorful backdrop for an informative discussion on the state of the copyright
union. Former Register, Mary Beth Peters delivered an incisive fast moving presentation
on the looming termination rights issue in the 1976 Act which did not produce the "glaze over effect"
she promised. Ms. Peters conceded that
even the most expert copyright lawyer has trouble deciphering this complicated
area of the law and enumerated its tricky challenges. She attributed the
stumbling blocks to implementing termination rights as locating authors, securing
the majority of authors' consents to termination as well as filing appropriate
notice of termination within statutory guidelines. Ms. Peters' also discussed
the technicalities of the gap in the application of termination rights. This applies to works which were contracted for but not
created until after 1976 act took effect. She cited the Charlie Daniels case,
whose forthcoming decision may be central to charting this territory. Ms. Peters invited the audience to check the
copyright office website for termination notices and closed her piece with a nod
to the recurring Performance Right for Sound Recordings for terrestrial
radio. She appeared hopeful for an
eventual passing in 2012 but noted that the strong broadcaster lobby might continue
to stonewall until radio chips are installed in mobile devices. Our former Register summed up the issue stating
that the sound recording performance right should finally be adopted as a
"matter of equity." Panel participants
agreed that the codependence of sound recordings on record producers and mix
engineers warranted the latter's' remuneration in any new compensation schemes.
The panel moved on to discuss the licensing
dilemma in cloud based computing and whether accessibility by multiple users to
digital lockers constitutes fair use in a public performance royalty paradigm.
Copyright lawyer Mark Fischer's excellent closing remarks on how the copyright
debate has engendered a "robust public discussion in every law school, blog, and
social network and that popular culture has benefited from a strong copyright
system" underscored not so much the "rethinking" of copyright but a "realization
and actualization" of it.
The Future of
Copyright Law- Enforcement, Graduated Response and COICA
Panelists: Moderator,
Jonathan Zittrain, Professor, Berkman Center for Internet and Society and
Harvard Law School; Rep. John Conyers, Jr., Ranking Member, House Judiciary
Committee, Dr. Kaya Koklu, Senior Research Fellow, Max Planck Institute for
Intellectual Property and Competition Law; Cary Sherman, President, Recording
Industry Association of America, Fed von Lohmann, Senior Copyright Counsel,
Google
Issues: Enforcement,
Graduated Response and COICA
The ramped up momentum of this panel's discussion sent this
writer back to the books. Posed with moderator Zittrain's question of what he would
have done differently, Cary Sherman, President of the RIAA, provided a historical landscape of the RIAA's
past policies and was hopeful that changes
would form new partnerships as part of a continuum. He
defended the RIAA's past position in pursuing infringers as necessary to the
context of defining what was legal to consumers. He stated that the actions had the intended
chilling effect on the groundswell of P2P file sharing, not only deterring but educating
the consumer. He also believed the RIAA policy provided the necessary "traction"
for iTunes. He confessed that the music industry did not anticipate the advent
of the internet and reaffirmed expert positions that sourcing out rights needed
updating, with the facilitation of licenses as a primary issue. The panelists agreed
that allowing anti-trust exemptions would provide a free flow of discussions
and assist in determining the value proposition of licenses. The discussion moved to the proposed
legislation, COICA "Combating Online Infringement and Counterfeits Acts" a
controversial amendment to the copyright law which apparently does not provide
a graduated response to infringement. Google's
senior copyright attorney, Fred von Lohmann, set a more controversial tone to
the panel's flow, stating that he thought music would have been further ahead with
new models, alluding to programs such as Spotify's success in Sweden. He
concurred with Sherman's belief that the proposed legislation offered less
flexibility and freezing in law issues such as statutory damages could have
serious implications as well as a chilling effect on innovators. Microscoft's Tom Rubin explained that his
company has had to wear both hats on the issues, as a tech company and also as
a defender of rights holders. He
concurred that P2P file sharing established important precedents on rampant
consumer infringement, not at the margins of internet. Dr. Koklu, the German scholar, detailed the French three strikes HADOPI program, a
graduated response program, where French account holders of ISP services face an eventual black listing by
the ISP after three infringements but must still continue pay for the service if
found guilty. There were a few interesting takeaways from
this panel: 1) World surveys conclude that
70% of copyright infringers will stop after the first notice of violations. 2) Innovations
in webcasting could provide new revenue streams. 3) Mashups and Remixes are
promotional tools and RIAA pursuit would be "a crazy use of our time." Looks like Girl Talk is safe, at least for
now.
In closing, some actual RETHINKING came from two secular
panelists. U2's manager, Paul McGuinness,
continued his crusade to inculpate the global ISPs, suggesting a "telephone
call" type charge to the account holder's ISP bill every month for music
use. Data and chart producer, Big Champagne's Eric Garland, contended that "rethinking is
taking place at our desks, in group think, with the core feature of Music with
a capital M." In this final comment,
Garland came up with a thought that has been sorely lacking at most recent
conferences, hence, a rethought. Garland
set the RETHINKING spotlight shining back where it belongs, on the MUSIC.
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