RETHINK MUSIC, 2011 - The Conference in Review

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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