Music publishers: 'Copyright should be technology neutral'
Composers, music publishers, and songwriters have told federal lawmakers that regardless of whether music is distributed to consumers via TV, DVDs or digital download, they need legislative help to ensure they get their fair share.
Two weeks ago, I wrote a story about how some of these groups want iTunes and other Web music retailers to pay performance fees for downloads of TV shows and films. They also want online music stores to cough up fees for 30-second song previews. Those revelations didn't go over well with many techies.
But to get a better understanding of what the artists want from Congress, I asked David Israelite, president and CEO of the National Music Publishers Association, to forward me a copy of a March 10 letter written to members of the Senate Judiciary Committee by a consortium of trade groups representing songwriters, composers, and publishers. He agreed.
In the letter, signed by Israelite and representatives of such groups as Broadcast Music Inc. (BMI); American Society of Composers, Authors & Publishers (ASCAP); and Songwriters Guild of America, the consortium wrote: "Technology should not be used to strip rights from songwriters, composers and music publishers. The choice of certain audiovisual delivery systems or methods over others should not result in a diminution of creators' rights or royalties."
The group later made this statement: "There is no question that copyright should be technology neutral" and asked Congress to make "a clarification to the copyright law" that specifically says that "the public performing right is implicated in digital downloads" of audiovisual works that feature music.
"We believe Congress intended the current law to be platform neutral," the music consortium wrote to the senators. "The conflicting interpretations demand clarification, for without it, performing right income of songwriters, composers and publishers is seriously threatened."
The lobbying efforts of the songwriters, composerss and music publishers continue.
All of this started with the shift in the way the public consumes media. Songwriters and publishers have for a long time collected performance fees from broadcast TV networks and film studios, but now more and more consumers are watching films and TV shows downloaded to their iPods or laptops, which at this point aren't considered public performances.
A federal district judge court ruled in 2008 that "there is no copyright protection for the public performance right when a work containing music is digitally transmitted for future playing or viewing" the consortium wrote in the March 10 letter.
The music creators have appealed the decision.
How is this the consumer's problem?
To critics, composers, songwriters and publishers are asking for a guarantee that they will get paid for public performances even if there isn't any public performance.
Fred von Lohmann, senior attorney for the Electronic Frontier Foundation, an advocacy group for Web users and technology companies, disagrees with the argument that copyright should be technology neutral.
"The Copyright Act has never been technology neutral," von Lohmann said. "The (Digital Millennium Copyright Act's) Safe Harbors only applies to online services. There are areas that apply only to cable and satellite providers. The Copyright Act is always trying to strike a compromise."
He added that music creators already collect other licensing fees, for such things as synchronization rights and he maintains, iTunes or other music retailers shouldn't be responsible for making up losses for music creators.
"The copyright owner is going to get paid," von Lohmann said. "Whether it's called a performance or a reproduction the copyright owner is going to get paid. This is just a turf war between middlemen about who is going to take a piece off the top. The copyright office has tried to broker some sort of solution between the various parties for years with little success.
"We'll get some more guidance from the courts soon," he continued, "but I doubt that will be the last word. As (Israelite's) letter suggests the parties can all go fight it out in Congress now."
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
However, if studios are trying not to pay royalties or other fees they pay for DVD sales for digital downloads, this would be the same as when they tried to not pay writers for streaming or downloaded shows and movies. I am all for songwriters getting the same deal they get for DVDs and CDs now, but that should come from the production company....Does Best Buy pay a songwriter directly when it sells a DVD, or is that built-in to the cost of purchasing the product from the distributor?
Just another item to file in the "what were they thinking" list of music executive decisions.
My thoughts exactly. Digital downloads are reproductions, and the analogies to DVDs are obvious for movies and TV shows. One of the core concepts of a public performance is that the person putting on the performance is profiting from it and therefore share the wealth with those who worked to make it possible. On a digital download, the performance is being staged by the end user using a reproduction purchased from a distributor (e.g. iTunes).
But lately the music industry has been a ***** and trying to crack down on BitTorrents and ISPs.
Also:"Technology should not be used to strip rights from songwriters, composers and music publishers. The choice of certain audiovisual delivery systems or methods over others should not result in a diminution of creators' rights or royalties."
What is this about? Technology doesn't strip songwriters, composers and music publishers from their rights. It helps them to gain more rights, to more freely produce and distribute music!
If the prices for music go up, people will buy less music as well.
Do these people even bother to think before they say such asinine things?
Anywho... what we do know is previews are advertising (radio, video clips have already shown this). Inhibit the ability to preview and amputate your own business. Almost ALL consumer products have a FREE preview capacity (eg trying on clothes, test drive a car) - why shouldn't music?
In the end, these musician and corporations are busy killing the goose that lays the golden egg - for them, that's us, the audience.
Before someone says "you don't deserve to get paid at your job?". No I don't deserve it just because I show up at a business and start working. I come to an agreement with the business owner, and sell my services for a predefined wage and set of hours.
All this "I made a song so I deserve to get paid!!" crap is annoying.
But let's take it a step further: How many songs (other than the singles that are played on the radio) would I buy from an artist that I *did* know should I not be able to listen to a sample? Not very many. If Britney Spears, for example, has a good single on the radio, she may also have a good track on the album that isn't going to be released as a single. Most people wouldn't get a chance to hear that song unless they A.) Paid to stream a sample or B.) Purchased the entire album out of good faith that the rest of the songs would enjoyable. Neither of those seem to be good alternatives.
Also, "Congress technology shouldn't strip them of their livelihood." Someone should make the argument to Congress that technology shouldn't carry the burden of sustaining their livelihood either. Change happens. Innovate or die.
Most of my favourite software is free.
The very language you and I use to discuss this is a greatly appreciated work for which no-one pays.
So guess what - what you get is frequently unrelated to what you pay for.
People who make up a great joke don't get protection from me sharing it with my friends. Why can't they get a "tiny payment" when I retell their work?
Effective copyright enforcement in an information technology rich world may depend on the kind of police state we don't think is worthwhile.
The children of Sudan deserve to grow up with good food, health care and safety. If we want the best music maybe we would do better to allow all the people of the world the leisure to express themselves creatively, rather than to support an industry of dubious value. Perhaps the most talented musician of our day is now dying without a chance use their abilities.
So no, not end of story, part of a long and complex debate.
Those "teeny tiny" payments add up and jack up the price of music, and that is asking to reduce sales. Those same payments don't make someone more creative, either.
Today, I can go to a retail store like Barnes and Noble, scan any CD, and listen to samples of those tracks to see if I'm interested in making a purchase. Why should buying music over the Internet be more restricted or subject to additional fees?
Ummm, yes you do. The performances are covered by copyright even if they underlying score is public domain. For example, the Gunter Wand performance of Beethoven's 9th is owned by the copyright holder. As such, every time a radio station plays a selection from it or it is used in a film or television show the proper fees have to be paid.
These people have become a protected class in society and are pushing for even more rights to make more money off less work. It's not like these people are mozart or beethoven writing music for the ages.
That said, any commercial reuse of the author's piece should be covered by copyright according to CNET's Terms of Use.
And it's not JUST brought up now it's been ongoing for a long time...the awareness of this issue is new. DMCA changed things especially concerning Artists ans Songwriters. The emphasis changed to Artist. often highly paid vs Songwriter who is often not.
It doesn't. It maximizes their royalties. Putting the cover of a book in an advertisement for the book - doesn't reduce the royalties to the graphic artist who did the artwork. It's the opposite, the advertisement spurs books sales, and they then get paid on the increased book sales.
By the same token a 30 second preview of a song, is not a performance. It's a teaser, designed to spur the sales of the song.
They think they can get away with this, because Congress is notoriously ill-informed about subjects, and tends to listen to trade groups over the general public. It's unfortunate, but true, they regard the general public as being somewhat dumb, and dealing with large groups, fits more in with their egos and how they envision their job as congressmen and congresswomen.
Basically, we need our own groups to have more influence than these other groups, or there is little hope to get the right kind of legislation enacted.
Also, as for charging for sampling the work...that's ludicrous. Talk about killing your own business, not to mention when looking for songs with similar titles it's going to be difficult to differentiate between them with out listening to the song.
A great example is hulu.com. every show you watch is considered a rental. At least I'm pretty sure that's how they categorize it. Thus, no royalty. So from our point of view it's like wait a minute, you call it a rental yet, there is advertising throughout the show. Sure seems like a public performance to us.
What people have to understand is, all of the major content companies are trying to kill royalties once and for all once everything moves to digital. Is it any wonder that composers and artists are freaking out? We were promised dvd back end and it never materialized.
People call us greedy but consider this, a lot of reality shows are gratis based. This means, they take music for free and you the composer, get paid in performance royalties. I could name a hundred shows that do this. So, you write 20 cues and they get placed in the show and you see money a few months down the road. it's not a boatload of cash, but do this enough times and you can make a good living. At least, that's the idea. With everything moving to digital, thats not true anymore. The economics of music for tv for people like us only works if there is back end.
I understand the sensationalism of the 30 second preview thing. However, look a little deeper and you will see a trend as old as time. The big guys essentially taking it all for themselves. Don't blame us, blame nbc, cbs, mtv etc.
Seems to me, this is a rich-boys party and they are trying to figure out how to continue to pay themselves as they watch revenues decline.
Great points. The basic principle of TV and movie studios paying the musicians and composers when their work is used to the profit of the studios remains good in digital and should really be the driving value in the debate.
It seems to me that there's a new category opening up with things like Hulu... I'd call it on-demand performance. The shows are available for a limited period of time, and transmitted from the service to the viewer in such a way that they don't (or are not intended to) persist after that period. In the case of Hulu, they're also inserting ads from which they derive profit.
Unlike iTunes downloads, Hulu is clearly not a reproduction. A show can be watched N number of times on Hulu, but it does not mean that N number of copies exist. To my mind, this also speaks against it being a rental as there is no reproduction being rented. I'm personally not sure how well the concept of a rental translates from the physical world to the online one in the first place, but at the very least a rental should stem from the idea of a reproduction.
There's legitimately uncharted ground here, but the groups pushing the things described in the article are missing it in favor of making land grabs that trample established territory.
this argument sounds abit like Frank Sinatra's argument that he should get more royalties than the writer because the like the song because of him!
taking this to congress is alot like what happened to pre successful musician in Nashville. none of the honky-tonks so famously shown whenever Nashville is on TV do not pay the performers so they do not have to pay fees to BMI/ ASCAP/SESAC/etc. all the players are busking in these bars generating revenue for the bar owners who don't give them anything for performing; these guys only make what the tourist put in their tip jar. and afr as actual on the street busking, they have made that impossible by going around and asking for union dues and royalty fees for performing certain songs from the buskers.
or to put it another way, i had four songs placed in TV shows last year, generating enough income for me to live a modest upper-middle class lifestyle. its is usually only the upper- management and people who want in, that fight these types of crusades. the real battleshould be with the very low percentages that labels pay for anything. as the songwriter a single hit #1 on the charts has to sell around 30 million copies fro me, as the writer not the performer, to see close to $500,000. calculate my percentage.
This will not be settled in the court of public opinion. The public as exemplified in the comments here is proving to be asinine. This will be settled in Congress and the courts. Then sure, you can go to pirate sites and download for free just as you can go to a street dealer and pick up a fix. Until you get caught; it's jake. When you do, it's jail.
Adapt to that.
So instead of making better music - they thought lets force people to pay more for our bad decisions!
Or at the very least, give you three previews for every song you buy, or something to that effect.
- by winstein October 8, 2009 8:43 AM PDT
- Stupid people wants to protect status quo. They want to keep their existing relationships with the radio stations and record labels.
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Showing 1 of 2 pages (52 Comments)This is a power shift. New artists will figure out new ways to get rich without the old relationships.