Wednesday 3 October 2018

THE COPYKAT - the music industry celebrates copyright reforms

Will President Trump be taking the credit for 'saving the US music industry' or even 'saving the global music industry'? Well going on recent US press on the progress of the Music Modernization Act, he might well be! The Act has had rapid progress through both houses in the USA, with bi-partisan support, and apart from a couple instances of inter-industry wrangling, the Act has garnered widespread support for almost all of it's proposals. The Act comes hot on the heels of the European Parliament's approval of some major reforms to copyright law (see earlier posts on the new Copyright Directive) and means that on both sides of the Atlantic there are going to be some major changes to copyright law - most of which seem to favour the content industries rather than the tech giants, despite the later's strenuous efforts to lobby, influence, scare and befuddle legislators. Well some would say that!

As Artstechnica opined, "for the last decade, the Congressional debate over copyright law has been in a stalemate. Content companies have pushed for stronger protections, but their efforts have been stopped by a coalition of technology companies and digital rights groups" adding "the Senate unanimously passed the Music Modernization Act, a bill that creates a streamlined process for online services to license music and federalizes America's bizarre patchwork of state laws governing music recorded before 1972". 

The Act aims to establish a modern system for licensing mechanical rights and by reforming Section 115 of the US Copyright Act (hopefully) it will establish a new national database that will aim to cover all copyrighted music in the United States, and  this can offer streaming services and other users a "one stop shopping" - and a clear system for remitting royalties back to content owners. It also repeals Section 114(i) of the Act, and will change the way judges are assigned to decide ASCAP and BMI rate-setting cases.The Act will also give pre-1972 sound recording copyrights federal protection (the so called CLASSICS Act - Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act), and finally The AMP Act (Allocation for Music Producers Act) adds producers and engineers of sound recordings, to U.S. copyright law, codifying into law the producer’s right to collect digital royalties and provides a consistent, permanent process for studio professionals to receive royalties for their contributions to the creation of music.

So it's on President Trump's desk now, with Mitch Glazier, President of the RIAA, saying: “With this final House vote, another chapter in the journey of this critical legislation comes to a close. As the Music Modernization Act goes to the President’s desk for signature, we have many Members to thank for their work to make this final House vote possible to improve the lives of countless artists, songwriters and producers.

The RIAA was less impressed with the current text of the revised North America Free Trade Agreement (now the  United-States-Mexico-Canada Agreement) with Glazier saying  "We understand the US Trade Representative and his team must navigate a complex trade landscape" and "And we appreciate the diligent work of Ambassador [Robert] Lighthizer and his staff over the past several months. Unfortunately, the agreement's proposed text does not advance adequate modern copyright protections for American creators. Instead, the proposal enshrines regulatory 20 year old 'safe harbour' provisions that do not comport with today's digital reality".  songwroters and music publishers might be a bit happier - Canada will bring its copyright term for songs in line with the US (and Europe) by extending it from the current 'life of the creator plus 50 years' to 'life of the creators plus 70 years'.

And in Canada - another call for reform - and this from a rock star turned photographer who wants to change just ONE word! Rocker Bryan Adams is lobbying to change the Canadian Copyright Act so authors can reclaim their copyrights after 25 years - even when they have been assigned away to third parties, with Adams arguing that many artists sign away their copyright generally as young entrants to an industry which can and will exploit them, and they are not in a position to push back against the record companies and music publishers who provide them with their first contracts, often allowing the rights owners to continue exploiting works long after they have recouped their initial cost of publishing the novel or giving a new singer an advance. Perhaps a new approach emulating the US copyright system of "reversion" which this allows creators apply to take back their copyrights after 35 years, even if they have entered into a "perpetual assignment of copyright" with a publisher, studio, label or other party (although that doesn't seem the easiest system to use!). The change in Canada?  A new right of reversion 25 years after assignment - rather than 25 years after the death of the author!

Damian Collins MP
M Magazine (UK collection society PRS for Music's own magazine, issue 69) has an interesting interview with Damian Collins MP, chair of  the Culture, Media and Sport Select Committee has been commenting on fake news and the spread of misinformation on the web, but made some telling comments on how the tech giants respond when their disruptor business models are threatened, partially in the context of copyright, saying that when it comes to the tech companies, "we've learned that, unless you establish real legal liability,or there is a real threat of legislation, they won't act. They have to be compelled to do so". Telling.

U.S. District Judge Stephen V. Wilson in the Central District of California recently issued an order granting-in-part and denying-in-part a motion for summary judgment made by Detroit based automaker General Motors in a copyright case brought by a Swedish artist  Adrian Falkner who painted a street mural on a building that GM then used in its marketing materials for the 2016 campaign 'The Art of the Drive'. Although Judge Wilson granted summary judgment in favour of GM on the plaintiff’s Digital Millennium Copyright Act (DMCA) and punitive damages claims, the artist’s claim for copyright infringement have been allowed to proceed to trial. GM had argued that Falkner’s copyright claim failed as a matter of law because the artist’s mural was incorporated into a building; citing to the Ninth Circuit’s 2000 decision in Leicester v. Warner Bros., GM argued that reproducing photographs of a building including any artistic works that are part of the building is not copyright infringement pursuant to 17 U.S.C. § 120(a) - Judge Wilson distinguished Leicester and the case goes on.

And finally in this CopyKat, and with a slightly off the wall reference, but an interesting one - it's a report on the speech Europeana Executive Director Harry Verwayen gave at the EBU event "Cultural heritage for the future: the role of media innovation" - asking "Could AI and data mining technologies overcome issues in cultural heritage?" with his opinion that "Here is the issue: we have currently digitised around 10% of all our heritage. Of that 10% (which represents around 300 million objects), only about one third is available online, and of that, only 7% is available for reuse. At Europeana, we work very hard to improve this equation and as you can see almost 20% in Europeana can be shared, adapted (all within full respect of copyright of course) while the other 80% can at least be viewed online". It's worth a read.

Image: Neurones connecting, artwork, Stephen Magrath, Wellcome Collection, Public Domain

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