This article originally appeared in the 2.19.15 issue of Metroland
In my last
column we talked about the Flo & Eddie lawsuit seeking performance right
payments for pre-1972 recordings.
lawsuit is going very well for them, and as I explained, it highlights what a
putrid and stupid mess copyright law has become, especially regarding
If you wanna go back and review
the article now, we’ll wait.
tap... OK, on the same day my article ran, the Copyright Office (the federal
agency that oversees all things copyright) issued a 250-page report entitled Copyright and the Music Marketplace
calling for a massive restructuring of how music is licensed and how musicians
and songwriters get paid.
report came out on February 5, everybody in the music biz trumpeted its
A few hardy souls even made
cursory comments about whether it was good or bad, based apparently on what is
contained in the 13-page executive summary of the report.
Since then it’s been radio silence all around.
None of my go-to sources have said a peep,
and I could find only a small handful of obscure blogs have attempted to sort
it all out and explain the report comprehensively.
I think a
lot of this has to do with the complexity and mundaneness of the issues.
I’m not sure it’s possible to sit down and
read the entire report without losing one’s mind and entering a state where
violence and substance abuse seem like the only answer.
Heck, that’s how I felt after just reading
the executive summary.
But let me try
to, in the space allowed, impart at least a little of what I think is going on
First the report
recognizes that the current system is broken.
There are rules that date back to the days of player pianos, there are
internet-specific rules that were made before anyone really realized what the
internet was and what it could do, there are distinctions made that are
artificial and nonsensical, and there is a tendency for secrecy among big players
that benefit the big players at the expense of everyone else.
explicitly recognizes this, and notes that consumers are rapidly switching from
owning music (CDs and downloads) to accessing music through streaming services
(like Spotify and Pandora) and how the current and outdated structure of payments
doesn’t compensate musicians and songwriters at nearly the same rate as before.
The report appears to suggest a consolidation of rate-setting under a single
tribunal at the Copyright Office, and an effort to treat various types of music
delivery (radio v. streaming v. physical delivery) as functional equivalents (which
they are) and give them equivalent pricing structures.
good to me.
We’ve now got a situation
where the license fees from radio / TV/ nightclubs, etc. to ASCAP and BMI are
set by a couple of federal judges, the price of using a song on a recording is
set by Congress (if you’re using the entire song) or by private negotiation (if
you’re using part of the song), and where Pandora pays marketly different
royalties than Spotify, simply because Pandora won’t play the specific song you
feed it (it only will play similar songs) while Spotify does.
It’s really just plain dumb.
It makes sense to have all this set by one
dedicated body that has the expertise to do it.
a number of other specific proposals that were good.
Like extending federal copyright protections
to pre-1972 sound recordings.
take care of the multitude of issues we discussed last week arising from the Flo
& Eddie litigation.
Like imposing on
broadcast radio a performance license for sound recordings, which would put
broadcast radio on par with the various forms of digital transmissions, would
provide performers with a much needed income source, and would free up for US
musicians foreign airplay performance royalties that are currently being
withheld by foreign performing rights groups because the US (almost uniquely in
the civilized world) refuses to pay them.
Like transparency in licensing and music use.
The most valid complaint about Spotify is
that it doesn’t disclose how it determines its pay-outs.
Does anyone know how ASCAP whacks up its
Shouldn’t musicians know who is
listening to their music, so better to whip up marketing strategies?
The report suggests that market participants
disclose huge amounts of information about the deals they make, where the music
goes, and the calculations used to determine where the money goes.
the report’s not all good, of course.
really seems aimed at perpetuation the music industry as we know it.
Who knows how it will all shake out, how it
gets through Congress (which needs to OK much of what’s proposed), and how long
it will take.
What I’m not sure it does
is ensure that the music marketplace will be fair and navigable to the smaller
players, the indies, and lone rangers who make music because they have to and
can’t be bothered becoming technocrats for the sake of getting the music to
Paul C Rapp is a
high-altitude attorney and budding cheese aficionado who is pleased to be
travelling to Harrisburg PA this weekend to give presentations at the Millennium