Monday, November 7, 2016

US elections: The music community outlines its agenda

[This story was originally published in Music Week]

On November 8 the United States will vote for a new President and Congress. What does it mean for the music community? Emmanuel Legrand reports from Washington, DC.

The Capitol in Washington, DC
Unless you were on planet Mars, it's been hard to escape the fact that there's a presidential race going on in the United States. US electors will vote on November 8 to chose their new President for the next four years and the choice is between former Secretary of State Hillary Clinton and real estate entrepreneur and reality TV showman Donald Trump. 

The Presidential contest might be grabbing the headlines, but on November 8, the country will not only elect a new President of the United States (POTUS in White House lingo), it will also renew Congress, as a total of 34 Senate seats (out of 100) and all 435 House of Representatives seats are up for election. 

The US Constitution, explains David Israelite, CEO of the Washington, DC-based National Music Publishers' Association, vests a lot of power in the President but “it is not a parliamentary system where who wins the Presidential elections also wins the legislative, so we can have a different leadership in the White House and in Congress, and that makes it difficult to have a consistent policy.” 

For the creative industries, the election is a chance to pass on a few messages to the incoming powers both at the White House and in Congress. As Martin Bandier, the New York-based Chairman/CEO of leading music publishing house Sony/ATV, puts it, "It is always great to have an election -- it creates opportunities, but at the end of the day our issues look so minimum when compared with the big issues. But it would be great if whoever gets elected gets to improve the situation of songwriters." 

Israelite, who is a seasoned executive with experience of the US political system having worked previously for the Department of Justice, is on the same page as his board member: “Copyright issue are not very high profile in this Presidential election. The two campaigns have not really discussed these issues. Some would like to raise the profile on those issues but it is difficult to crack through the main issues that dominate the space.” 

Other priorities 

In other words, copyright is far from being on top of the agenda of the two presidential candidates. Representatives from the industry take the view that any incumbent at the White House will have other priorities to deal with. “I think that the President operates at a 50,000 foot level,” says Mitch Glazier, Senior Executive Vice President at the Washington, DC-based Recorded Music Industry Association of America (RIAA), who adds that the way the next President will makes his of her mark on these issues through appointments at the Department of Justice or other government units, like Obama did when he appointed the new Librarian of Congress earlier this year. 

None of the two candidates has issued a position paper on copyright issues. The Clinton campaign has issued a paper on technology issues (titled “Hillary Clinton’s Initiative on Technology & Innovation”) in which Clinton pledges for “an ambitious national commitment to technology, innovation and entrepreneurship.” 

The paper states that Hillary Clinton’s priority “is to harness the power of technology and innovation so that it works for all Americans, creating good-paying jobs throughout the country. Doing this right will not only boost economic growth, it will lead to immeasurable social benefits.” In the paper, Clinton makes a case for an open internet and champions a “multi-stakeholder approach” to internet governance, while embracing “net neutrality.”

Only one paragraph in the whole document discusses the need for “effective copyright policy.” In it, Clinton says that “the copyright system has languished for many decades, and is in need of administrative reform to maximise its benefits in the digital age.” Under her administration, the federal government will “modernise the copyright system by unlocking—and facilitating access to—orphan works that languished unutilised, benefiting neither their creators nor the public.”

She says she will also “promote open-licensing arrangements for copyrighted material and data supported by federal grant funding, including in education, science, and other fields. And she will “encourage stakeholders to work together on creative solutions that remove barriers to the seamless and efficient licensing of content in the US and abroad.”

This platform, which has not yet been matched with a similar document in favour of copyright-led industries, has let many in the industry frustrated and with the belief that like the Obama administration, Clinton's will be very much pro-tech. “I don’t really have much idea what Mr. Trump’s views are on IP, but he is someone who is concerned about both the value of brand and television production,” says Chris Castle, an Austin, Texas-based lawyer, who is also a vocal pro-copyright activist through his blog Music-Technology-Policy.

He adds, “Secretary of State Clinton wrote a letter to former Rep. Howard Berman supporting SOPA. On the other hand, Google’s Eric Schmidt has continued his political data mining operation started with the Obama campaign through a company he funds called The Groundwork. The Groundwork has one client: Hillary Clinton. I’m quite skeptical that a President Hillary Clinton will take an aggressive position on artist rights."

 A Google-owned White House 

This sentiment that the current Democrat administration, which could be followed by another Democrat at the White House, has not been pro-creators and pro-copyright (after all, President Obama was the one who confined the SOPA bill to the legislative graveyard), is very prevalent within creator's circles, exemplified by the likes of Castle or performer and activist David Lowery. 

NMPA's Israelite believes that “the White House has become a wholly-owned subsidiary of Google during the Obama administration. We still suffer from it and we would like to change it.” He adds, "We on the copyright front would like to see the administration to have a real appreciation for the value of creative industries and what they bring to our economy. That's been lacking with the past administration."

However, Washington, DC-based Daryl Friedman, the Chief Industry, Government & Member Relations Officer for the Recording Academy, the organisers of the Grammy Awards, who also undertake advocacy initiatives on behalf of the music industry, is quite positive about the track record of candidate Clinton, a former Senator and Secretary of State. "She has been a strong supporter of IP," he says. "We have a good record for her whereas for Trump, we don’t have a track record as he never served."

For many in Washington, DC, rather than putting too much expectations on the next White House incumbent, the focus of the industry is on Congress. "This an unusual election year and an unusual Presidential election in the US," says with a sense of understatement Ann Sweeney, SVP of Global Policy for performance rights organisation BMI. "From point of view of stakeholders who would like copyright reform to be higher on the agenda. Candidate Clinton has put out a tech paper, but that's all. While it matters who is going to be President, from a legislative perspective, and considering what we have in progress, who is in the House and Senate matters more." 

Currently controlled by the Republicans, the House of Representatives has been the epicentre of the legislative action (or lack of) during the past legislature, with the chair of the Judiciary Committee, Bob Goodlatte, calling the shots. One of the rule in US Congress is that copyright issues have a bipartisan approach. All the bills are usually jointly sponsored by a Republican and a Democrat. Goodlatte has been busy in the past two years running a due process on copyright issues with hearings and calls for comment from stakeholders and the likes of the US Copyright Office. So far with without any significant output.

The industry in expecting Goodlatte to be re-elected and he still has two years to serve as chair of the Judiciary. "Copyright are complex issues," says Daryl Friedman. "Chairman Goodlatte wants to focus on areas of consensus and the fact that he’s spent so much time on these issues demonstrates that he wants to move." 

Search for consensus 

What rattles some in the industry is that this search for consensus not only within the political spectrum but also among stakeholders resulted in very few decision made. In private some industry voices have lamented at the slow pace of Goodlatte's agenda, but admit that consensus it probably the only way to get bills passed. Whether it will be a full package or a scattered number of bills remains to be seen. "A comprehensive package is a strong possibility but not a certainty," says BMI's Sweeney. "We have two more years of leadership of Goodlatte, and he has stated consistently that he'd like to lead copyright reform during his leadership, but he wants broad industry consensus."

BMI, as does sister society ASCAP, are pressing for legislative changes relating to the way they operate, namely the Songwriters' Equity Act, which would allow a fairer market review process when setting the rates applied to performance rights organisations, and a reform of the consent decrees that have been ruling the two societies since 1941. "The Songwriters' Equity Act has both Democrat and Republican support in both chambers," says Sweeney, who is optimistic that this bill will eventually get passed. 

The role of the Senate on copyright issues has been rather minimal over the past years, but Michele Ballantyne, EVP of Public Policy & Industry Relations at the RIAA, says that "there is a good likelihood that they [Senators] will want to get more involved as they have shown that they want to be more willing to play an active role." 

NMPA's Israelite concurs: "In Senate, there is less activity on copyright and there is more in play as to who will control it, but time may be right for Senate to look at these issues. Maybe Senators Patrick Leahy or Chuck Grassley would have open ears for copyright issues. 

The industry has quite a few issues on its agenda, from performance rights for performers and labels when recordings are played on terrestrial radio (Fair Play Fair Play act), to the Songwriters' Equity Act, but also the small claims tribunal that would allow individual creators to have a lower arbitration court to solve infringing cases without having to go to Federal Court. The reform of the US Copyright Office is also one of the hot potato in DC.

And, of course, there's a focus on the previous copyright act, 1998's DMCA, for which many in the industry would like to see a better and more efficient take down system. "Within music licensing issue, which are a lot of process issues, there could be a consensus," says RIAA's Glazier. "What's sure is that Congress will move on several issues where there is consensus. I don't think we are unrealistic. We can get together and fix it."

Glazier also believes that on occasions Congress can twist some of the stakeholders' arms to reach a consensus, including Google. "Google have 125 issues, and copyright is issue 57, not one or two," says Glazier. "The risk [for Google] is that Congress could be focusing on issues such as security, data and privacy, so they do have to be careful and may have some incentives to show that they can do better in other areas."

Focus on the Judiciary Committee 

The attention of lobbyists is also focused on the aftermath of the Goodlatte era, as he still has two years to go as chair of the Judiciary, and speculation is mounting as to whom could potentially replace him. The vice-chairman of the Judiciary Committee, Representative Daryl Issa, is widely expected to "have a shot at it," according to NMPA's Israelite, bot for that first the Republicans must keep the House and Issa needs to get reelected. "Issa is a very smart member [of the House], he has more of a tech community background but a he is a conservative and believes in property rights, so he should be inclined to support songwriters," says Israelite. 

For RIAA's Glazier, Issa could also be a good choice, although he is seen by many as being pro-tech. "He is the lead sponsor on the Fair Play Fair Play act and an ardent supporter of performers when comes to broadcast radio," says Glazier. "In his mind the future is in new technology, but if he sees a real unfair practice, he will go after them. It's a mixed bag." 

For a sceptic like Castle, there is little chance to get fixes on issues like the DMCA take down notices. “Given that Google employs more lobbyists than there are Members of Congress, it seems unlikely that any legislation will pass the Congress that Google doesn’t want absent convictions rising out of a major corruption probe that doesn’t seem likely to happen either. Nobody is guarding the guardians and that promises to hold true regardless of who is in the White House." 

Sony/ATV's Marty Bandier believes there is indeed a gap between the outreach of the music community and that of the tech industry. "There's only a small number of songwriters who contribute to campaigns," says Bandier. "And there are huge companies like Google and Amazon who are going to make sure that if there is a change of administration, it will go their way." 

Nonetheless, with a few weeks to go before the elections, two organisations have taken grassroots initiatives to try to raise awareness to the issues at stake for the creative community. One of the initiatives came from The Recording Academy, which is organising October 26 and vast grassroots operation, as it has done on the past years, covering the whole territory called Grammys in My District. On that day, over 2,000 artists, musicians, songwriters will visit their representatives in over 315 Congressional districts. "Two weeks before the elections, hundreds of creators will be going to their local congressional offices to talk about their business. The sheer number of participants and districts demonstrates that the music community is spread across the country, where they pay taxes and run their small businesses. This is an occasion for us to raise awareness at a local level."

Grassroots campaign 

In addition, the Copyright Alliance and CreativeFuture, two organisations that support creators, have issued letters to candidates and launched a petition, which has so far received the backing of 35,000 people, in which a few principles are outlined: creators are for an open internet but also needs strong copyright protection that rewards creativity, promotes a healthy creative economy and protects free speech. 

Keith Kupferschmid, CEO of the Washington, DC-based cross-industry advocacy group Copyright Alliance, makes clear that as a trade body, "we don't chose between Republicans or Democrats, but we are interested in that whoever takes office can enact strong copyright policies. Elections are very important for us because whichever individual is elected to office, we want to make sure they have a certain respect and understanding of copyright, regardless of their party. Creators need a seat at a table when policies are made in Congress and other places." 

Adds Kupferschmid, "We will organise this petition every year there is an election. We want to get this message to all policy makers. The general theme being that we are not picking a side, we only pick the pro-copyright side. Copyright made us leaders in film, music, books, games and we have to make sure that continues."

What US music executives expect from the next administration/Congress

[This story was previously published in Music Week]

By Emmanuel Legrand

As the US prepares to vote for a new President and a renewed Congress, Music Week asked music industry professionals two questions: 1) What would be the three main copyright-related issues that you'd like to see fixed by the next President/Congress? And 2) And what is the likelihood that these issues will indeed be fixed during the next four years? Here are there answers. 

Martin Bandier, Chairman/CEO, Sony/ATV

1) One of the things I'd like in terms of legislation would be to reverse what the Department of Justice has decided on 100% licensing and allow for fractional licensing. That is clearly one thing I'd want to see, and anybody who's in the licensing business would like that too. If no one is clear if BMI and ASCAP have the right to license a song, it is an unsustainable interpretation by the DoJ of what the consent decree says. I'd also like to see the continuation of us [music publishers] being allowed to selectively withdraw copyright and the was the major reason for going to the DoJ. It made no sense in 2014 when we first went to the DoJ that we should be restrained to a 1941 consent decree so that we could not license directly certain of our songs or catalogues to all the music users. It created a fair market place create a level playing field instead of procedure that pushes ASCAP and BMI to the lower end of the value of songs.

2) I don't know what can happen. Copyright legislation is difficult to pass; there are so many variable and unless everyone gets on board, it can take a long period of time. And during all that time, this would keep songwriters in a unenviable position in terms of what the music is worth. There are too many powerful forces that have tremendous resources and spend a lot of money on lobbying. I don't know how easy it would be to get legislation at all, but we have to try. ASCAP is supposed to take the lead and will work with the NMPA and with other songwriters organisations so that everyone is on the same. But it is not going to be easy. 

Richard Burgess, CEO, A2IM 

1) Our three main issues are: Terrestrial radio rights for sound recordings; section 512 [of the DMCA] on notice take down needs to be fixed; and we need to sort out the Department of Justice's consent decrees and resolve the issue of 100% licensing.

2) Based on past history, there is no chance that these issues are going be fixed, but where we could make progress is if all the parties in the music industry agree among ourselves, and if we can come to agreement with the tech industry, but we are a long way from that. In the end, it comes down to money and how much money you can spend on lobbying. Take terrestrial radio. It is offensive that artists and labels don't get paid when music played on radio. The USA are out of line with the rest of the world and in line with Rwanda, China and North Korea. That because of the lobbying power from the other side [the National Association of Broadcasters], and the benefits they can offer to Congress people. We have to be realistic with what we can achieve. It is hard to go against them. The worst part it that it is costing America and American artists, because we are not getting our reciprocal rights an money [from neighbouring rights] are not flying back into America. 

Chris Castle, Attorney, author of the blog Music-Technology-Policy. 

1) The top three issues to me would be somewhat US centric: ASCAP and BMI consent decrees; compulsory mechanical licenses; and DMCA reform. Each has a minor fix and major fix. Two of the three relate to songwriters who are probably the most highly regulated workers in US history.

2) Given that Google employs more lobbyists than there are Members of Congress, it seems unlikely that any legislation will pass the Congress that Google doesn’t want. Nobody is guarding the guardians and that promises to hold true regardless of who is in the White House. It will take a major grassroots effort to accomplish real change. The #irespectmusic campaign is a great start down that path. 

David Israelite, CEO, NMPA

David Israelite

1) We believe that there are many issues that are ripe for change. First, ASCAP and BMI's Consent Decrees. The Department of Justice is out of control in regulating a business it has no reason to regulate. It is time for Congress to look at why the government continues a consent decree that never ends. We'd like rate standards to be set on the basis of a willing buyer and a wiling seller. We also could work with the tech community to fix the licensing system and that could be ripe for consideration.

2) There is a lot of work coming up on these issues. Copyright legislation is very hard, there are different interest and it can get messy. Next Congress will see the last two years of Bob Goodlatte as chairman. He has been engaged in long process so we are hopeful that when he decides to act we would have a chance to remove government regulations. 

Elizabeth Matthews, CEO, ASCAP 

1) Music creators today face extreme hurdles in their ability to seek a fair value for their work thanks to music licensing laws that have not kept pace with the advent of new technologies. We need to modernize the 75-year old consent decrees that govern how ASCAP and BMI operate to ensure a strong collective licensing system that continues to protect music creator rights while providing access to the music that we all love. We need a set of laws that give the PROs and our songwriter, composer and music publisher members more flexibility to adjust to wherever the marketplace takes us.

2) ASCAP is proactively working closely with BMI, other music industry stakeholders and members of Congress to develop the framework for addressing these issues. This is not the first regulatory hurdle we have faced and it certainly will not be the last. We have many allies in Congress and we are hopeful that these critical modifications will be addressed in order to protect the future of songwriting. 

David Lowery, songwriter/performer/activist 

1) DMCA reform, Take Down Stay Down type scheme; An audit right for compulsory licenses; An antitrust exemption for PROs (sports leagues have this, farmer co-ops, unions).

2) Clinton wins. No doubt. Clinton has subordinated copyright to tech policy. It's right there in her tech platform. Google/Eric Schmidt is deeply involved in her campaign. Google will block meaningful reform by exerting influence on Clinton. No hope. 

Blake Morgan, songwriter, performer, label owner, founder of the movement #IrespectMusic

1) Pass the Fair Play Fair Pay Act, ensuring artists would receive pay for (all forms) or radio airplay for the first time. Pass the Songwriter Equity Act, ensuring songwriters would receive fair market value for their work. Increase the budget for the National Endowment for the Arts by a factor of 40 (not a typo), ensuring the United States would then at least spend as much on the arts as Germany.

2) The likelihood these issues will indeed be fixed are 1: 90%; 2: 90%; 3: 0%. So, two out of three ain’t bad. :) 

Keith Kupferschmid, CEO, Copyright Alliance. 

1) We really need to modernise the Copyright Office. Groups out there are trying to highjack and make it a policy issue. It is not about politics; it is about having the tools to service the community. We hope that the USCO will have its own budget, staff, IT system and that the person who runs the Office should be a presidential appointee. We need a small claims tribunal. Small creators are individuals who have rights but no remedies because cannot they afford to go to court. This would solve the problem. And we need to work towards voluntary agreements with all stakeholders, outside from waiting for the Congress to find agreements. One such agreement could be on improving DMCA take down notices.

2) I am hopeful that all three things can happen within the next four years, and maybe more. 

Neil Portnow, President and CEO, The Recording Academy. 

1) The one consensus area in copyright is music licensing: all parties agree it's broken, and Congress' own advisor, the Copyright Office, produced a comprehensive recommendation for a fix. Within music licensing, first and foremost, we need to close the corporate radio loophole. While there are many important fixes needed to ensure fair rates, this is a case where there's not even a right. Also important that we bring songwriter regulations to a fair market standard by updating the mechanical rate standard and performance royalty consent decrees. Finally, we must fix the outdated and impractical "notice and take down" process. It takes creators away from their work and forces them to police the entire internet instead.

2) The entire copyright community has great confidence in Chairman Goodlatte and believes that after so many years of study, he will use the 115th Congress to pass meaningful copyright reform. He is someone that all sides trust to be an honest broker, so at this point, progress is entirely in his hands.

Ann Sweeney, SVP of Global Policy, BMI 

1) Our legislative agenda is dominated by the Songwriters Equity Act. It contains only two provisions, which makes it a narrow bill. It would result in amending sections 114 and 115 of the Copyright Act and would give broader authority to judges to consider all evidence when determining what the appropriate rates should be. It is important for for BMI because it would enable rates to be set from a position of full information of what the market value is. The Bill exists in current legislative session and it has both Democrats and Republicans supporting it in both chambers. And there is the reform of the Consent Decrees. One possible path is to pursue legislation for consent decree reform. We will determine over the next few months if we need more work done on legislative level.

2) The time frame for this to happen is probably the next two years, because of the leadership of Chairman Bob Goodlatte. He stated consistently that he'd like to lead copyright reform during his leadership. We are optimistic and we are dedicating people and resources to do all we can because these issues matter the most to songwriters, publishers and to the global music community. We are as optimistic as can be. 

[Read also: US elections: The music community outlines its agenda]