Creative sector welcomes the new Biden-Harris administration but has some concern about its policy towards tech companies

By Emmanuel Legrand

With new Joe Biden-Kamala Harris administration on its way to take over the country on January 20, 2021, the creative sector feels that there is going to be a creators' friendly White House that will also help push for a strong copyright agenda, but with questions about the new administration's policy regarding tech companies.

  President-elect Joe Biden is seen as a political operator who has vast legislative experience, mostly gained as a member of the Senate's Judiciary Committee. As such, he has been involved in a wide range of legislative proposals, including copyright-related bills. And Harris, hailing from California, is familiar with issues related to entertainment and big tech.

  "Both have a long track record of basic support and fluency with entertainment business and copyright-related issues,” said Jonathan Lamy, former chief spokesman for record labels' body RIAA and Founder/CEO of Washington, DC-based JLLCommunications. “Senator Biden was Chairman of the Senate Judiciary Committee and involved in virtually every copyright debate in recent memory. At the White House, he was a champion of a variety of relevant initiatives, such as advocating Chinese government to open its market to US motion picture studios."

Fluent in the music business

  He added: “Similarly, Harris, both as California Attorney General, where she was involved in state counterfeiting cases, and then as Senator, where she co-sponsored the Music Modernisation Act, is fluent in the music business.”  

  David Israelite, President & CEO of the National Music Publishers' Association (NMPA), said President-elect Biden "has a long track record” on intellectual property issues. He added: "From his time in the Senate where he served on the Judiciary Committee to his position as Vice President where he took a leadership role with the IP Czar, Mr. Biden has always supported songwriters." 

  Biden also has a proximity with the film industry, since he worked at the Senate with Chris Dodd, the former chairman of the Motion Picture Association, and is also close to the current MPA chairman Charles Rivkin, who worked in the Obama administration. Deadline noted that several Biden advisers have ties to the MPA, such as Biden's deputy campaign manager Kate Bedingfield, and T.J. Ducklo, his national press secretary. Biden is also on friendly terms with Gordon Smith, the chairman of the National Association of Broadcasters, whom he knew from his Senate days. 

Treating creative works with respect

  Daniel Glass, the founder and CEO of New York-based Glassnote Records, has cultivated over the years contacts with Harris. “Kamala was somebody I met and she had been dealing with all these things about California: entertainment, tech, culture, and law and order as attorney general,” he explained. “She is smart and when there is stuff that she does not know, she says she will look into it, and she does.” 

  Glass expects creators to find their way to the White House, after four years of mutual disdain. “Kamala loves music and she surrounds herself with cool people,” he said. He even surmises that the interest of the new leadership in the creative sectors could be reflected in the appointment for the first time of a Secretary for media, technology and entertainment. “Literature, films, music, compositions, all this is important to the American Dream,” said Glass. “It needs to be treated with respect and with value.”

Kamala Harris with Glassnote's Daniel Glass

  Glass said that over conversations with Harris he pushed the notion that creators need compensation for their work. “Compensation is on everybody's mind,” he said, noting that while tech companies are making trillions of dollars, a lot of it their value comes from exploiting creative content. “We have to make sure artists are compensated.”

Supportive of copyright owners

  Neeta Ragoowansi (pictured, below), President of the Music Managers Forum-US, said that as Chair of the Senate Judiciary Committee, which oversees intellectual property, including copyright issues, Biden was “very supportive of creators and copyright owners, as well as of enforcement of copyrights.” That bond, according to her, was also reflected in the way many creators and recording artists were supporters and “actively campaigned” for his Presidency. “We are hopeful that he will continue to choose creators and take creators' interests to heart,” she added. 



  For Teri Nelson Carpenter (pictured, below), who is National Chair and President of the Los Angeles Chapter of the Association Of Independent Music Publishers (AIMP), there are little details available about the type of policy towards the arts and copyright that the new Biden administration had discussed during the campaign. “However, we know that the Biden team respects the rights of musicians, because they properly licensed the music for their campaign. In addition, VP-elect Harris is a former board member of the SF Jazz Center, so we know she is acutely aware of the challenges of the live sector and the impact music can have on the community.” 



  Glass believes that the Biden administration will take a different stance than the Obama administration with regards to technology companies. Silicon Valley operators were very comfortable with the Obama administration and many in the creative sector were lamenting what they saw as the undue influence of the likes of Google on policies. “It was an uphill battle,” admits Glass.

Scrutiny over diigital platforms

  Biden has connections with Silicon Valley executives, such as former Google CEO Eric Schmidt, who was a key fundraiser for Biden, or former Apple executive Cynthia Hogan, who worked on his campaign. However, many observers do not see how Silicon Valley could have the same influence as on the Obama administration, since a lot has happened since 12 years ago. Since then, the Cambridge Analytics scandal took place and Facebook, Twitter, Google, and Amazon are under the microscope of US policy-makers.

  "This is a totally different power game to the one the Obama administration was dealing with,” commented Helen Smith (pictured, below), Executive Chair of Brussels-based indie labels' body IMPALA. “I would expect to see the Biden and Harris administration embrace the need for greater scrutiny over platforms, in the same way as we see in Europe and elsewhere. This is essential to address not only the value gap, but to rewrite the rules of engagement online.”



  The view is echoed by James Burgess, President and CEO of indie labels' body A2IM, who thinks it is “really unlikely” that the new administration will be as tech-compatible as Obama's. Matt Hill, a spokesperson for President-elect Biden, told the New York Times that the new administration would likely take an aggressive stance toward the tech industry. “Many technology giants and their executives have not only abused their power, but misled the American people, damaged our democracy and evaded any form of responsibility,” Hill said. “That ends with a President Biden.”

Need for a stimulus package

  Others are less convinced. AIMP's Nelson Carpenter noted that Biden, in his first time in office, “was very close to big tech – Google in particular – and that is not necessarily a positive sign for the creators and copyright protection especially in the digital marketplace.” She said many in the industry fear that the Biden administration “will be pro tech and not fully embrace the issues of creators.” She pointed out that “already many senior people from tech industries have been included in the Biden transition team."

  The new administration is expected to be fully focused on the economy and the Covid-19 pandemic, as the number of daily cases are rapidly growing throughout the country. “Covid-19 is their main focus as it should be for any administration,” said Nelson Carpenter. There is likely going to be a new big stimulus package, which could include provisions for the creative sector, in particular live music (such measures were part of the second package passed by Democrats in the House in September, but failed to win the Republican-dominated Senate). 

  As a matter of urgency, Burgess would like the new administration to come up quickly with a post-Covid recovery package that would include measures for small and mid-size businesses such as labels, as well as songwriters and artists. A Covid plan for the creative sector is "overdue by a long shot at this point and unthinkably overdue if we have to wait till after January 20th."

Reform the DMCA

  For Nelson Carpenter, “we need to get live entertainment as well as film, TV and advertising back into action safely. Production, recording and songwriting as well. There needs to be a way that creatives from all sides can create together in a safe way and not just via zoom as there are definite limitations to that technology.”

  A lot of the political action will take place on the Hill. Changes in taxation policy are also planned, but many DC-based sources point out that with razor-thin majorities in the House and a likely Republican Senate, taxation issues will need strong bi-artisan support to be voted, and will not be an instant win for the Biden administration. 

  For many executives interviews, some of the top issues on the copyright agenda are the reform of the Digital Millennium Copyright Act (DMCA), which has been initiated by the Senate's  Intellectual Property Subcommittee, and the introduction of a performance right for sound recordings on terrestrial broadcasts. Ragoowansi noted that on the latter issue, legislation has been introduced in various forms over the past many years, and Senator Thom Tillis (R-NC), who won his re-election campaign and is Chairman of the Senate Intellectual Property Subcommittee, could play an important role. “There may be some continuity on this issue,” said Ragoowansi. 

Need for performance rights on recordings

  Tillis and Jerrold Nadler (D-NY), won his reelection campaign and is Chair of the House Judiciary Committee, are expected to be the two most influential policy-makers on the Hill. Nadler is particularly highly regarded by the creative community as he has been sponsoring or co-sponsoring many bill favourable to creators. “Chairman Nadler has been hugely supportive of creators and copyright owners rights and was the lead sponsor for the performance right in sound recordings on terrestrial radio legislation as well as a key force behind the passing of the Music Modernisation Act,” noted Ragoowansi.

  For IMPALA's Smith, establishing a proper terrestrial performance and broadcast right for sound recordings, should be “the biggest priority for the music sector.” She added: “The absence of a domestic right makes the US an outlier in terms of copyright and costs American performers and labels millions every month. It is a complete anomaly and out of line with 99% of all the US’ trading partners.”

  Ragoowansi also expects the new administration to looks at this issue from the perspective of American creators and copyright owners, and make sure that American artists and label could collect neighbouring rights throughout the world. “Music creators should be treated equally regardless of their nationality,” she said. “American artists are denied reportedly more than $330 million in royalty payments a year. Especially given the grave economic impact of the pandemic, now more than ever, recording artists and other music creators need to be paid for their work. We are hopeful the leaders appointed to address trade in the new administration will make these issues a priority.”

Raise IP standards in the world

  For the UK, the new administration comes in as the two countries are negotiating a trade agreement. "It is important that the UK preserves its strong IP regime in the ongoing trade negotiations, and works with the US as a partner to raise standards of IP protection elsewhere in the world," said Geoff Taylor (pictured, below), Chief Executive of the BPI, BRIT Awards and Mercury Prize.



  The arrival of a new administration usually opens a period of uncertainty, but in this instance, there is a genuine goodwill for the new leadership that will introduce a different climate in Washington. "Here’s the reality check,” explained Lamy. “You are always better off in any conversation if the policymaker begins with a basic understanding of what you do and your value contribution. So it is extraordinarily helpful that the top of an Administration to have that knowledge base on day one. That said, the issues confronting the Administration and consuming their attention are both existential and epically challenging. It is hard to imagine anything breaking through in the short term beyond addressing the global pandemic and economy, which are obviously intertwined.” 

  He concluded: “The other aspect helpful to the creative community broadly is more comfort coming to Washington and publicly supporting particular causes. Washington has become so toxic and politicised, and few people wanted to come and publicly advocate for an issue for fear of their participation being weaponised in the broader political fight around Trump. A lowering of the political temperature, even if modest, makes individual creator advocacy a little more feasible.”