Rosenthal: US copyright reform will take time

Jay Rosenthal

Jay Rosenthal is an experienced player in Washington, DC and one of the US capital's foremost copyright experts. He has been for many years Senior Vice-President and General Counsel at the National Music Publishers’ Association, for which he continues to work with as consultant, and prior to that he was General Counsel to the Recording Artists' Coalition (RAC), set up by such artists as Don Henley and Sheryl Crow.

This summer he joined the Washington, DC firm Mitchell Silberberg & Knupp. He also looks after the interests of Washington, DC-based electronic act Thievery Corporation and of wrestler-turned-actor Dave Bautista (Guardians of the Galaxy, the forthcoming Bond).

The following is an edited version of his keynote conversation with MW US editor Emmanuel Legrand at the Cutting Edge conference on August 28 in New Orleans.

[This story was originally published in Music Week]

Q: We could have titled this session 'Is copyright fucked!'. So I am going to put that question to you: Is copyright fucked?

Jay Rosenthal: Well, it depends on what side of the fence you are. I truly believe as content owners that we are losing the battle on the politics of copyright. When you look at politics in DC, the biggest issue is always money, and in this context it is money that is losing the battle because Google and the rest of the [tech] companies have come to DC in a major major way. There are now more lobbyists on the ground in DC working for Google than for the whole content industry combined. And we are now seeing the end result of this with what's happening on Capitol Hill and with the administration. Copyright has not gone away in terms of being a big issue. But you have to look at where it all started. It started a couple of Centuries ago when the founding fathers wrote in the Constitution that Congress 'shall' make a copyright law. When they said 'Congress shall' they turned copyright into a political struggle. For many decades, copyright interests have done well. When you needed to have laws that covered new types of work, you'd get them. Now, we are dealing with a completely new dynamic in DC [where] folks that want to push back copyright, who want to minimise copyright in all sorts of different ways [are] having the upper hand.

Is it the concept of copyright that is the problem?

Yes, I think that we are still fighting over what is copyright. Let me give you two angles. In the United States the majority of opinions, legally and also politically, is that copyright is an economic theory. There is a balancing between the users and the creators. There is a lot of public interest and public policy that is now focused on the rights of the users and the rights of technology companies, who create technology whether is it a player piano roll or whether it is peer-to-peer technology or YouTube. There's that dynamic that is equalised. In Europe and other places around the world, and as a minority position in the United States, copyright is a property interest. The idea that there is not really much difference between an intangible property interest in copyright and the way we deal with property is a philosophy that is in a minority here but not in Europe where they've always supported authors rights in a much stronger way, whether you want to call them moral right, natural right, or human rights. Whatever this is, they are dealing with this issue in a totally different way.

There is also the issue of semantics. By calling it copyright in the Anglo-Saxon world, you define a functionality: the right to copy. In Europe, it is called authors' rights and it refers to rights pertaining to a person.

And that is a totally different philosophy. The idea that the property interest in inherent, meaning that whatever rights authors had, they existed before we came along and passed copyright laws, is something that is much more accepted in Europe than over here. Over here, we look at it more as positive law: It is not a law until a legislature passes it and it becomes law. Right now, we treat artists like second class citizens and we do this because we do not recognise their property interests in their copyright.

Overall, there seems to be some sort of defiance against the creative world, right?

It has to do with perception. Anybody who has worked for more than 20 years in this industry knows that we had a whole middle class of producers, writers, musicians, and this class has been decimated in the age of piracy. But the guys at the top, many of them are still doing well. That is used against the rights of artists on Capitol Hill all the time. And it's tough. I just don't know how to overcome it. It is really hard to convey the message that the middle class has been decimated.

We have many of pieces of legislation flying over the Hill, the Copyright Office running an extensive review of copyright, the Judiciary Committee in the House doing a similar review. We have lots of discussions, but not one single decision. Any chance to see anything happening in the next months, years?

No. To understand why, we are like in the 60s when they were discussing what became the 1976 Copyright Act. In Washington, everybody is stepping forward including the artists, the trade associations, the tech companies and many more. Everybody is stepping forward saying this is what we want, this is what we need. I think that true copyright reform will happen in five to ten years. What we are doing now is playing around with everyone who has a stake, making a case, and if they keep engaging with Congress, hopefully there will be a balanced copyright reform. But in the next two years? No way! And everybody is also waiting to see what the Department of Justice has to say about the Consent Decrees.

What are the chances of the Fair Play Fair Pay Act to pass?

Minimal. Because of the gridlock in Washington. There's a saying in Washington: 'It takes a lot less to stop a bill than to pass one.' It is easy to stop a bill. All you need is one or two Congressman. And in that particular context, there is not enough real momentum in my estimation to make it pass. It is a fine piece of legislation: there is equity in it and it's a compromise amongst publishers and sound recording owners. The question is why on earth don't we have terrestrial rights for artists and labels? The simplest way to explain why is that in Washington, size matters. And if you go and look at the size of the building of the National Association of broadcasters, you understand the powers that are against the granting of this particular legislation, even though there are many on Capitol Hill who believe in this.

Although there are a lot of proposed legislation or copyright reviews, not much has happened in over a year. What can explain the gridlock? Is there something wrong in the system?

It is not so much that there something wrong in the system, I think that the gridlock is the end result of politicians who do not want to compromise and make laws. It is more important for them to be re-elected based upon their philosophies, and if you pass a law it would be looked negatively upon you, to a large extend. But there are other dynamics at play that can increase the gridlock, in addition to Google being a player and other tech companies as well. One is that you have more and more Congressman and Senators that are coming from the tech community, directly. The other dynamic is that, because of Citizens United, and the easing of election laws, you have people throwing money out there in a way to promote candidates who are going to perpetuate the gridlock and push back any legislation on copyright. When I say push back against copyright, I mean it. It is push back against the term of copyright, it is push back against statutory damages, which allows litigators to settles things and get some remedies, and to expand fair use as much as possible. That is the agenda of the copyright minimalists and it is pretty scary.

What do you make of the fact that copyleft movement, organisations like the EFF, Public Knowledge, or even the MIC Coalition do say that they act on behalf of the consumers to provide them with more access, more freedom?

I don't think that the rights of consumers should be ignored, I don't think that their political positions should be ignored, but not at the same level as the artists. Making sure that the creators can work, that's what copyright is about, that's what the artists' rights movements have been about. These groups take a lot of money for the tech companies that have been taking advantage of them. They say they are pro-artist or pro-consumers when in fact all they want is the ability to have a business where they pay lower rates. That's all that this is about. If they want to show that they are really pro-artists, they should raise the rates!

I guess that you are not one who thinks that copyright gets in the way of free speech?

Not at all! Copyright is free speech. What gets in the way of free speech is the band that gets dropped by a label because their music has been downloaded too much for free, and that instead of continuing to make music they have to go back to McDonald's. Free speech in the end is making sure that everyone has the capability to speak and create. That's what we should worry about. In the Constitution, the issue of getting the artists paid, that's the greatest contribution to free speech.

Do you think that copyright is adaptable to the digital world?

Absolutely. Yes, we can always adapt and figure out how to make it work.

Will copyright survive the attempts to dumb it down? Will it be strong enough to resist?

Yes, I think it will, because the industries involved and the artists recognise the need to go to the capital of the empire and fight for their rights. If the artists fight like the tech companies do, copyright will survive. Being a political animal is very tough: You have to play with the victories, you have to play with the defeats. But as Woody Allen says, life is about 99% showing up. So if the artists show up and the copyright owners show up in DC, which they already do, it will work itself out. But we will have to wait five to ten years to see really meaningful copyright reform.

Rosenthal on 'perpetual copyright'

I am in favour of perpetual copyright as long as there is a legitimate orphan works regime in place. Orphan works is when you can't find the copyright owner. The idea is that if you have a copyright owner out there that you can't find, then you have a safe harbour for music. This to me is a legitimate way to protect the companies and the users. If I need a work, I will go for the copyright owner. If I can't find him, I can use it, as long as I make a good attempt at finding them. The idea that we cut off rights because it is an intangible property, I don't think that's right. The longer you have your rights, and it applies to any artist as it does to Disney, the longer you can be a professional artist and be incentivised to continue to do so. I hear a lot the argument about why should a deceased artist still have a copyright after they die, and passed it to their heirs. I know of no artists who does not think about their heirs. They want to create if they are assured that their heirs will get those rights, and if they don't, they might simply not create, they will do something else that they can pass on, whether it's a corporation or a house or anything. While it may seem crazy to you that we do away with the public domain, I also believe that the founding fathers created the public domain for possibly other reasons than 'oh, lets' enlighten the rest of the world'. There's a lot of reason why there is a limit to copyright, and the Supreme Court has ruled that as long as there is a limit, it could be 50 years or 300 years, it's constitutional, but my point is to say that on a philosophical matter, a perpetual copyright with a sound orphan works regime is the one that gives the most respect to artists. It is a minority position, there is no doubt about it.