Music publishers: ‘copyright should be technology neutral’

Composers, music publishers, and songwriters have told federal lawmakers that regardless of whether music is distributed to consumers via TV, DVDs or digital download, they need legislative help to ensure they get their fair share.

Two weeks ago, I wrote a story about how some of these groups want iTunes and other Web music retailers to pay performance fees for downloads of TV shows and films. They also want online music stores to cough up fees for 30-second song previews. Those revelations didn’t go over well with many techies.

But to get a better understanding of what the artists want from Congress, I asked David Israelite, president and CEO of the National Music Publishers Association, to forward me a copy of a March 10 letter written to members of the Senate Judiciary Committee by a consortium of trade groups representing songwriters, composers, and publishers. He agreed.

In the letter, signed by Israelite and representatives of such groups as Broadcast Music Inc. (BMI); American Society of Composers, Authors & Publishers (ASCAP); and Songwriters Guild of America, the consortium wrote: “Technology should not be used to strip rights from songwriters, composers and music publishers. The choice of certain audiovisual delivery systems or methods over others should not result in a diminution of creators’ rights or royalties.”

The group later made this statement: “There is no question that copyright should be technology neutral” and asked Congress to make “a clarification to the copyright law” that specifically says that “the public performing right is implicated in digital downloads” of audiovisual works that feature music.

“There is no question that copyright should be technology neutral. Technology should not be used to strip rights from songwriters, composers and music publishers”–Music creators wrote in a letter to congress

“We believe Congress intended the current law to be platform neutral,” the music consortium wrote to the Senators. “The conflicting interpretations demand clarification, for without it, performing right income of songwriters, composers and publishers is seriously threatened.”

The lobbying efforts of the songwriters, composers and music publishers continues.

All of this started with the shift in the way the public consumes media. Songwriters and publishers have for a long time collected performance fees from broadcast TV networks and film studios, but now more and more consumers are watching films and TV shows downloaded to their iPods or laptops, which at this point aren’t considered public performances.

A federal district judge court ruled in 2008 that “there is no copyright protection for the public performance right when a work containing music is digitally transmitted for future playing or viewing” the consortium wrote in the March 10 letter.

The music creators have appealed the decision.

How is this the consumer’s problem?
To critics, composers, songwriters and publishers are asking for a guarantee that they will get paid for public performances even if there isn’t any public performance.

Fred von Lohmann, senior attorney for the Electronic Frontier Foundation, an advocacy group for Web users and technology companies, disagrees with the argument that copyright should be technology neutral.

“The Copyright Act has never been technology neutral,” von Lohmann said. “The (Digital Millennium Copyright Act’s) Safe Harbors only applies to online services. There are areas that apply only to cable and satellite providers. The Copyright Act is always trying to strike a compromise.”

He added that music creators already collect other licensing fees, for such things as synchronization rights and he maintains, iTunes or other music retailers shouldn’t be responsible for making up losses for music creators.

“The copyright owner is going to get paid,” von Lohmann said. “Whether it’s called a performance or a reproduction the copyright owner is going to get paid. This is just a turf war between middlemen about who is going to take a piece off the top. The copyright office has tried to broker some sort of solution between the various parties for years with little success.

“We’ll get some more guidance from the courts soon,” he continued, “but I doubt that will be the last word. As (Israelite’s) letter suggests the parties can all go fight it out in Congress now.”

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