The Copyright Office’s new system for registering designated agents for the service of take-down notices when it is believed that user-generated content infringes on intellectual property rights has now gone live. The Copyright Office issued a reminder, here, that all new registrations of agents for the service of these take-down notices must now be submitted in this new electronic system. We wrote more here about the new system and the new requirements for registration, including the requirement that all who are already registered on the old paper forms must re-register in the new system by December 31, 2017. This is important for all media companies who allow third-party users to post content on their sites – whether that content is written articles, photos, videos, music or any other material that could infringe on anyone’s rights under the Copyright Act. Registration is a pre-requisite of getting “safe-harbor” protection for companies who host such third-party content under Section 512 of the Digital Millennium Copyright Act. We discussed this issue in my seminar yesterday on legal issues for broadcasters in digital and social media, the slides from which will be posted shortly.

On Section 512, the safe harbor for those who host user-generated content, the Copyright Office last month issued a Request for Additional Comments in its study of the safe harbor. The safe harbor provides that, if an Internet service provider follows certain rules including the registration of an agent for take-down notices, and some unrelated party uses the service and posts or transmits unauthorized copyrighted material, the service has no liability. Exactly what requirements the service needs to observe depends on the type of the service. ISPs, who provide a mere conduit for material transmitted by others have one set of rules, while companies (including most media companies) that allow content to be posted on their sites to be viewed by the public, have another set of rules that place more obligations on these companies, including avoiding any steps to encourage the posting of infringing content, taking down infringing content of which they have actual notice or for which they have been received an uncontested take-down notice, and otherwise not affirmatively profiting from such infringing content. As part of its role of advising Congress on copyright issues, the Copyright Office began a study of the Section 512 exemption a year ago, which we wrote about here. Congress has also held hearings on the matter, and may well try to tackle it in its reform of the Copyright Act that is supposed to be in the works after the new Congress convenes in 2017. Last month’s request for additional comments suggests just how difficult that the reform of this section will be.
Continue Reading Copyright Office New Electronic Registration for Designated Agents for Take Down Notices Goes Live – and The Office Asks for More Comments on Assessing The Section 512 Safe Harbor for User-Generated Content

The US House of Representatives has been looking at potential reform of the Copyright Act for some time, holding a number of hearings before the Committee here in Washington DC (see, for instance, our article here about one of those hearings). Yesterday, the Committee announced that it is taking its examination on the road, conducting a “listening tour” of the country, starting with a roundtable on music issues to be held in Nashville on September 22. The Committee’s announcement of the listening tour (available here), says that future dates and locations (and presumably topics) will be announced at a later date.   The announcement states:

America’s copyright industries – movies, television programming, music, books, video games and computer software – and technology sector are vitally important to our national economy.  The House Judiciary Committee’s copyright review is focused on determining whether our copyright laws are still working in the digital age to reward creativity and innovation in order to ensure these crucial industries can thrive.

So what are some of the issues that are likely to be considered? On the music side, there are many issues, including questions about the disparity between the payments from digital media companies made to songwriters as opposed to sound recording rights holders (see our article here), the amounts of the royalties themselves (with digital media companies finding many royalties to be too high to allow for a profitable operation while rights holders argue that they are too low to compensate creators for the decrease in the sale of music in a physical form – see our article on how the one-to-one nature of the digital performance complicates the discussion of the value of music when compared with analog performances), issues as to whether broadcasters should pay a performance royalty for sound recordings, and the question of pre-1972 sound recordings (see our last article on pre-1972 sound recordings, here). Many of these issues were addressed by the Copyright Office in its report on reform of the copyright laws as they relate to music (see our summary here). Some of the songwriter issues are also being considered by the Department of Justice in its review of the antitrust consent decrees governing ASCAP and BMI (see our article here).
Continue Reading House Judiciary Committee Begins Nationwide Listening Tour on Copyright Reform – First Roundtable on September 22 in Nashville Focusing on Music Issues

Could the Copyright Office become an independent agency with rulemaking power? Congress is examining all phases of copyright law, as well as the functioning of the Copyright Office. In connection with that review, the Register of Copyrights Maria Pallante (the head of the Copyright Office) sent a letter to John Conyers, the Ranking Member of the House Judiciary Committee, explaining her views on this topic. The letter was sent at the request of the ranking member, made at a recent hearing reviewing the functioning of the Office. In the letter, the Register suggests that the agency be made into an independent agency, like the FCC, to overcome constitutional issues about its powers and to allow it to act as an expert agency to more quickly respond to issues that arise under the copyright laws.

So what are the issues that this proposal raises? The constitutional issue that is mentioned in the letter is similar to the issue that faced the Copyright Royalty Board a few years ago, where a Court of Appeals decision concluded that the Copyright Royalty Judges were not constitutionally appointed under the Appointments Clause of the US Constitution. We wrote about the arguments in that case here. While the specific issue addressed in the CRB case, about the Judges being subject to the supervision of the head of a government agency, do not seem to arise in the appointment and supervision of the Register, another aspect of the Appointments Clause has raised from time to time, asking whether the Librarian of Congress, who oversees both the CRB and the Copyright Office, is truly the head of a department of the executive branch of government. In a government organization chart, the Library technically reports to Congress, not the President, and thus the arguments are that the Library is not a true executive agency (though the President does appoint the Librarian of Congress). While these issues generally have been resolved in favor of the Copyright Office, the fact that they have come up, and never been resolved by the Supreme Court, suggests the constitutional issues which the letter addresses. While this may be very theoretical there are more practical issues that would arise from an independent Copyright Office as well.
Continue Reading Copyright Office Calls for Greater Independence – What Would that Mean?

Extensions of time were just announced in two proceedings affecting music licensing – one a Copyright Office proceeding studying music licensing generally, and another a Copyright Royalty Board proceeding on webcasting recordkeeping.  Only a week after announcing that it would take another round of comments on its music licensing study, the Copyright Office announced an

This is the summer of copyright – as seemingly every government agency with any connection to media issues is looking at music licensing and other copyright issues.  Much press was given to the House Judiciary Committee hearing held last week.  But the Congressional committee’s consideration of copyright issues is but one of the many places where issues of importance to broadcasters and digital media companies are being reviewed.  The Copyright Office is doing its own review of the music royalty landscape (see our articles here and here), and I had the privilege of participating in their first roundtable discussion of these issues in Nashville the week before last.  Also holding hearings on copyright issues is the Commerce Department in connection with their Green Paper, which we summarized here and here.  The Copyright Royalty Board is starting its consideration of the recordkeeping requirements for webcasters and other digital music users (here and here), and also has begun the proceeding to determine the rates to be paid by webcasters for the public performance of sound recordings for the period of 2016-2020 (here and here).  And there is proposed legislation on pre-1972 sound recordings (the RESPECT Act), songwriters’ royalties (the Songwriters Equity Act) and another bill proposing to limit the collection of retransmission consent fees by TV companies that also own radio stations and don’t pay performance royalties to musicians.  On top of all that, law suits are pending in various courts on these and related issues, and the Department of Justice just announced a proceeding to review the consent decrees governing ASCAP and BMI that have been in place for over 50 years. I could easily cover nothing but music issues on this blog, and still not have enough time to write about all the pending proceedings, much less any new ones that may arise as I’m trying to catch up on all that has gone before.  But let’s start with one of the fundamental issues driving a significant part of this review.

Perhaps surprisingly, one of the principal drivers of much of this review of the Copyright laws is not whether there should be a performance royalty for sound recordings paid by broadcasters to record companies and performers for music played over the air, or even issues about the amount of royalties paid to recording artists and labels in the digital world – though much of the trade press (particularly the broadcast trade press) seems to focus on these issues, and to present them as the drivers of all of these reform proposals.  Certainly these issues are alive and important – but the area where there seems to be the most passion, and the strongest lobbying effort for copyright reform of music licensing deals not with performers and labels, but instead with the amounts that songwriters get paid for their use of music – with the debate focusing on how much they get paid by digital services for music streaming, and by the record labels for making “reproductions” of their compositions.
Continue Reading The Summer of Copyright and Music Licensing Part 1 – Songwriters Demand A Bigger Share

On Friday, the Copyright Office extended by one week the deadline for comments on its wide-ranging proceeding on the current music licensing regime and whether reforms are necessary or appropriate.  We wrote about the proceeding and the many questions that it raises here.  Comments are now due on May 23.  Comments can be filed on the Copyright Office website, here

In addition, the Copyright Office announced a series of three roundtable discussions to be held at different sites across the country – in Nashville, Los Angeles and New York.  At these roundtables, stakeholders in the music industry and interested members of the public can address the issues raised in the Inquiry.  Interested parties who want to be considered for guaranteed participation in the round table discussions need to sign up by May 20, using the form available here.  At that same link, the discussion topics for these roundtables are set out – covering the broad range of music royalty and licensing issues raised in the Inquiry.  Clearly, this is an important proceeding in which many in the music and media industries will want to participate – but it is just one of many proceedings that may affect the way that broadcasters and digital media services use music in the future.
Continue Reading Copyright Office Announces One Week Extension for Comments on Music Licensing Inquiry and 3 Roundtable Discussions of the Issues – Just One of Many Proceedings Affecting Music Rights and Royalties

The Copyright Office today issued an Order extending the dates for comments on the Notice of Proposed Rulemaking to determine if, in addition to royalties to ASCAP, BMI and SESAC for the public performance of a musical composition, a royalty is also be due for reproductions of the composition made by real-time webcasting such as

Broadcasters and other digital media companies have recently been focused on the royalties that are to be charged by the record labels for public performance of a sound recording in a digital transmission (under the Section 114 compulsory license administered by SoundExchange).  In a Notice of Proposed Rulemaking issued this week, the Copyright Office tentatively concludes that there could be yet another royalty due for streaming – a royalty to be paid to music publishers for the reproductions of the musical compositions being made in the streaming process under Section 115 of the Copyright Act.  This notice was released just as the Copyright Royalty Board is concluding its proceeding to determine the rates that are to be paid for the Section 115 royalty.  While there have been reports of a settlement of some portions of that proceeding, the details of any settlement is not public, so whether it even contemplated noninteractive streaming as part of the agreement is unknown.

How did the Copyright Office reach its tentative conclusion?  First, some background.  The Office for years has been struggling with the question of just what the section 115 royalty covered.  Traditionally, the royalty was paid by record companies to the music publishers for rights to use the compositions in the pressing of records.  This was referred to as the "mechanical royalty" paid for the rights to reproduce and distribute the composition used in a making copies of a sound recording (a record, tape or CD).  These copies were referred to as "phonorecords."  However, in the digital world, things get more complicated, as there is not necessarily a tangible copy being made when there is a reproduction of a sound recording.  Thus, Congress came up with the concept of a Digital Phonorecord Delivery (a "DPD") as essentially the equivalent of the tangible phonorecord.  But just what is a DPD?


Continue Reading Copyright Office Issues Notice of Proposed Rulemaking That Could Make Section 115 Royalty Applicable to Internet Radio