Berklee today

JUN 2016

Berklee today is the official alumni publication of Berklee College of Music in Boston, Massachusetts. It is a forum for contemporary music and musicians.

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24 Berklee today Copyright Matters By David Purcell '91 Any discussion about the music industry of today (and of the future), inevitably leads to a certain theme: copyright law and its role in the digital age and new music industry economy. Whether we're speaking about songwriters, recording artists, record labels, publishers, digi- tal service platforms, or startups, copyright law is at the center of the discussion about how the music industry will continue to evolve in the 21st century and beyond. Questions regarding copyright's role are not just a result of the digital age and its vari- ous implications, including piracy, streaming, home recording, smartphones, and countless DIY opportunities. In fact, much of the discus- sion is tied to the age and applicability of copy- right law to how artists and rights holders cre- ate music, how fans consume and experience it, and how music and copyright can generate meaningful revenue in the digital age. The age of streaming and digital music is a long way from the origins of copyright law. U.S. copyright law has its genesis in England's Statute of Anne (1710), and the U. S. Constitution (Article 1, Section 8, Clause 8). The last major overhaul of this body of law was in the Copyright Act of 1976 (enacted 1978) and various digital copyright legislation including the Digital Millennium Copyright Act (DMCA) of 1998. This article addresses some key points for creators of musical content, whether they be songwriters, recording artists, producers, record labels, publishers, entrepreneurs, digital plat- forms, or entrepreneurs. Two key documents will be addressed. The frst is the 245-page report Copyright and the Marketplace issued in February 2015 by regis- ter of copyrights Maria Pallante, in which she outlined of the key considerations in address- ing music industry copyright issues in the digi- tal age. The second is an April 2015 follow-up with the House of Representatives Judiciary Committee, The Register's Perspective on Copyright Review. What's at Stake For artists, rights holders and entrepreneurs, alike, the ability of artists, companies, and rights holders to generate meaningful rev- enue from their copyrights for sound record- ings and songs in the digital age is what's at stake. The discussion on earning a living from recording and songwriting is not restricted to the United States; it's a point of international dialogue. Recently, France, the home of SACEM, the world's frst performing rights organiza- tion (PRO), introduced legislation proposing the need for a "minimum wage" for artists in the digital age. Assessing the music industry of the future will inevitably touch on several key areas for the future of the music industry, including: music consumption, digital piracy, compensation, and revenue generation for artists and rights holders alike. With that in mind, we'll examine some other key points of consideration from Pallante's reports including moral rights, copy- right infringement, PROs, the parity in online and digital platforms for sound recordings and musical works, and royalty rates and revenue for artists and rights holders. Moral Rights U.S. copyright law is primarily steeped in a pol- icy of economic incentive. In granting authors a right to their respective works, the drafters of the Constitution also laid the groundwork for the creation of countless works without the government having to fund authors in the cre- ation of their works. Copyright law grants a "limited-duration monopoly" to the rights holder and facilitates the ability of the author or rights holder to gain fnancially from the exploitation of copyrighted works. "Moral considerations" such as whether an artist wants, for example, his songs recorded by another artist or made available on specifc platforms, are often addressed in terms of "eco- nomics" and not the author's (artistic) message or intent. Alternatively, the Visual Artists Rights Act of 1990 provides for moral rights protec- tion for creators of visual arts and sculptures in the United States. Unlike laws in European counterparts such as Germany and France, U.S. copyright law is relatively silent on the matter of moral rights and attribution regarding copy- righted musical works and sound recordings. In her April 2015 testimony, Pallante recom- mended further investigation into the role of moral rights, she reiterated that the "rights of authors have been lost in the conversation. . . . They should be the focus." Many members and witnesses throughout the hearings identifed the issues of individual authors, including attri- bution and the ability to say no to specifc uses, as some of the most important elements of a well-functioning copyright system." Copyright Infringement By now, we're used to the refrain of how the Pandora's box of fle-sharing has turned the music industry on its head. In many respects it has. Much of the concern in the music industry about the digital age has centered on nonle- gal activity, such as peer-to-peer fle-sharing. An irony, however, is that much of what con- cerns artists and rights holders is not copyright infringement, but how to effectively monetize their works on legal platforms such as Spotify, Pandora, Tidal, and YouTube—just a few of the legal services that now "compete" with non-legal fle-sharing platforms. While these streaming platforms are, overall, continuing to expand their user and subscription bases, as with any innovation, "cottage industries" of adaptation, or in this case, piracy, abound. Just as we've seen with the MP3, online streaming infringement is proliferating at a rapid pace. And with millions of music con- sumers growing up in the age of fle-sharing and free music, many of today's music fans are accustomed to streaming music online, wheth- er through a legal platform, such as YouTube, or a nonlicensed streaming platform such as Grooveshark, which in 2015 was offcially shut down after nine years of operation and millions of unlicensed performances. Copyright infringement can lead to felony criminal penalties and charges in instanc- es of willful (or intentional) infringement, whereas acts of illegal streaming presently result in a maximum of misdemeanor charg- es and penalties. On this issue, Pallante advocates felony penalties in line with those related to piracy and unlawful distribution. Specifcally, she stated, "As streaming becomes a dominant method of obtaining content online, unlaw- ful streaming has no less of an adverse impact on the rights of copyright owners than unlawful distribution." PROs In 2014, ASCAP celebrated its 100-year anni- versary, and its legacy of important innova- tions that PROs have created to secure the rights (and revenue generation) of songwrit- ers and publishers. The age of streaming, however, has ush- ered in important questions about the future roles of ASCAP, BMI, and SESAC. For example, do publishers need PROs to account for perfor- mance royalties on platforms such as Spotify and Pandora when they can work directly with these digital platforms instead? Historically, PROs have served as an impor- tant go-between and advocate for artists and Some key issues that creators of musical content should understand

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