Thursday, April 21, 2016

Compulsory Licenses Should Require Display of Songwriter Credits

I participated in a symposium in Washington, DC on April 18 on the subject of “moral rights” sponsored by the U.S. Copyright Office and the George Mason University School of Law’s Center for the Protection of Intellectual Property. The symposium’s formal title was “Authors, Attribution and Integrity” and was at the request of Representative John J. Conyers, Jr., the Ranking Member of the House Judiciary Committee. (The agenda is linked here. For an excellent law review article giving the more or less current state of play on moral rights in the U.S., see Professor Justin Hughes’ American Moral Rights and Fixing the Dastar Gap.)
The topic of “attribution” or as it is more commonly thought of as “credit” is extraordinarily timely as it is on the minds of every music creator these days. Why? Digitial music services have routinely refused to display any credits beyond the most rudimentary identifiers for over a decade, and of course the pirate sites that Google drives a tsunami of traffic to are no better.
Yet these services frequently rely on government mandated compulsory licenses (in Copyright Act Sections 114 and 115), near compulsory licenses in the ASCAP and BMI consent decrees, and of course the sainted “safe harbor”, the DMCA notice and takedown being a kind of defacto license all its own particularly for independent artists and songwriters without the means to play. They get the shakedown without the takedown.
Moral rights are typically thought of as two separate rights: “attribution”, which is essentially the right to be credited as the author of the work, and “integrity” the author’s right to protect the work from any derogatory action “prejudicial to his honor or reputation”. They can be found most relevantly for our purposes in the Berne Convention, the fundamental international copyright treaty to which the U.S. signed on to in 1988. (Specifically Article 6bis.)
It is important to understand that the United States agreed to be subject to the international treaties protecting moral rights and that these rights are different and separate from copyright.
Moral rights transcend copyright and protect the author’s persona, or the author’s “honor and reputation.” Copyright is thought of as an economic right, while moral rights continue even after an author may have transferred the copyright in the work. Even so, both the moral rights of authors (and the material rights) are recognized as a human right by Article 27 of the Universal Declaration of Human Rights. Or as Gloria Steinem said, artist rights are human rights.
The question then came up, why should the U.S. government require songwriters to license their works through the compulsory license without also requiring proper attribution consistent with America’s treaty obligations, good sense and common decency?
Why not indeed.
It is important to note that there are certain requirements relating to the names of the authors that are required by regulations for sending a “Notice of Intention” to use a song under the compulsory license which is what starts the formal compulsory license process. The required “Content” of an NOI is stated in the regulations is:
(d) Content.
(1) A Notice of Intention shall be clearly and prominently designated, at the head of the notice, as a “Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords,” and shall include a clear statement of the following information....
(v) For each nondramatic musical work embodied or intended to be embodied in phonorecords made under the compulsory license:
(A) The title of the nondramatic musical work;
(B) The name of the author or authors, if known;
(C) A copyright owner of the work, if known...
As I suspect based on the various songwriter lawsuits against Spotify over its apparent failures in the handling of these NOIs, the “if known” modifying “the name of the author or authors” is actually translated as “don’t bother” as most of the form NOIs don’t even have a box for that information. This is a bit odd, because if the song is registered with the Copyright Office, the names of the authors most likely are listed in the registration and thus are “known.”
The question for moral rights purposes, of course, is not whether the music user sends the names of the authors in the NOI-presumably the copyright owner already knows who wrote the song. The question is whether the music user displays the names of the authors of a song on their service, or better yet, is required to display those names so that the public knows.
This seems a very small price to pay when balanced against the extraordinarily cheap compulsory license that songwriters are required to grant with very little recourse against the music user for noncompliance. (Short of an unimaginably expensive federal copyright lawsuit against a rich digital music service, of course.) As the Spotify litigation brought by songwriters is demonstrating, these services only have about a 75% compliance rate as it is, if that much.
It is pretty commonplace stuff for liner notes to include all of the creative credits. So who is behind the times? The artist releasing a physical disc with all of these credits, or the digital music service with its infinite shelf space that doesn’t bother with 95% of them-particularly the multinational media corporation dedicated to organizing the world’s information whether the world likes it or not? And we’re not even broaching the topic of classical music, where the metadata and credits on digital services are dreadful.
In fairness, I have to point out that iTunes has made great strides in cleaning up this problem voluntarily, at least for songwriters. Which goes to show it can be done if the service wants it done.
Digital services should care about whether the songwriters are fairly treated as ultimately songwriters create the one product the services have built their business on-songs. There is an increasing level of distrust between songwriters and services, so proper attribution can help to restore trust.
As it stands, a generation or two now have little knowledge of who wrote the songs, who played on the records, much less who produced or engineered the records they supposedly “love” and who definitely contribute to the $8 billion valuation of services like Spotify.
It seems that at least the failure to accord songwriters their moral right of attribution could be fixed in the regulations without need of amending the Copyright Act by requiring the collection and display of songwriter credits at least if those credits are part of a copyright registration. This might have the additional benefit of encouraging songwriters to register their works.
Google will no doubt vigorously lead the charge to oppose this change because that is their customary knee jerk reaction that often colors all digital services with a uniquely Googlely brush. Even so, I think this is a worthy path for both songwriters and services to pursue and could solve a number of accounting and recordation problems utilizing information that is readily available-to everyone’s advantage in furthering vital transparency. And as we know, transparency begins upstream.
Why? Because as the Universal Declaration of Human Rights teaches us, “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

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