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Online, who owns what?

Copyright issues addressed at confab

WASHINGTON — The World Copyright Summit on Tuesday was a unifying effort as the entertainment industry grapples with an uncertain future, but it also highlighted just how polarizing the whole notion of copyright has become in the digital age.

A series of panels saw back-and-forth sniping and other disagreement — and, indeed, one expert lamented the very nature of copyright itself.

Author and Columbia Law School professor Michael Heller gave a speech ominously noting that “when too many people own pieces of one thing, no one can use it. Too much ownership causes gridlock.”

The creative media are stuck in “copyright gridlock,” Heller said, citing as an example the made-for-TV docu “Eyes on the Prize,” about the U.S. Civil Rights Movement. After initially airing in the 1980s, “Eyes” ended up locked away for 20 years as clearances for many images, photos and songs used in the footage couldn’t be secured since rights holders were unknown or wouldn’t agree to terms with the filmmaker.

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The larger implication, Heller said, is that, while property rights in general can help spur innovation and investment, too many rights to the same or related property means less innovation, investment and profit. The creative industry should be concerned about this problem because, as he said, “Increasingly, the cutting edge of creativity today is the mash-up, the assembling of multiple parcels.”

The intent of the two-day confab was to focus on rights in the digital domain, a subject that drew not just industry officials but politicos, attorneys and lobbyists.

During a panel discussion on the challenges of music licensing, the head of the Harry Fox Agency — which represents numerous music publishers — made an unprecedented offer to help YouTube identify rights holders to music that appears in videos posted on the popular website.

The surprising moment came when Zahavah Levine, YouTube’s chief attorney as well as associate general counsel for Google, the website’s owner, said, “For some reason I don’t know, the music publishers have been unwilling to help us identify (publishing) rights holders.”

“We’ll start doing it tomorrow,” Gary Churgin, prexy-chief exec for Harry Fox, instantly replied.

YouTube and the music industry have clashed over unauthorized videos containing copyrighted songs. In particular, Harry Fox has sued YouTube/Google in the wake of failed negotiations to arrive at an agreed-upon royalty rate.

Exactly why Harry Fox and other entities, like ASCAP, have not helped identify publishing rights holders before isn’t clear, but Churgin’s pledge signaled a potentially significant change in the relationship at least between Harry Fox and YouTube.

Meanwhile, sparks flew during a heated debate over whether radio broadcasters should pay a performance royalty, with the recording industry’s top lobbyist accusing the other side of proffering “garbage” that should be “flushed down the toilet.”

While the scourge of digital piracy arose as a topic during several panels and focus groups, the more specific issue of a performance royalty triggered the most passionate exchanges, starting with the morning’s first panel, which addressed possible regulatory actions Congress may take.

The House Judiciary Committee has already passed a performance rights bill, and Sen. Orrin Hatch (R-Utah), one of the day’s speakers, said that the Senate Judiciary Committee is likely to pass its version this summer. (Hatch is a senior member of the committee.)

But Benjamin Ivins, a senior general counsel for the National Assn. of Broadcasters, which opposes the legislation, said that a resolution against the bill had already gathered 221 signatures in the House.

Mitch Bainwol, the Recording Industry Assn. of America’s topper, said the resolution was nonbinding, had no force of law and was thus “a diversion. It’s garbage — flush it down the toilet.”

NAB has argued that radio stations already help record labels and artists by giving them free airplay and that some smaller broadcasters would be forced out of business if required to pay a performance royalty.

Bainwol accused broadcasters of playing a double game. “They advertise on their stations against the bill, but they refuse to let us advertise for the bill,” he said. “It’s an outrage, an abuse of power.”

“Why do you sue college students?” riposted Ivins, referring to the RIAA’s legal strategy against alleged illegal downloaders, who are often forced to settle since they can’t afford litigation.

“That’s a cheap shot,” said Bainwol.

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