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Washington Insiders Are Cautiously Optimistic About Trump Administration’s Copyright Policies

NASHVILLE — Not much is known about President Donald Trump’s views of the Byzantine world of copyright law, music royalties and the rights of songwriters and creatives. But members of a panel of Washington insiders appearing at the Music Biz 2017 conference in Nashville on Monday – including influential U.S. Rep. Marsha Blackburn, a Republican from Tennessee — see positive signs in the few tea leaves they’ve been able to read so far.

“One of my previous bosses used to say personnel is policy,” said Todd Dupler, the Recording Academy’s Senior Director of Advocacy & Public Policy. “Whenever you’re talking about a new White House or Administration, they can talk about policy, but the people they put in place are actually going to execute it and create the policies.”

The panel, which included Jacqueline Charlesworth, former general counsel for the U.S. Copyright Office, and representatives from SESAC and SoundExchange, agreed the nominations of Makan Delrahim to head the Department of Justice’s Antitrust Division and Vishal J. Amin to Intellectual Property Enforcement Coordinator are reasons for cautious optimism, as efforts to reform copyright law essentially restart with the change of administrations from Barack Obama to Trump. Both have long history with the issues that affect songwriters and artists: Delrahim, as Dupler pointed out, was a staffer for Sen. Orrin Hatch on the Senate Judiciary Committee: “If you know anything about Orrin Hatch, you know he’s a songwriter.”

“We’re pleased we’re going to have someone who is copyright aware and respectful in the position,” Blackburn said. “What you’re going to see from the people who are going to staff these positions is a great respect for the rule of law and an understanding that your right to hold, protect and monetize a copyright is a constitutionally protected right.”

Panelists, entertainment lawyers and interested music industry professionals spent three hours listening and learning about government policy as it relates to their lives on the first day of Music Biz, the annual entertainment and technology insiders gathering in downtown Nashville. Topics covered include reform to the Digital Millennium Copyright Act, the consent decrees that govern performing rights organizations BMI and ASCAP, the idea of a performer right in royalties and several other topics that mean real money — billions of dollars lost in aggregate — to creative professionals.

Blackburn recently co-wrote a letter to the Department of Justice asking it to declare by May 18 whether it would file necessary paperwork in an appeal of a recent federal court ruling that allows fractional licensing, meaning some songwriters will be left out of the profit pool if they don’t belong to the first performing rights organization (i.e. ASCAP, BMI, SESAC or Global Rights) that licenses a song. This may lead to songwriters choosing their creative partners based on PRO membership rather than free will.

“It would have a chilling effect because you’d be choosing who you collaborate with based on whether they’re in the same PRO as you, whether you can feel like your contract with that writer will be honored or the Department of Justice is going to step on it and override it,” Dupler said. “We’re concerned it would have a very pronounced, chilling effect on songwriters, who aren’t normally supposed to be thinking about these types of things.”

Blackburn also said she’s reintroducing the Fair Play Fair Pay Act, which among other things would establish a performing right that would pay singers and musicians a royalty in certain situations, something that’s lacking in only the U.S. and 11 other nations. Panelists said upwards of $200 million is lost every year when other nations gather royalties for U.S. performers, only to have the money disappear because the U.S. doesn’t require reciprocation.

“Iran, Syria, Sudan,” Dupler said. “So it’s not good company to keep in this regard.”

Royalties were also the topic in an earlier panel that looked at the DMCA and how YouTube and other providers benefit from the act’s age. Adopted in 1998, members of the music industry claim the DMCA gives YouTube and other similar social media platforms loopholes that are costing musicians millions of dollars in lost royalties.

Don Nottingham, a former member of the YouTube-launched a cappella group Straight No Chaser, noted that many of the people who most consume streamed music weren’t even born when the DMCA was ratified.

“It’s hard to imagine that the authors of DMCA could have anticipated us walking around with nearly every song ever recorded in our pockets,” he said.

 

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