MUSIC • TECHNOLOGY • POLICY

Last year, I was honored to participate in a symposium 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 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.

Marty Bandier raised this very issue at the NMPA Annual Meeting yesterday in New York according to Billboard:

“When I look today at the likes of Spotify, Apple Music and YouTube, I ask: where are the names of the songwriters,” said Bandier, who was presented with the organization’s Lifetime Service Award by Motown legend Smokey Robinson. “They are either not there or so hidden that you would have to be a special prosecutor, or perhaps The Washington Post – to find them. It is as if the songwriters do not exist and the only people who matter are the recording artists. However, without the songwriters coming up with the words and music in the first place, there would be nothing for the artist to record and no music to stream.”

Yet these services frequently rely on government mandated compulsory licenses (in Copyright Act Section 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.

According credit in connection with the services’ use of the Section 115 compulsory license is particularly timely as the services are filing tens of millions of NOIs under the “address unknown” loophole in the Copyright Office.  (Amazon, for example, has filed over 19 million “address unknown” NOIs alone as of January according to Christopher Sabec of Rightscorp.)

Conversely, however, since the predicate for filing an NOI under the address unknown loophole is that the copyright owner cannot be found in the public records of the Copyright Office, there must be even more millions of songs for which the services can and evidently do find a copyright registration.

So why aren’t the songwriter credits included in the service’s own metadata?  And is there no moral rights obligation in the U.S. to accord credit if the government is going to force a license?

Compulsory for thee but not for me

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.  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.  And these services send NOIs by the bushel.  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 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 is demonstrating, these services only have about a 75% compliance rate as it is, if that much.  The decision to accord credit to songwriters so that poor Alexa can answer the question “Hey Alexa, who wrote that song?” seems like a business decision that Amazon could take faster than the Whole Foods cashiers can file for unemployment after an Amazon takeover.

Hey Google!  Where’s My Credit?

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.

But the main reason to accord credit is because “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.”  (Article 27, Universal Declaration of Human Rights.)