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The Importance of Credits

September 4, 2017 Comments off

Another outstanding podcast from Portia Sabin’s Future of What podcast, this time with the music credits services Jaxsta and Discogs on the importance of credits.  Credits are also known as the moral right of attribution, currently under review at the U.S. Copyright Office.  Yet another artist rights area where the U.S. lags behind the rest of the world.  (See also Robert Levine’s recent post on Billboard about Auddly, a different and also important approach to the credit issue and my previous post on how Facebook sell artist names as keywords without rights.)

 

@riaa Responds to Songwriter Groups on Moral Rights and Credit Solutions

August 27, 2017 1 comment

[We’re big Jaxsta fans at MTP and have a lot of time for that company.]

August 23, 2017

Thank you for your letter explaining your concerns with the filing we made with the U.S. Copyright Office in connection with its study of Moral Rights. 

To be frank, we are puzzled by your letter, as it appears to assume that we took a position we neither espoused, nor believe. But we’re glad for the opportunity to set the record straight and eliminate any misunderstandings.

First, let us be clear that we wholeheartedly believe that all creators of music deserve attribution for their work. As we said in our filing, we have every incentive to ensure attribution, because it’s not only the right thing to do, but it’s good business as well.

Although our member labels do not own the copyrights to musical works, and our focus is necessarily on the artists our companies represent, we fully support attribution for songwriters, and all the others who contribute to a musical recording. Indeed, we have supported initiatives over the years to improve attribution and will continue to do so.

The good news is that the opportunities for better attribution have never been more promising. Instead of hard-to-read fine print on discs and liner notes, music fans will be able to ask voice-activated appliances like Amazon’s Echo for the names of the songwriters of a recording. Public websites like Jaxsta will soon launch, providing a rich and in-depth array of information about creators. Such information may not fit on the small digital screen of a streaming service’s user interface, but it can be publicly and widely available in very convenient and accessible ways.

It is this form of attribution that was the focus of our filing with the Copyright Office – publicly visible identification, and not – as your letter suggests –metadata that may be included with a file but that is not publicly displayed to those listening to a music file or watching a music video. Even if all possible information were included in the metadata, that wouldn’t solve the attribution problem unless that information was also rendered on-screen in a form visible to the human eye. In other words, while metadata might be a means to an end, it is not an end in itself if the end is public-facing attribution.

Since it appears that you were focused more on metadata than public attribution, let us be clear: we do not oppose, indeed we support, including in metadata information about all creators of a musical recording, and we encourage the use of available mechanisms to give credit to creators. We simply believe that these measures should not be legislated, but rather should be voluntary, or based on freely negotiated contractual obligations, as they always have been in the United States.

We would welcome the opportunity to work with your organizations on voluntary mechanisms to achieve our shared objective – to maximize attribution for all creators.

Sincerely,

Cary Sherman and Mitch Glazier

YouTube, Facebook and Moral Rights

August 20, 2017 1 comment

I was honored last year to have been asked to participate in a symposium on moral rights co-sponsored by the U.S. Copyright Office and the Center for the Protection of Intellectual Property at the George Mason University School of Law.  The symposium relates to the Copyright Office Study on the Moral Rights of Attribution and Integrity.

Moral rights is a key area of the law of copyright that is sadly lacking in the United States and an important legal tool to protect the rights of artists.

Moral rights (or for the fancy people, droit moral) are largely statutory rights that maintain and protect the connection between an author and their work.  (As I highlighted in Artist Rights are Human Rights, moral rights are not economic rights like copyright, but transcend those rights.  This is why you see language in the human rights documents, like the Universal Declaration of Human Rights, that essentially track the moral rights language.)

The two principal moral rights are the right of integrity and the right of attribution (which conversely includes protection from misattribution).  These are recognized in the Berne Convention (Article 6bis for those reading along).  Others that are not mentioned in Berne include the right of first publication (which the U.S. has a version of in the “first use” doctrine for songs under compulsory license) and withdrawal–which is a bit reminiscent of the more recent right to be forgotten.

When it comes to attribution, or what we might think of as credit, there is a form of imperfect social contract between record companies, film studios and television produces with the creative community.  This is largely thanks to years of collective bargaining with guilds such as the Writers Guild, SAG-AFTRA and the Directors Guild as anyone who has been to a Writers Guild credit arbitration can attest.  It is unlikely that any of these would trade on a creators name.

The place where we have problems, of course, is with the New Boss companies like YouTube, Google and Facebook.  These companies don’t just trade on your name, they SELL your name as an advertising keyword thus associating the artist’s name with products, works or services without the artist’s knowledge, albeit somewhat in the background.

Try boosting a post on Facebook and selecting the attributes of the audience you want to reach.  Type in the names of 5 popular artist and I feel certain that you will find them all there.

Facebook Artist Names

We also have confirmation of this business practice from the Luke Sample affidavit in a piracy case against Google where Google executives advised Sample how to maximize traffic through Google Adwords to push Sample’s pirate site:

Luke Sample

If the U.S. expands its moral rights “patchwork”, it is likely that these business practices could come under a microscope as violations of moral rights.

Global Songwriter and Composer Organizations Send Open Letter to RIAA Proposing Solution to Massive Failures to Accord Credit and Respect International Laws of Moral Rights

August 16, 2017 1 comment

[For more information go to BASCA website.]

An Open Letter

15thAugust 2017

Mr. Cary Sherman
Mr. Mitch Glazier
RIAA

Via email

Dear Messrs. Sherman and Glazier,

It was with great disappointment that we read the recent RIAA comments to the Copyright Office in connection with moral rights; in particular, with regard to the right of attribution. The RIAA’s argument prioritizes the inconvenience of dealing with accurate metadata over the principle of the protection of the rights of the people upon whose work the music business is built. In our view, and the view of many in the creator community, this is not only irresponsible, it represents a betrayal of the ‘greater common purpose’ to which so many of us are committed—a purpose with which the RIAA claims to agree.

While music creators have greatly appreciated the RIAA’s leadership on, for example, the Music Community submission on Section 512, it’s crucial to note that such a leadership requires buy-in from the community one purports to lead. In this case, not only do you not have buy-in, the RIAA comments have inspired very active opposition, including that from UK and European music creators whose work is consumed widely across the USA but whose moral rights are not recognized, in part, due to your position. The Berne Convention, revised in 1928 to include moral rights, has 172 countries around the world signed up to it; it is only the US that refuses to assert them.

To make our position clear, we urge you to read the comments filed by Maria Schneider in this matter, which we believe capture the general views of the performer and songwriter community. Maria has outlined how enforceable rights of attribution (in the form of statutorily protected metadata) can be useful, if not indispensable, tools in achieving the kind of accountability from the internet that, in other submissions, the RIAA seeks to establish. [See Maria’s comments here.]

More fundamentally, RIAA’s comments are taken by many in the music creator community as a betrayal of our joint commitment to expand opportunities for creators. Unfortunately, this divergence of views gives our common adversaries an opportunity to divide our community.

We certainly are aware that the RIAA and its members have historically not embraced the idea of moral rights, and have tended to view it as a litigation risk. But the basic metadata rights we’re talking about here are already protected by Section 1202. We are not living in ordinary times, and we’re sure RIAA is well aware of the sensitivities regarding transparency and accountability. Without accurate metadata, contributors to a work risk not getting paid. That’s a moral dilemma intrinsically linked to the issue of moral rights — and on this issue the RIAA has now aligned itself with those who seek to enfeeble IP rights.

Even anti-copyright groups like Creative Commons understand the importance of attribution. If the RIAA is seen as less artist-friendly than Creative Commons, the copyleft and all who seek to undervalue our work will benefit. What’s more, this could make the job of aligning creators with the RIAA around our combined interests infinitely more difficult.

The RIAA comments raise fears about technical issues concerning implementation of the metadata. However, we believe this misses the point. No one is asking to add new requirements here. The current ID3v2 metadata tag is clearly a ‘standard technical measure’, and includes 80 separate ‘fields’ for including all sorts of metadata, including performers, lyricists, studio engineers etc. This capability is baked in to every MP3 and AAC. The RIAA should fully support and encourage all of us in the music community to harness and protect that metadata.

Instead, the RIAA frantically lays out a litany of hurdles they claim will prevent digital platforms from giving credit to the many people that contribute to a creative work. We believe there’s no doubt music platforms will come up with innovative and effective ways to give credit. Certainly there’s no need to set expectations at rock bottom as the RIAA did in their comments.

We have no interest in imposing new requirements that are unreasonable, or that require parties to include information that they themselves do not possess. But we do expect that the metadata capabilities that the industry and Section 1202 have given us will be protected, today and into the future.

Accurate metadata is essential to the healthy digital future of music creators, it is also critical to the healthy digital future of each and every Citizen Creator. The potential to report 100% accurate usage is the greatest promise cyberspace makes to Creators. Yet, in your Moral Rights submission, the RIAA seems to approach attribution and the accuracy that metadata provides as if it were a threat.

With key efforts like the Open Music Initiative, the future value of metadata to musicians and songwriters will be absolutely critical. And if, in the process of protecting those rights, we also happen to implicate certain moral rights, so be it.

The RIAA comments go in the exact opposite direction on this crucial issue, failing to take into account the potential value of legislated accreditation via metadata and providing ethical and political cover for Google and others to treat the internet as some kind of accountability-free zone. That, of course, has much broader implications than just with regard to the issue of moral rights.

We urge you and your members to think carefully about how to move forward from here in ways that truly reflect the interests of those you claim to protect. There are corporate players here, whose unfettered commercial self-interest masquerades as ideology and who capitalize upon our perceived divisions.

While the comment period may have technically closed, there is no restriction on the RIAA revising its views, endorsing the comments filed by Ms. Schneider, and affirming the following: a) the importance of metadata to musicians and creators; b) its strategic value to rights-holders in the future of payment/accountability technologies; c) the relevance and authority of Section 1202 in protecting those rights; and d) the short-term and long-term damage and chaos that is created by encouraging music distributors such as YouTube to disrespect and strip that metadata from our valuable creative works. In fact, we hope the RIAA will join us in encouraging the Copyright Office to use its authority under Section 1202(c)(8) to expressly include all of the metadata contained in a standard ID3v2 tag as falling within the definition of CMI.

We ask that the RIAA work with the creator community to address the specific issues of implementation. More important, we strongly urge the RIAA to present a united front in our common cause to protect the rights of music creators and those who present their work.

Sincerely,

British Academy of Songwriters, Composers and Authors (BASCA)

European Composer & Songwriter Alliance (ECSA)

MusicAnswers

Music Creators North America (MCNA)

Council of Music Creators (CMC)

Screen Composers Guild of Canada (SCGC)

Societe Professionnelle des Autuers et des Composituers du Quebec (SPACQ)

Society of Composers and Lyricists (SCL)

Songwriters Association of Canada (SAC)

Songwriters Guild of America (SGA)

Songwriters of North America (SONA)

Alexa, where’s my credit?

June 15, 2017 Comments off

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.)

 

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