Copyright Office Seeks Comments on Music Licensing

March 17, 2014. The Copyright Office (CO) published a notice in the Federal Register (FR) that "announces the initiation of a study to evaluate the effectiveness of existing methods of licensing music". This notice contains a summary of current music licensing practices and laws, and 24 questions for public comment.

The CO seeks public comments to assist it in preparing a report for the Congress. The House Judiciary Committee (HJC) has several related hearings in the 113th Congress.

The deadline to submit comments is May 16, 2014. See, FR, Vol. 79, No. 51, March 17, 2014, at Pages 14739-14743. This notice adds that the CO will hold hearings after the close of the comment period.

The CO states that in drafting the Copyright Act of 1976 and the Digital Millennium Copyright Act (DMCA) in 1998, the "Congress could not have foreseen all of today's technologies and the myriad ways consumers and others engage with creative works in the digital environment. Perhaps nowhere has the landscape been as significantly altered as in the realm of music."

The CO asks questions about the Section 115 statutory license for the reproduction and distribution of musical works.

For example, the CO asks, "Would the music marketplace benefit if the Section 115 license were updated to permit licensing of musical works on a blanket basis by one or more collective licensing entities, rather than on a song-by-song basis?"

The CO also asks questions about the "royalty ratesetting process and standards applicable under the consent decrees governing ASCAP and BMI".

The CO also asks questions about the Section 112 and Section 114 statutory licensing process, platform parity, and music licensing practices.

The CO also asks about income and revenue, and impacts upon investment. It asks "How have developments in the music marketplace affected the income of songwriters, composers, and recording artists?", and whether "Are revenues attributable to the performance and sale of music fairly divided between creators and distributors of musical works and sound recordings?".

It also asks how "In what ways are investment decisions by creators, music publishers, and record labels, including the investment in the development of new projects and talent, impacted by music licensing issues?", and "How do licensing concerns impact the ability to invest in new distribution models?".

The CO also seeks information regarding "revenues attributable to the consumption of music in different formats and through different distribution channels, and the income earned by copyright owners".

And finally, it asks whether the federal government could "encourage the adoption of universal standards for the identification of musical works and sound recordings to facilitate the music licensing process".

While the CO asks numerous questions, it does not ask any questions regarding myriad non-licensing music issues, such as fair use, the DMCA anti-circumvention regime, the Section 512 limitation on liability relating to material online, the Section 108 limitation on liability for libraries, the Section 121 limitation on liability in connection with disability.

Finally, the CO does not seek public comment on whether the Section 106 public performance right should or should not extend, not only to satellite and internet, but also to terrestrial broadcast radio. Rather, the CO informs the public that it thinks that the public performance right in sound recordings should be extended to broadcast radio.

However, the CO does ask "How do differences in the applicability of the sound recording public performance right impact music licensing?"

(Published in TLJ Daily E-Mail Alert No. 2,634, March 19, 2014.)