Far too late and amid far too much partisan dysfunction, Congress has revived efforts at modernizing copyright law. But if recent hearings are an indication, we’ve launched a fight over slices of a depressingly diminished pie rather than a debate about first principles and solutions that could grow the creative industries again. This critical reform effort deserves better.
So what would wise and lasting copyright reform look like? Without getting into the weeds of PRO consent decrees and royalty courts, here are six ideas anyone can understand that would ensure a fair framework for creators and consumers. They propose a system that would license intellectual property in thousands of small ways that are missed entirely today. My focus is music, because that’s what I know best, but the principles could apply to photos, video clips and other works.
1. Compulsory licensing should be preferred to voluntary in as many cases as possible.
There are two ways to license a song in today’s system. Voluntary are those negotiated case-by-case between users and owners – such as placing a pop song in an ad campaign for an agreed-to sum. Compulsory licenses are those where the owner of a song or recording never gets involved – they just get paid. Users know whom to pay and how much, which is set by law or negotiation. The quintessential example is cover songs.
I can record “Cold, Cold Heart” and put it on an album without asking permission of Acuff-Rose publishing or the Hank Williams estate. If I file and pay per record sold (about nine cents under current law), I’m good. I’m not saying that nine cents is still the right amount; that should be on the table. But without the freedom to cover songs without transactional friction (i.e. lawyers), the explosive golden age of American popular music would have been dramatically diminished.
Imagine if Ray Charles had had to ask the permission of white, Southern music publishers to record all the songs on his epochal and revolutionary “Modern Sounds In Country & Western Music” in 1962. Cover songs have been a cash cow for song publishers and a creative boon for musicians of every level. They’ve even sparked social movements and fostered musical trends. As arbitrary as its origins are, this feature of our copyright system has been the ultimate win-win, and our new system should promulgate the model across all kinds of creative uses.
2. Compulsory licenses should be on-line and easy for everyone.
Congress should distinguish between “big-time licensing” (feature films, TV commercials, corporate radio, streaming services and mass market productions) and small-time (everything else). With the exception of digital streaming, big-time, voluntary licensing isn’t fundamentally broken. These case-by-case uses require lawyers and negotiators, and the big-time players have those to spare.
What needs fixing is the millions of small-time uses that crisscross the world of digital media creation. Maybe it’s a limited release music documentary or a kid performing a cover song in her living room for YouTube, or a class slide show with a pop song medley as its soundtrack. These works produced by individuals, institutions, sole proprietor producers and small businesses for limited audiences of a few hundred or a few thousand invoke a sea of uses that should be generating billions via micro-payments against a sliding scale of scope, purpose and reach.
Yet today, the small-time user has no way to a) find the owners works or b) pay them something affordable and fair. This revenue is lost and the culture of “it must be free” grows ever more entrenched. Only an online market of compulsory licensing can work for this class of use.
3. Copyright holders must be easy to find and pay through a national registry of works.
Numbers 1 and 2 on this list can’t work if artists, documentarians, re-mixers etc., can’t identify and locate the owners of works they wish to use. So, as Jim Griffin argued in the first of two recent House Judiciary Committee hearings, the federal government should establish or charter a registry where every unique work – song, recording, photograph, film, painting, etc., – has an ID number and clear provenance. Once the law says that all users must pay (but only to registered works) copyright owners will jump to file their claims. A pool for orphan works can be developed. Users could pay into the pool and owners could have up to a year to claim their money. After that, the leftover funds could finance the copyright system or add to pro-rated payouts for digital streaming.
4. Recorded works should be treated under the law as 50/50 creations of songwriters and artists.
There are two different and distinct rights behind every song you hear played on radio or on TV: the performance (the recording of that artist doing that version and whoever financed it) and the composition (who wrote the song and the publishing companies that represent them). In the bizarre world of today’s copyright system, terrestrial radio only pays for the compositions, yet in streaming (Spotify/Pandora), the performance side is wildly better paid than the songwriters. It’s madness.
Which is more important to a hit record, the songwriting or the performance? It’s an unanswerable philosophical question. So let’s just settle the question in a way that has precedent and common sense behind it. All music uses should be split 50/50. That means radio would at last start paying artists and streaming would have to acknowledge the value of composers. It would also mean that artists who write and record their own songs will be compensated twice as well for success as cover singers. And self-financing artists will be better compensated than those sponsored by labels. But this is all to the good, creating incentive for independent status and composer/artists. Our arts economy is stacked against them in many other ways.
5. Fair Use should be codified and clarified for educational and journalistic uses.
The principle of Fair Use is vital in a culture of re-mixing, micro-projects and online education. Hell, it’s vital to a democracy. But it has never been woven into our copyright law to facilitate the creation of novel, derivative works for public service or educational use.
Today, a creator can only invoke Fair Use as a defense once they’ve been sued by the copyright owner… and it’s again with the lawyers. Because networks or broadcasters can’t afford to take the chance on winning that argument o(r afford the attorneys should it go that way), no iota of a song, a lyric or image can go through to presentation without full, documented clearance via the voluntary system. I once had to clear a single verse of a song lyric, quoted in context in of a work of history for an academic press.
This litigious paranoia burdens exactly the wrong people in our creative economy. The scope of Fair Use today may be too broad for a new system that has a workable micro-use market. But as argued above, the transactional costs of negotiating educational and journalistic use case by case would be debilitating. The uses will not happen and the payments will not be made.
6. The concept of ‘synch’ licensing should be overhauled or scrapped.
In an arbitrary artifact of history, any time audio is “synched” with moving pictures, the user must seek a voluntary license from the owner, no matter how small-time the use. So, strangely, licensing an iconic song for a radio documentary is affordable, while licensing the same song for a video documentary is outrageous. This distinction was made in a time when motion pictures were novel and scarce. Today video is the lingua franca of communication.
With this insane overhang from the early 20th century, small-time filmmakers, aspiring documentarians and other creators of any collage-like work have to a) find the owners of the works (if they can) and b) engage in negotiation with employees of said publishers, if they are willing (which they aren’t). Popular music is out of reach for these creators, or it will just get used without license and compensation, in which case everyone loses. That’s why we need the online rights store proposed in No. 2.
These basic principles don’t answer numerous questions of course. Congress and lobbyists will fight over the thresholds for what constitutes big-time versus small-time, voluntary versus compulsory. But in the digital domain, with unique IDs for every work, we’ll have nearly perfect accounting. Projects with music licensed at one tier can be automatically bumped to higher tiers as they go viral. Only such a system will reflect uses as they actually play out in the complex digital world. And these concepts put a lot more emphasis on the intent of copyright – to promote the useful arts and bolster the public interest in the creative life – than the principle of profit driving the various stakeholders in the room today.
