You may have heard about H.R. 4079, introduced on Feb. 25, 2014, which proposes to amend the current U.S. Copyright Law. “The Songwriter Equity Act of 2014” by its very title insinuates it helps songwriters. Public support from entities such as ASCAP, BMI, SESAC, NARAS, NSAI and NMPA, strengthens that position. But how exactly does the new bill propose to help, and what, in all likelihood, will happen next?
First, let’s look at how this came about. Congressman Doug Collins, a freshman republican from Georgia, introduced the bill. I met Mr. Collins and talked with his staff in his D.C. office the day after it was introduced. According to Collins, “My constituents expect me to find the ways government is in the way of people producing what they can and take down those barriers. The SEA was an interesting, somewhat unexpected way to do that. Here’s a case in which government weighed in back when player pianos were a main way music was distributed and they haven’t changed with the times. Songwriters have paid the price for that.”
So what barriers do Collins and company hope to take down in order to “ensure fairness in the establishment of certain rates and fees?” They hope to change some antiquated restrictions that exist in sections 114(i) and 115 of the Copyright Act.
The Five Sections Of The Bill
Let’s go a little deeper into the weeds of the specifics. The bill has five main sections, although the first simply states that it will be known as the “Songwriter Equity Act of 2014.” The second section deletes a sentence currently under Section 114(i), which originally limited any “administrative, judicial, or other governmental proceeding” from considering license fees payable for performances of sound recordings when determining royalties for the performances of songs on behalf of “copyright owners of musical works.” In other words, the proposed bill would allow rate courts to consider what Pandora now pays to record companies and artists (reportedly 54%) when determining the rates for song owners (about 4%). As the law now stands, that 54% number cannot be considered in proceedings, which is one reason we have a 14 to 1 imbalance.
The third section suggests that the above changes won’t be taken into account or have any effect on certain decisions or precedents already established with rates and fees for sound recordings under section 112(e) or section 114(f). The fourth section deletes the term “115” from section 801(b)(1), which removes compulsory licenses from a list of limiting objectives the Copyright Royalty Judges are to use when setting rates.
The fifth and final section inserts, in section 115, that the Copyright Royalty Judges, when establishing rates and terms, will consider a “willing buyer and willing seller” approach, while also considering “the rates and terms for comparable uses and comparable circumstances under voluntary license agreements.” Bottom line – a more fair approach.
According to Collin’s office, the bill went through various edits as late as midnight the night before it was introduced. Single words were debated among the team to assure that the bill would be supported, or at least not opposed, by various organizations including RIAA and SoundExchange. Collins is clear that he would personally like for the bill to be stronger for songwriters and publishers. However, in order to effectively play the game we know as politics, compromise was needed from all sides. It was important to assure that the labels didn’t immediately oppose this. So the bill we now see is maybe a more vanilla, but more widely accepted, approach to a solution.
Getting SEA Passed
Now, while this bill is very positive for the songwriter and publishing community, how does it fit in to the grand scheme of the current copyright law review, and do we really think congress will pass it? No one really knows. But from what I am hearing on the hill, it is almost universally agreed that this is the right direction. If nothing else, this act establishes a public “course of action” for how this particular tricky issue could be debated and dealt with. In fact, Tennessee Senators Corker and Alexander have indicated they are considering introducing a Senate version of the bill in the coming weeks.
The general consensus is that the current copyright law will be reviewed through various formal hearings, roundtables, and public comments over the next two years. Whether that process will generate a large revision of the copyright law, or numerous “updates,” is yet to be seen. However, I think everyone involved agrees, many things in the copyright law need to be updated and changed.
SEA 2014 does not, by itself, solve the copyright, licensing, and royalty puzzle. However, it is a step in the right direction. But it is only that – a step. We need many more new ideas to go along with this. As an ancient Chinese philosopher says, “A thousand mile journey begins with a single step.” This is a very solid first step. Let’s keep the momentum and push for more.
John Barker is President & CEO of ClearBox Rights, LLC, an independent rights managements company based in Nashville, TN. He is also Chairman of the Copyright Society of the South. John publishes a blog related to songwriting, publishing and copyright issues which can be found at http://clearboxrights.wordpress.com or www.clearboxrights.com.