[Dixielandjazz] A Bid to revise Copyright Law in the USA

[Stephen G Barbone]

Don't get your hopes up that this will ever happen. <Grin>

Cheers,
Steve Barbone
www.myspace.com/barbonestreetjazzband

Legislator Calls for Clarifying Copyright Law

NY TIMES - August 28 - By LARRY ROHTER


Arguing that Congress has an obligation “to preserve fairness and  
justice for artists,” the senior Democrat on the House Judiciary  
Committee has called for a revision of United States copyright law to  
remove ambiguities in the current statute about who is eligible to  
reclaim ownership rights to songs and sound recordings.

“For too long the work of musicians has been used to create enormous  
profits for record labels, radio stations and others, without fairly  
distributing these profits to the artists,” said Representative John  
Conyers Jr. of Michigan, who was chairman of the committee until  
January. Because “copyrights are a tool to be used by creators to earn  
a living from their work,” he added, it is important to ensure “a fair  
marketplace.”

When copyright law was revised in 1976, recording artists and  
songwriters were granted “termination rights,” which enable them to  
regain control of their work after 35 years. But with musicians and  
songwriters now moving to assert that control, the provision threatens  
to leave the four major record companies, which have made billions of  
dollars from such recordings and songs, out in the cold.

As a result the major record labels — Universal, Sony, EMI and Warner  
— are now fighting the efforts of recording artists and songwriters to  
invoke those rights. The Recording Industry Association of America,  
which represents the interests of the labels, maintains that most  
sound recordings are not eligible for termination rights because they  
are “works for hire,” collective works or compilations created not by  
independent performers but by musicians who are, in essence, employees  
of the labels.

With years of costly litigation looming, groups that represent the  
interests of recording artists and songwriters said they found Mr.  
Conyers’s remarks encouraging. But given the issue’s legislative  
history any amendment process in Congress is likely to be long and  
complicated.

The American Federation of Television and Radio Artists, whose more  
than 70,000 members include many recording artists and composers, said  
it was “deeply appreciative” of Mr. Conyers’s “continued focus in  
working to ensure that our copyright system recognizes the rights of  
artists for their creative contributions and which fairly compensates  
artists for the exploitation of their music.” In a statement the  
group’s national executive director, Kim Roberts Hedgpeth, said it  
looked “forward to learning more about any recommendations to enhance  
the rights of artists as they prepared to reclaim their rights in  
their musical works, and we are working to ensure that there is an  
effective system by which musical artists fully benefit from their  
rights under law.”

But the Republicans are the majority party in the House, and some  
lawyers and artist managers see them as more friendly to the record  
labels and other big media companies. For that reason the lawyers and  
managers have expressed doubts that a bipartisan agreement can be  
reached on the main issues relating to music copyrights, like defining  
who qualifies as the author of a work and under what circumstances, if  
any, a song or sound recording should be considered a work for hire.

“Since I’m going to have to be working with them, I don’t want to tell  
you they are conservative and corporate oriented,” Mr. Conyers said  
when asked about the Republican position. “That won’t help. I’ll be  
going to Lamar Smith after Labor Day to talk to him about this, about  
getting a little fairness into the entertainment industry,” he said,  
referring to his Republican successor as the committee’s chairman.

Mr. Smith, of Texas, declined a request for an interview. Instead, his  
staff issued a general statement in his name, saying that legislation  
that “stimulates U.S. job growth and furthers the interests of  
creators, innovators and consumers is a top priority of the Judiciary  
Committee,” and that Mr. Smith was personally committed to legislation  
that “protects America’s innovators.”

Those creators and innovators could presumably include both recording  
artists and songwriters. But Mr. Smith’s staff did not respond to a  
request to clarify his views or to arrange an interview with  
Republican staff members on the committee who might be able to explain  
the party’s position on termination rights and related copyright  
matters.

When Congress passed the copyright bill in 1976, it created an  
important exception to the general principle that the person who  
creates a work of art is its author. At the behest of book publishers  
and other companies that feared their interests would be adversely  
affected, the law declared that when a work has been “made for hire,”  
the employer, not an employee, should be considered its author.

The law generally defined a work made for hire as anything “prepared  
by an employee within the scope of his or her employment,” like a  
newspaper article. It also stated that “a work specially ordered or  
commissioned as a contribution to a collective work,” like a motion  
picture, a translation or an atlas, should be considered a work for  
hire. Sound recordings, however, were left off of that list.

But in 1999 language that would have explicitly included sound  
recordings as works for hire was inserted into an omnibus bill and was  
approved virtually without debate. A few months later the  
congressional aide reported to be responsible for that action,  
Mitchell Glazier, then the copyright counsel to the Republican  
chairman of the Judiciary Committee, moved to the recording industry  
association to become its chief lobbyist, and he continues to work for  
the group.

“That amendment was essentially passed in the middle of the night,”  
said William F. Patry, a former law professor and congressional  
staffer who is the author of several books on copyright. Congressional  
procedure allows for such changes, but only if they are merely  
technical matters, he said, “and clearly this wasn’t technical.”

In response recording artists, led by Don Henley of the Eagles and the  
singer Sheryl Crow, mobilized to overturn the amendment, which would  
have given the record labels control over their master recordings in  
perpetuity. A year later the artists were able to persuade Congress to  
undo the work-for-hire language for songs and recordings, and that  
seemed to have settled the issue.

“We were concerned with a lot of issues in recording contracts that we  
considered to be unfair, and this was one of the most glaring,” Mr.  
Henley said in a recent interview. “Work for hire was never intended  
to apply to sound recordings. That came about because of movies and  
books,” he continued, and “sound recordings somehow got added to the  
list and then taken off again.”

But the recording industry group, which declined to make Mr. Glazier  
available for an interview, does not see it that way. “By its own  
terms the statutory language makes clear that the law on termination  
was simply being restored to its previous state, and that Congress’s  
action was to have no effect on its interpretation,” the group said in  
a written statement.

Neither the record companies nor the artists seems to be relishing a  
confrontation in court. For the labels, already reeling from the sharp  
decline in sales of CDs over the past decade, any definitive judicial  
ruling that is adverse could be especially costly.

“It’s not in anybody’s interests to have years and years of  
litigation,” said Lisa A. Alter, a lawyer with the New York City firm  
of Alter & Rosen who represents numerous artists or artists’ estates  
on copyright matters. “The intent of Congress was clearly to protect  
authors who make bad deals in their eagerness to get their work out  
there.”