Takeaways From "Developing The Digital Marketplace for Copyrighted Works"

"You bargain, or you beg!"

On January 25th, 2018 from 9:00 am until 5:00 pm (approximately), the USA's Department of Commerce's Internet Policy Task Force hosted an international meeting to discuss the tension between licensors and licensees in the digital marketplace for copyrighted works, the importance of registries, and the hands off role of Government.

Usually, when discussing one's point of view in front of the government, one is perky, excruciatingly reasonable, and highly positive about the government. Circumlocution can be expected. It's not a forum where "the truth will out"... unless the listener can read between the lines.

You can watch some of the archived footage for the day for yourself at:
 https://livestream.com/uspto/events/8027860
For writers who have great sympathy for song writers and musicians, one of the most enlivening comments of the day was from an audience member who said "granularity is the enemy", and stated that "per play" licensing takes value from the album. Before streaming, music lovers would buy an entire album because they wanted one song on the album. Now, streaming services only pay for the hits that they use. (And they don't pay well.)

(Granularity also affects non-fiction writers. Instead of every student in a course buying an entire text book in order to access certain chapters, those most excellent chapters can now be isolated, licensed, and distributed
while the drossy remainder fusts unused, and unread.)

A realist in the "bargain or beg" camp explained that if a rights holder did not accept the new reality, there are myriad musicians trying to move up the "long tail" of the "snake" that is the music business who are willing to pay to be played. (The same goes for publishing.)

In a let-them-eat-cake like moment, someone touted the money to be made by musical rights holders whose tunes were used as television news themes.

It seems to me, I have almost never heard an unknown tune being played on cable news channels. Have you? It's almost always a rock star band getting this lucrative gravy. I have the impression that Fox News, for instance, frequently plays a clip from Led Zeppelin's "Immigrant Song" when the topic is DACA.

The opening lyrics of that excellent tune are more appropriate for Vikings.

Snatches of tunes used in advertisements probably pay more than on streaming services, but again, the advertisers use big hits by head-of-the-snake bands.  Although politicians' "walk-onto-the-stage" themes were not discussed explicitly, there was a mention (in a discussion of Hollywood, TV and film) about creative people being out of luck if they do not want to do a deal.

Sometimes, a creative work will be licensed and used, despite the objections of the creative person who does not want their work used for a certain purpose or venue or campaign.

Sometimes, a creative work by an obscure individual is used without payment, and apparently the Government's view is, the big seven (or however many) publishers are paid on a percentage basis, and it is up to them to distribute the royalties.... or not, if the obscure individual is not part of their system.

The Copyright Office's position is (allegedly), "It's not our mission to disambiguate works from other works." 

If that is the case, one wonders why the Copyright Office is accepting and burying millions of Notices Of Intent To Use copyrighted works, supposedly on behalf of rights owners who will never be paid unless they have the time, resources and skill to search through the compressed files at the Copyright Office info dumps.

Apparently, every obscure rights owner who wants to be paid for their work is expected to take responsibility for joining the appropriate registries (even paying to be entered in those registries), so they can be located, and paid whatever the streaming service or the Government decides they should be paid.

So much for willing seller/willing buyer.

With regard to Google, "if you (the creator and rights owner) don't do something, someone else will do it for you, and you may not like their solution."

To be continued....

Rowena Cherry

PS.  With regard to the snake imagery from the music world, apparently the top 2% of musicians (the head of the snake) receive 98% of the royalties.  80% of sound recordings get zero plays.  However, according to Ms. Chris Kleeman (formerly with Wiley academic publishing) the long tail is alive and well in books.