[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
MORAL RIGHTS, TERMINATION RIGHTS,
RESALE ROYALTY, AND COPYRIGHT TERM
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JULY 15, 2014
__________
Serial No. 113-103
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
HOWARD COBLE, North Carolina, Chairman
TOM MARINO, Pennsylvania, Vice-Chairman
F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York
Wisconsin JOHN CONYERS, Jr., Michigan
LAMAR SMITH, Texas JUDY CHU, California
STEVE CHABOT, Ohio TED DEUTCH, Florida
DARRELL E. ISSA, California KAREN BASS, California
TED POE, Texas CEDRIC RICHMOND, Louisiana
JASON CHAFFETZ, Utah SUZAN DelBENE, Washington
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia ZOE LOFGREN, California
RON DeSANTIS, Florida SHEILA JACKSON LEE, Texas
JASON T. SMITH, Missouri STEVE COHEN, Tennessee
[Vacant]
Joe Keeley, Chief Counsel
Heather Sawyer, Minority Counsel
C O N T E N T S
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JULY 15, 2014
Page
OPENING STATEMENTS
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Courts,
Intellectual Property, and the Internet........................ 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary, and Member, Subcommittee on Courts, Intellectual
Property, and the Internet..................................... 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 4
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on
Courts, Intellectual Property, and the Internet................ 4
WITNESSES
Karyn A. Temple Claggett, Associate Register of Copyrights,
Director of Policy and International Affairs, U.S. Copyright
Office
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Rick Carnes, President, Songwriters Guild of America
Oral Testimony................................................. 18
Prepared Statement............................................. 20
Casey Rae, Vice President for Policy and Education, Future of
Music Coalition
Oral Testimony................................................. 35
Prepared Statement............................................. 38
Michael W. Carroll, Professor of Law, and Director, Program on
Information Justice and Intellectual Property, American
University Washington College of Law, and the Public Lead of
Creative Commons USA
Oral Testimony................................................. 44
Prepared Statement............................................. 46
Thomas D. Sydnor II, Visiting Scholar, Center for Internet,
Communications and Technology Policy, American Enterprise
Institute
Oral Testimony................................................. 60
Prepared Statement............................................. 62
APPENDIX
Material Submitted for the Hearing Record
Letter from the Directors Guild of America (DGA) and the Writers
Guild of America, West Inc. (WGAW)............................. 78
Prepared Statement of the Library Copyright Alliance............. 82
Prepared Statement of Public Knowledge........................... 86
Letter from Sotheby's, Inc, and Christie's Inc. and Attachment... 94
Prepared Statement of the Visual Artists Right Coalition......... 111
MORAL RIGHTS, TERMINATION RIGHTS, RESALE ROYALTY, AND COPYRIGHT TERM
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TUESDAY, JULY 15, 2014
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 1:30 p.m., in
room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Present: Representatives Coble, Marino, Goodlatte, Chabot,
Fartenhold, Holding, DeSantis, Smith of Missouri, Nadler,
Conyers, Chu, Deutch, DelBene, Cicilline, and Lofgren.
Staff Present: (Majority) Joe Keeley, Chief Counsel; Olivia
Lee, Clerk; (Minority) Heather Sawyer, Minority Counsel; and
Jason Everett, Counsel.
Mr. Coble. Thank you again, ladies and gentlemen, for your
patience. We're ready to get underway here.
The Subcommittee on Courts, Intellectual Property, and the
Internet will come to order.
Without objection, the Chair is authorized to declare a
recesses of the Subcommittee at any time.
We welcome all of our witnesses today as well as those in
the audience. I'll give my opening statement at this point.
This afternoon, ladies and gentlemen, the Committee
considers several issues that focus on the rights of the
creator, often referred to as the ``little guy.'' I have great
respect for artists and musicians in our Nation, and they
aren't always treated as well by the copyright system as they
should. Not everyone is big enough to retain counsel to fight
infringement or a lobbyist to ensure their rights are protected
as much as the ``big guy.''
Moral rights may not be as large in the U.S. as overseas,
but as the co-chair of the Creative Rights Caucus, I've long
believed that artists should get the credit they are due.
Although vast financial rewards do not always follow the vast
investment of a creator's time, it doesn't seem that much of a
burden to assure that the creator's work is recognized, as his
is in the first place. Recognition may not fully replace
financial reward when the mortgage comes due, but at least it
preserves the ability to earn financial rewards in the future
time when someone hears that song or for the first time sees
that photograph.
As a fan of bluegrass and old time country, and old time
bluegrass, for that matter, I'm sure there are a number of
artists who would like to exercise their termination rights at
some point. U.S. law has long permitted artists to reclaim
their copyright, and it is worth learning how the termination
process is or is not working today.
As everyone knows, the Committee extended the term of
copyright 20 years ago in 1998, and its decision to do so was
upheld by the Supreme Court in 2003. Two of our witnesses today
will speak primarily to this issue.
Finally, the issue of resale royalties, one that my
colleague from New York has taken a keen interest in. It does
seem unfair to visual artists that those who profit from their
efforts are usually not the artist themselves, but are those
who see fine art as a financial investment. I would like to
learn more about the resale royalty this afternoon, but I would
say at this time that I am not uncomfortable with the notion of
a resale royalty.
Again, thank you for being here. And I am now pleased to
recognize the distinguished gentleman from Michigan, the
Ranking Member of the full Judiciary Committee, Mr. Conyers.
Mr. Conyers. Chairman Coble, I thank you very much for
recognizing me.
And to all of our witnesses, we apologize for having so
few, but we ran out of table space and we couldn't take on any
more, but we welcome all of you.
Because today's hearing provides an opportunity to examine
moral rights, termination rights, resale royalties and
copyright terms. Mr. Chairman, we could have had at least four
individual hearings on the subject that we are compressing into
one.
During our many times of reviewing the Copyright Act, I
believe that we should work to ensure that the copyright system
provides adequate incentives and fairly compensates its
creators, and while we could probably hold a single hearing on
each one of these topics, there are several things that should
be observed as we study and review it today.
I would like witnesses to examine whether the current
approach to moral rights in the United States is sufficient.
Moral rights refers to non-economic rights an author may have
to control their copyrighted works. American creators
frequently receive moral rights protections by entering into
private contracts. In 1990, Congress created the only specific
moral rights provision in Title 17, enacting the Visual Artists
Rights Act, which is the first Federal provision directly
addressing the Berne Convention moral rights provisions.
While the VARA is the only Federal provision to deal with
moral rights, it only covers visual art works, paintings,
drawings, prints and sculptures. It also only covers the
original copy of the work. Many courts, however, have struggled
to interpret several provisions of the VARA. One of the major
difficulties for the courts has been interpreting whether a
work rises to the level of recognized stature to qualify for
protection against any destruction. I would like to hear the
witnesses discuss their thoughts about whether the provisions
of VARA are difficult to interpret, and if so, what changes
might be recommended.
Additionally, the Lanham Act, has been considered an
important component of the patchwork approach to moral rights
in the United States; however, the Supreme Court in Dastar
Corp. v. Twentieth Century Fox Film, limited the use of Lanham
as a basis for moral rights protections. The court unanimously
held that there is no Lanham Act obligation to attribute the
original creator or copyright owner as the origin of works that
are in public domain.
I would also like to be enlightened by some of you here
whether they believe the Dastar decision has weakened the
United States' protection of moral rights, and if so, what we
might need to do to address this potential challenge.
Visual artists operate at a disadvantage under the
copyright law relative to other artists. In the context of
visual arts, moral rights concepts have led to the adoption in
many countries of a resale royalty. Resale royalties allow
artists to benefit from increases in the value of their works
over time by granting them a percentage of the proceeds each
time their work is resold. Visual artists are often less likely
than other artists to share in the long-term financial success
of their works. Because the United States doesn't provide a
resale royalty right, United States artists are prevented from
recouping any royalties generated from the resale of their work
in those countries that do have the resale royalty right.
And so I commend the Ranking Member Mr. Nadler, for his
leadership on this issue by his introduction of House
Resolution 4103, the American Royalties Act, A-R-T, which would
allow American visual artists to collect a resale royalty of 5
percent when their artwork is resold at a public auction. This
bill would also allow U.S. artists to collect royalties when
their works of art are sold abroad. These royalties would be
distributed by visual artists collecting societies, which would
be governed, of course, by regulations issued by the Copyright
Office.
So, I want to listen carefully from our experts gathered
here this afternoon, to have to say about increasing the rights
of creators for all of the topics we will discuss today.
Creators place a high value on being able to control their
own works, because these rights are personal, of course, to the
creators themselves. Specifically for termination rights, we
want to hear discussion of the 2010 analysis performed by the
Copyright Office for a legislative change to Section 203 of
Title 17, to clarify the date of execution of a grant can be no
earlier than date of the creation of the work itself. Congress
has yet to act on this suggestion, and we would like to find
out what you think about whether or not it's time to act.
And for the issue of copyright term, I believe that the
current length is appropriate, particularly in light of aspects
of the law, including, for example, the fair use doctrine that
mitigates the impact of any copyright term and I would like to
hear whether some of you believe that any change to shorten
copyright term would put the United States works at a
commercial disadvantage in the European Union marketplace,
which currently has a copyright term that mirrors ours.
And so it is in that spirit that I indeed welcome you here
for this discussion that will take place this afternoon.
I thank the Ranking Member, the Chairman, and I yield back
the balance of my time.
Mr. Coble. I thank the gentleman.
The Chair now recognizes the distinguished gentleman from
Virginia, the Chairman of the full Judiciary Committee, Mr.
Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
This afternoon, the Subcommittee continues our review of
our Nation's copyright laws with a hearing on moral rights,
termination rights, resale royalty, and copyright term.
The U.S. joined the Berne Convention in 1998, a full 101
years after the convention was first drafted. The U.S.
Government stated at the time of exesion that a combination of
several of our then existing laws met the requirements of the
Berne Convention, including the Lanham Act that was said to
protect the right of attribution; however, only a few years
after the signing of this convention, the Supreme Court in 2003
held that the Lanham Act did not, in fact, protect the right of
attribution. Most commentators have described the American
moral rights system as a patchwork of laws. So as the
Subcommittee continues its copyright review, we should consider
whether current law is sufficient to satisfy the moral rights
of our creators or, whether something more explicit is
required.
Turning to the longstanding issues of termination rights
and copyright term, I look forward to hearing about the impact
of existing U.S. law in these areas and whether improvements
can be made. Many of you know that the Register of Copyright
has made several suggestions in these areas.
Finally, the Copyright Office has recently released a
lengthy new report on the resale royalty issue in which it
changed its position on the merits of such a right from an
earlier 1992 report. Legislation has been introduced on this
issue on several occasions to allow visual artists to benefit
from their works similar to other creators. This is an
important issue for many visual artists.
I look forward to hearing more from our witnesses today
about all of these important issues.
And, again, I thank all of you for appearing before this
Subcommittee this afternoon.
And I yield back to the Chairman.
Mr. Coble. I thank the gentleman.
The Chair recognizes the distinguished gentleman from New
York, the Ranking Member of this Subcommittee, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Today we consider a broad range of existing legal
protections for artists and creators, including the moral
rights of attribution and integrity, the right to terminate a
transfer or license of one's works under the copyright term.
Congress has taken some steps to address these issues, and
I welcome the opportunity to hear from our witnesses about how
our current laws are working and what, if any, changes might be
necessary and appropriate.
I also welcome this chance to examine resale royalties for
visual artists. To date, Congress has failed to adopt a resale
royalty right, a right which would grant visual artists a
percentage of the proceeds each time their work is resold.
Unlike other artists, for example, songwriters and performing
artists who may receive some royalties whenever their works are
reproduced or performed, our visual artists currently benefit
only from the original sale of their artwork. This means that
the artist receives no part of the long-term financial success
of the work. For example, if a young artist sells a work of art
for $500 at the beginning of his or her career and the same
work is later sold for $50,000, the original artist gets
nothing. It is the purchaser, not the artist, who benefits
whenever the value of the artist's work increases.
The Berne Convention, to which the United States is a
signatory, makes adoption of the resale royalty right optional,
but does not allow artists in any country that fails to adopt
this right to benefit from resale royalties in any other
country. Because we do not provide this right, American artists
are prevented from recovering any royalties generated from the
resale of their works in countries that have resale rights.
Seventy other countries now provide resale rights, including
the entire European Union.
Concerned about this lack of fairness for American artists,
I have introduced a bill, H.R. 4103, the ``American Royalties
Too (ART) Act,'' clever acronym, to correct this deficiency and
injustice in the law. The ART Act provides for resale royalty
of 5 percent to be paid to the artist for every work of visual
art sold for more than $5,000 at public auction. The royalty
would be capped at $35,000 for works of art that sell for more
than $700,000. The royalty right is limited to works of fine
art that are not created for the purpose of mass reproduction.
Covered artworks include paintings, drawings, prints,
sculpture, and photographs in the original embodiment or in a
limited edition. Small auction houses with annual sales of less
than $1 million are exempt.
I firmly believe that the time has come for us to establish
a resale royalty right here in the United States. I'm not alone
in this belief. The national arts advocacy organization, the
Americans for the Arts, supports this legislation. So too does
the Visual Artists Rights Coalition, VARC, which includes the
Artists Rights Society, the Visual Artists and Galleries
Association, the American Society of Illustrators Partnership,
the National Cartoonist Society, the Association of American
Editorial Cartoonists, and the Association of Medical
Illustrators, among others. Especially for the politicians who
are Members of this Committee, beware of the wrath of the
Association of National Cartoonists.
The United States Copyright Office, which once opposed
adopting a resale royalty right, also now supports
``congressional consideration of a resale royalty right, or
droit de suite,'' and pardon my French pronunciation or non-
pronunciation, ``which would give artists a percentage of the
amount paid for a work each time it is resold by another
party.''
In its report in December of last year, Resale Royalties
and Updated Analysis, the Copyright Office observed that visual
artists operate at a disadvantage relative to other artists. It
also noted that many more countries had adopted resale royalty
laws since its 1992 report recommending against adoption of
this right, and that the adverse market effects it feared might
result from resale royalty laws have not, in fact,
materialized.
I welcome and look forward to hearing more from Karen
Claggett, the Associate Register of Copyrights and Director of
Policy and International Affairs, who is testifying on resale
royalty on behalf the Copyright Office at the hearing today.
By adopting a resale royalty, the United States would join
the rest of the world in recognizing this important right and
because these other countries have reciprocal agreements, they
would then pay U.S. artists for works resold in their
countries. This would ensure that in addition to resale
royalties for works resold in this country, American artists
would also benefit whenever and wherever their works are sold,
whether in New York or London or Paris.
Serious consideration of resale royalty right is long
overdue.
And I thank Chairman Coble and Chairman Goodlatte for
including this issue as part of the Subcommittee's review today
of the Copyright Act.
With that, I look forward to hearing from our witnesses,
and I yield back the balance of my time.
Mr. Coble. I thank the gentleman.
We have a distinguished panel today, whom I will now
introduce. If you all will please rise, and I will administer
the oath of office to you.
[Witnesses sworn.]
Mr. Coble. I thank you for that. You may be seated.
And let the record reflect that all witnesses responded in
the affirmative.
Our first witness this afternoon is Ms. Karyn Temple
Claggett, Associate Register of Copyrights and Director of
Policy and International Affairs at the U.S. Copyright Office.
In her position, Ms. Claggett advises the Register of
Copyrights, Congress and Executive Branch agencies on domestic
and international matters of copyright law and policy. She
received her J.D. from Columbia University School of Law and
her bachelor's degree from the University of Michigan. Ms.
Claggett, good to have you with us.
Our second witness, Mr. Rick Carnes, President of the
Songwriters Guild of America. In his position, Mr. Carnes
oversees the organization's music creator and administration
program. He currently serves as professor of music business and
musical composition at Middle Tennessee State University, and
he received his education from Memphis State University. Mr.
Carnes, good to have you with us as well.
Our third witness, Mr. Casey Rae, Vice-President for Policy
and Education at the Future of Music Coalition, he is also a
musician, recording engineer, educator, journalist and talking
head. Mr. Rae received his degree in jazz composition from the
University of Maine. Mr. Rae, good to have you with us, sir.
Our fourth witness is Professor Michael Carroll, Professor
of Law and Director of the Program of International Justice and
Intellectual Property at the American University in Washington,
Washington College of Law. Professor Carroll's research focuses
on the history of copyright music and balancing intellectual
property law over time in the face of new technologies. He
received his J.D. from the Georgetown University Law Center and
his bachelor's from the University of Chicago. Professor, good
to have you with us as well.
Our final witness is Mr. Thomas Sydnor, Visiting Fellow, at
the Center of Internet, Communications and Technology Policy at
the American Enterprise Institute. Prior to AEI, Mr. Sydnor
served as counsel for intellectual property and technology to
Chairman Orin Hatch of the Senate Judiciary Committee. He
received his J.D. from Duke University School of Law and his
bachelor's degree from the Ohio State University.
Mr. Sydnor, my law school is located nine miles from your
law school. I will hold you harmless if you hold me harmless.
Mr. Sydnor. I will do so.
Mr. Coble. It can be a delicate exchange, as you know.
Good to have all of you with us. Folks, you will notice
there are two timers on your desk. When the red light changes
to amber, that is your warning that you have a minute to go.
You won't be severely punished if you go beyond the minute, but
try to keep it within the minute if you can.
Ms. Claggett, we'll let you be our leadoff hitter.
TESTIMONY OF KARYN A. TEMPLE CLAGGETT, ASSOCIATE REGISTER OF
COPYRIGHTS, DIRECTOR OF POLICY AND INTERNATIONAL AFFAIRS, U.S.
COPYRIGHT OFFICE
Ms. Claggett. Thank you.
Chairman Coble, Ranking Member Nadler and Members of the
Subcommittee, thank you for the opportunity to appear before
you today to discuss the issue of resale royalties. The
Copyright Office published an updated analysis on the subject
in December 2013, our first review of the issue in more than 20
years.
In simple terms, a resale royalty gives visual artists a
percentage of the proceeds when their works are resold.
Internationally, resale royalty rights are included in the
Berne Convention, which the United States joined in 1989.
However, under Berne, these rights are optional and reciprocal,
meaning that no country is required to provide resale royalties
under the treaty, but if it does not, its citizens may be
precluded from collecting royalties even if their art is resold
in countries where the right exists.
The concept of a resale royalty develops because of the
somewhat unique way in which certain visual artists are
affected by the copyright system. Although visual artists, like
all authors, enjoy the same exclusive rights set forth in the
Copyright Act, as a practical reality, many visual artists are
unable to fully benefit from exploitation of those rights.
Unlike other copyrighted works, such as books and music,
which are reproduced and sold in thousands, if not millions of
copies, works of fine art are typically valued for their
originality and scarcity. While it is true that some visual
artists may sell mainstream reproductions or adaptations of
their work, for example in the form of posters, these are often
not a substitute for the fine art market, and under the First
Sale Doctrine, visual artists will not ordinarily control or
benefit from the resale or later display of their works. This
means that visual artists derive most of their compensation
from that initial sale and they are often excluded from the
more significant profits that their works may generate over
time.
A resale royalty allows an artist to benefit from the
increased value of her work. For example, if an artist
initially sells a work to a collector for a hundred dollars,
and over time the artist's popularity increases such that the
work is later resold for, say, $10,000, assuming a resale of 3
to 5 percent, the artist would receive $300 to $500 from the
later sale under such a system.
Since its inception in France in 1920, many other countries
around the world have enacted resale royalty rights. Currently,
more than 70 countries have adopted some form of resale
royalties. Several other major economies, such as Canada and
China, are also considering a resale royalty. This
international trend is compelling, and because of reciprocity
requirements, it means American artists are often not being
paid.
The Copyright Office first studied the issue of resale
royalties in detail in 1992. Although we didn't recommend
adoption of a resale royalty at that time, we noted that
Congress might want to take another look at the issue if resale
royalties were adopted throughout the European community. In
2001, the European Union did just that and harmonized resale
royalty laws across Europe. We were, thus, gratified that we
were asked to review the issue again by Representative Nadler
and then Senator Cole.
In our more recent review, we concluded that visual artists
may indeed operate at a disadvantage under the copyright law
and that Congress may wish to consider resale royalty
legislation to address this disparity. We highlighted the
number of new countries that have enacted resale royalty laws.
We also cited intervening studies failing to find demonstrated
market harm in those countries with such a right. At the same
time, we acknowledged that a resale royalty right is not
necessarily the only or best option to address the position of
visual artists under the copyright law. We also made some
specific recommendations to include in any resale royalty
legislations.
We were pleased that the current American Royalties Too
bill adopted a number of the office's recommendations,
including a relatively low price threshold for eligibility, a
royalty rate that is consistent with international practice, a
cap on the royalties available from each sale, and a request
for further study from the Copyright Office, always a good
thing.
The issue of resale royalties is that its core an issue of
fundamental fairness. Should visual artists be able to receive
some compensation from the substantial increases in the value
of their works over time to help ensure a fair return on works
that are uniquely produced. Indeed, Congress has emphasized the
concept of fair return as an appropriate consideration in
copyright policy.
The current termination provisions also being discussed
today are specifically designed to allow all authors an
opportunity to further share in the economic success of their
works. These termination rights, however, may have little
benefit for visual artists.
Undoubtedly, the issue of resale royalties still raises
complex questions. The true benefits of a resale royalty are
difficult to accurately quantify and there are concrete
administrative and logistical concerns that Congress may want
to consider in reviewing this issue. For that reason, we also
proposed alternative options Congress may wish to consider as a
way to support and sustain visual artists.
We, at the Copyright Office, look forward to assisting the
Subcommittee as it continues to consider this issue and during
the overall process of copyright review.
Thank you.
[The testimony of Ms. Claggett follows:]
__________
Mr. Coble. Thank you, Ms. Claggett.
Mr. Carnes.
TESTIMONY OF RICK CARNES, PRESIDENT,
SONGWRITERS GUILD OF AMERICA
Mr. Carnes. Yes. Thank you, Chairman Coble and Ranking
Member Nadler for this opportunity to testify on moral rights
and issues of enormous importance to American songwriters.
My name is Rick Carnes and I'm President of the Songwriters
Guild of America. SGA is the Nation's oldest and largest
organization run exclusively by and for songwriters and has
been advocating for the rights of music creators since 1931.
Do I need to turn this up? It got turned off for some
reason.
I'm a professional songwriter living and working in
Nashville for over three decades. And while I've been fortunate
enough to have had a modicum of success in my career, writing
number one songs for Garth Brooks and Reba McIntyre, along with
songs recorded by Dean Martin, Alabama and Loretta Lynn, among
others, I am constantly aware of how copyright law controls my
fate. More importantly, I'm concerned about the fates of my
fellow music creators, many of whom, like my students at Middle
Tennessee State University, are just starting out and may never
have the opportunity to earn a living in their chosen
professions.
I am told that the term ``moral rights'' is the translation
from the French term droit moral. Pardon my French, I'm not
good at that. The concept relies on the intrinsic connection
between an author and his or her creations. Moral rights are
not easy to define, but they are generally regarded as
protecting the personal, reputational and monetary value of a
work to its creator. Many songwriters think of the connection
to their songs as almost familial, as if each song we write is
our baby, and we hope that one day the little fellow will grow
up and make a name for himself and be able to earn a living.
Throughout the world, an author is generally thought to
have the moral right to control his or her work. This concept
is reflected not only in national laws, but in international
treaties and is part of the Universal Declaration of Human
Rights, a basic restatement of natural laws to which the United
States and most countries of the world are signatories.
Although not specifically referred to as moral rights in the
United States, the U.S. Copyright Act and other intellectual
property-related statutes frequently incorporate moral rights
concepts into American law.
Now, I want to, you know, express I'm not French or a
lawyer, so I'm not here to define the scope or definition of
moral rights in domestic or international law, how it is or
should be, but what I am is a professional songwriter, and the
one thing we songwriters know something about and write
frequently about, is what's right and what's good and what's
bad.
And first and foremost, I want to point out the bedrock of
moral rights principles is that a creator has the right to
control the use of something he or she has created and to
receive attribution for such, and these are rights that I have
personally noted are widely embraced in the American public.
SGA applauds this fact, but also notes its longstanding
support for the incorporation of various free speech concepts
into the U.S. Copyright Act through the Fair Use Doctrine. On
that point, I simply want to stress the importance of balance.
Just as we never want to inhibit the free exchange of ideas and
opinions in our society, we should similarly never allow the
Fair Use Doctrine to threaten to overwhelm, control attribution
and economic rights of creators, whereby the exception swallows
the rule of protection. The Fair Use Doctrine, in other words,
should just be left alone.
In that same vein, it's axiomatic that evaluating any
proposals for expanding compulsory licensing of musical works
to include the use of compositions and sound recordings in
compilations known as mash-ups, the current system of combining
the control of rights of creators with the rights under the
Fair Use Doctrine have been more than adequate in creating a
licensing marketplace that addresses and satisfies the needs of
copyright users, including creators of derivative works and
compilations. That system does not need to be nor should it
would be disturbed. Similarly, suggestions that the United
States should break with the rest of the world to reduce the
current term of copyright protection should just be rejected
outright.
Having commented on the moral rights related areas about
which the SGA asked Congress not to act, I would like to take
this opportunity to reiterate SGA's past statements in staunch
support of the right of termination already enshrined in U.S.
copyright law.
SGA continues to believe that it is one of the most
important reflections of moral rights Congress has ever
included in American law. Congress has recognized that the
value of musical works cannot be adequately determined at the
time of their creation, and thereby, fairness and morality
dictate that there must be a right of termination for creators.
Finally, I would like to note the five key principles that
SGA has identified on page 5 of our written hearing statement
that I strongly believe are necessary for a moral copyright
system that treats songwriters with dignity and respect.
SGA truly appreciates the efforts of the Subcommittee on
behalf of music creators. We look forward to working with you
to revise U.S. copyright law in ways that help maintain the
moral right of an essential connection between music creators
and their works.
Thank you.
[The testimony of Mr. Carnes follows:]
__________
Mr. Coble. Thank you, Mr. Carnes.
Mr. Rae.
TESTIMONY OF CASEY RAE, VICE PRESIDENT FOR POLICY AND
EDUCATION, FUTURE OF MUSIC COALITION
Mr. Rae. Members of the Subcommittee, it's an honor to
appear before you today to offer my perspectives on copyright
issues that impact creators and the public.
My name is Casey Rae and I'm the Vice-President for Policy
and Education at Future of Music Coalition, a national non-
profit education and research organization for musicians. In
addition to my work in artist advocacy, I'm also a musician and
I teach a course at Georgetown University on music technology
and policy, so music is my life and it always has been.
One of my earliest memories is drumming along on the side
of a crib to Bee Gees records. I do wish it was something
cooler, but you guys just put me under oath, so I have to tell
you the truth.
Most of my friends and peers are musicians, and those who
aren't, probably wish they were. It's a colorful crowd that
encompasses pretty much every view under the sun, personal,
political and otherwise, so I feel very privileged that my job
here in Washington is to help advance the artist's perspective,
where it's crucial that those voices are heard.
For 14 years my organization, Future of Music Coalition,
has observed the changes to traditional industry business
models, helping artists understand how policy and marketplace
developments affect their livelihoods.
On copyright issues, we tend to be pragmatic. We believe
that musicians and songwriters should have a choice in how they
exploit their copyrights, as well as the ability to reach
audiences and take part in emerging innovations. Musicians are
not a monolithic group, but my own experiences as part of this
community have given me a sense as far as what's at stake on
some of the issues you're considering today.
I'd like to talk for a minute about termination rights.
There is no question that termination rights, that musicians,
songwriters, composers are eligible to terminate grants
transferred after 35 years under Section 203. Unfortunately,
this statutory right is often muddied by major labels that want
us to believe that sound recordings are somehow not part of the
provisions that Congress laid out in 1976. While it's true that
the act exempts certain categories of works, it's absurd to
think that Congress intended to exclude recording artists from
this fundamental right. It's my view and also the view of the
great many artist advocates, legal professionals and copyright
scholars that Section 203 applies to all expressive works and
authors. Current statute allows creators to file to reclaim
their copyrights, and that right is important to maintain.
At FMC, we think that artists should be empowered to make
informed choices, so we've tried to demystify the termination
process, but the important thing to remember here is that these
are fundamental artist rights, and they're crucial rights, not
just for today's artists, but for those yet to come.
Termination rights allow us to have another bite at the
apple even if we end up regranting our rights to a label,
publisher or another entity. Artists may have more leverage
than they did at the time when they first signed, and using
that leverage, we can negotiate more favorable deals or
recapture ownership for the purposes of licensing directly.
These rights are especially important today, given the
evolution of the marketplace. For example, we now have an
expanded range of licensing opportunities and uses that are
still on the horizon. One huge development is the ability to
sell music directly to fans. As an artist, I want to be able to
participate directly in revenue streams generated from the use
of my work, and that's something I hear from other creators as
well. Termination rights are part of our leverage and help
ensure that we receive fair compensation.
I've heard the major labels' arguments that sound
recordings are not eligible for rights recapture, and they
simply don't pass muster. If an artist is an employee, why
aren't they provided with a retirement package or health
insurance benefits like executives or even office assistants?
It's important for those who make a monetary investment in
creativity to have an opportunity to gain a return on that
investment, but a grant of copyright isn't the only way for
that to happen. Today's artists aren't under an obligation to
transfer their rights as a condition of entering the
marketplace. I'm encouraged by new partnerships between artists
and companies, sometimes labels, that don't involve copyright
transfer, but instead employ limited licensing or other
arrangements. That said, if a full grant of copyright makes
sense for an artist to achieve their goals, more power to them,
but they must be able to benefit directly at a later point in
the life of that copyright, and Congress has decided that that
point is after 35 years.
There's two things that Congress can do here: first, make
it plain that sound recordings are unambiguously eligible to
termination; second, ensure that termination rights aren't
undermined in international treaty agreements like the Trans-
Pacific Partnership.
I'd now like to very quickly touch on two other issues
before the Committee. Copyright terms are an ongoing topic of
debate. That said, the Supreme Court did make its call, and we
have life plus 70; one reason is that the international
community was trending in that direction, and we obviously want
other countries to respect and honor our copyrights.
I also believe that it's important for statutory errors to
benefit from the creative labors of their loved ones, but I
don't feel that terms should be extended any further; however,
Congress might want to consider new proposals, for example,
U.S. Register of Copyrights, Maria Pallante, recently offered a
proposal that would involve a re-registration after 50 years.
Perhaps there could be a provision in which if the copyright
owner doesn't come forward to re-register, the author has the
opportunity to do so before that work enters the public domain.
Lastly, moral rights are tricky. Artists in America
definitely embrace free speech traditions and fair use, because
they allow us to freely and creative express ourselves, but I
can say the attribution, as part of a moral rights package, is
something that's supported by every artist that I've ever
spoken to, so if Congress can help with attribution, the
creative community would likely respond favorably.
Once again I thank the Committee for the opportunity to
share my views and those of Future of Music Coalition and our
allies. I'd be happy to answer any questions that you might
have.
[The testimony of Mr. Rae follows:]
__________
Mr. Coble. Thank you, Mr. Rae.
Professor Carroll.
TESTIMONY OF MICHAEL W. CARROLL, PROFESSOR OF LAW, AND
DIRECTOR, PROGRAM ON INFORMATION JUSTICE AND INTELLECTUAL
PROPERTY, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW, AND
THE PUBLIC LEAD OF CREATIVE COMMONS USA
Mr. Carroll. Thank you, Mr. Chairman, Ranking Member Nadler
and Members of the Subcommittee for inviting me to participate
in this hearing.
My name is Michael Carroll. I'm a law professor at American
University, Washington College of Law. I'm also on the board of
directors of a non-profit organization called Creative Commons,
and I'm the lead of Creative Commons U.S.A., which is the
United States chapter, if you will, for the organization.
I want to make a few remarks about Creative Commons and
then about the copyright term. Creative Commons was founded on
the proposition that one size does not fit all. We've heard a
little bit already about creators, but copyright is an
automatic right applied to every work of authorship, and
authors come in all shapes and sizes and are motivated by a
variety of motivations.
What Creative Commons did is create six copyright licenses
that any creator can use to share their works with the public.
The sharing is royalty free, but it is subject to certain
conditions and in those conditions, we've learned a little bit
that touch on some of the issues in the hearing today.
So one of the issues is creators want attribution. So even
the most liberal of the Creative Commons licenses still require
that you give the creator attribution as they direct.
Other conditions can include the requirement that you share
alike any derivative works that are created or that you can't
create derivative works or that you limit your uses to non-
derivative works.
As you surf the internet, I will find more than 500 million
works subject to these licenses. Every time you visit
Wikipedia, you are experiencing a Creative Commons licensed
work of authorship, which is the product of multiple different
authors, motivated more by the desire for attribution than they
are for compensation.
We also have a little experience with the termination of
transfer rule. Many authors would like to reclaim their
copyrights, not for the purpose of compensation, but to make
them available on the internet and those authors face an
administrative gauntlet when they try to terminate their
rights. And when they get to the end of that, they have to pay
a filing fee of $105 for every work of authorship, or if they
package it, a little bit less than the Copyright Office. And
we'd ask whether the Subcommittee would consider a proposition
that would waive that for the purpose of an author who wishes
to share their work publicly rather than to try to monetize it.
Finally, with respect to the copyright term, as I'll
mention in a minute, the copyright term is far too long and
some copyright owners feel like they want the option to get out
of the copyright system. We created a copyright waiver called
CC0, that allows the copyright owner to give up their
copyright.
I would say that there is some question that some people
have under U.S. law about whether one can truly dedicate the
copyrighted work to the public domain or whether it is merely a
transfer that is subject to the termination right. It would be
very helpful if the Subcommittee would take up a measure that
would clarify that a copyright owner has the right to
permanently dedicate the copyrighted work to the public domain
in advance of the expiration of copyright.
Finally, with respect to the term of copyright, copyrights
have to expire. The constitution says so. Congress's power to
grant the exclusive right to authors in their writings is for a
limited time. That limited time currently lasts for the life of
the author plus 70 years. From an economic perspective, to
promote the progress of science means to provide a sufficient
incentive for both the creator and the investors in the
creative process to make a fair return on that investment. Life
plus 70 is far longer than necessary to achieve that goal, and
all of--the brief of the five Nobel laureate economists
submitted in the Eldred v. Reno case in the Supreme Court makes
this clear. For the purpose of brevity, I adopt my--I
incorporate by reference the entirety of Justice Breyer's
dissenting opinion in that case, which lays out all of the
reasons why copyright term is too long.
As a practical matter, there are reasons why shortening the
term may be difficult, but Representative Lofgren in 2003 and
then again in 2005 offered a middle ground solution called the
Public Domain Enhancement Act, which is what my co-panelist,
Mr. Rae, was referring to that Maria Pallante supported. The
idea is that after life plus 50, if the copyright owner still
wants those last years of protection, they have to show us that
they care. So just register. Just pay a dollar to the Copyright
Office and Register, and you can get the remainder of the term.
That would be compliant with international law, but it would
put more works into the public domain quicker and so we'd get a
little bit more of the balance.
And with that, I conclude. Thank you very much for the
opportunity to address this Subcommittee.
[The testimony of Mr. Carroll follows:]
__________
Mr. Coble. Thank you, Professor.
Mr. Sydnor, we have a vote on now, but I think we'll have
time to get your statement in, and then we'll go vote and
promptly return, but you're recognized.
TESTIMONY OF THOMAS D. SYDNOR II, VISITING SCHOLAR, CENTER FOR
INTERNET, COMMUNICATIONS AND TECHNOLOGY POLICY, AMERICAN
ENTERPRISE INSTITUTE
Mr. Sydnor. Thank you, Mr. Chairman and Members of the
Committee.
My name's Tom Sydnor. I am a Visiting Scholar at the Center
for Internet, Communications and Technology Policy at the
American Enterprise Institute. I'm testifying here today in my
personal capacity, and I'd like to thank you for the
opportunity to appear during the Subcommittee's review of
copyright law.
And I am here today in part because AEI recently--the
center asked me to look at a fairly simple question. The issue
of copyright term has long been very controversial. I hope
those controversies do not necessarily distract the Committee's
review from what I consider to be a more critical problem, and
that is that right now today on the internet, with mass piracy
being what it is, too many creators find that the practical
term of their copyright protection is better measured in days
or hours than decades. That enforcement problem is fundamental
to the operation of the copyright system, and I hope the
Subcommittee's review will continue to focus on it.
As far as the issue of term goes, many of the controversies
surrounding it have really centered around the fact that it has
changed over time, and there are competing explanations for
that. We start out, for example, in 1790 with a 28-year maximum
term of copyright protection; today under our current laws, the
average term would be 95 years. It's a significant change, and
the question is why did it occur. Some say it's all just
special interest lobbying, others say that the changes have
been principled.
So what I have been doing with AEI is looking into those
and trying to figure out, why did copyright term change over
time, to what principles did those changes respond. The answer
is fairly straightforward. If you look at the Copyright Act of
1790, the one that signed into law by President Washington and
also James Madison, the others members, the other framers in
the first Congress, if you look at its term-related provisions,
you'll see two principles revealed there.
One, they wanted copyright term to last through the
lifetime of an author plus a potentially short postmortem
author period of protection.
Second, the framers looked into international norms. The
term-related provisions of the 1790 Act are closely modeled on
the best international model available to them, Britain's 1710
Statute of Anne. Those principles for calculating term have not
changed over time. They're the same ones we use today.
What has changed over time is the consequences of applying
them to the situations that have changed over time. So for
example, the framers' first principle, copyright protection
needs to extend through the lifetime of the author, dictated
change in copyright term over time. People began living longer.
Today the average human life expectancy has increased about
over 100 percent since 1790. Those changes necessitated
increases in copyright term. That is what happened in the
Copyright Act of 1831, that also appears to be the principal
driver for the extension of copyright term in the Copyright Act
of 1909.
The other factor that explains why copyright term has
changed is the second principle that the framers looked to, and
that's looking to international norms. In the Copyright Act of
1976, we joined the Berne Convention--we moved towards--I'm
sorry. We adapted our term provisions toward those in the Berne
Convention. And a principle underlies the Berne Convention's
approach to calculating the postmortem author period for
copyright protection. Basically you could call it three
generation copyright protection: copyrights should last through
the lifetime of the author, the author's children, the author's
grandchildren, those likely to have known the author and heard
their expressive intentions personally.
This is a sensible approach to copyright term and those two
factors; increasing life span of authors and the change in the
principles we use to calculate the postmortem author period,
can account for the changes in copyright term that we have seen
since the first copyright that came along in 1790. Those
changes have been principled. The decision in the Copyright
Term Extension Act to go to a system of life plus 70 was in
part a response to the Berne Convention's 1948, established in
1948, rule of the shorter term. We have again looked to
international norms as we have evolved our copyright laws.
So I do believe the evolution of copyright term has been
principled and the laws we have today make sense and that will
certainly not end all controversies, but I do hope it helps
inform the Committee's review. Thank you.
[The testimony of Mr. Sydnor follows:]
__________
Mr. Coble. Thank you, Mr. Sydnor.
We have a vote on the floor, folks, so we will be back on
or about 20 minutes. So you all rest easy in the interim, and
we'll see you shortly.
[Recess.]
[3:21 p.m.]
Mr. Marino [presiding]. This hearing will now come to
order. I believe that everyone has made their opening
statement. Is that correct, Mr. Sydnor? You made your opening
statement? I had to step out for a moment. I had someone in the
hall.
Mr. Sydnor. Yes, I did.
Mr. Marino. Okay. So now comes the time for our
questioning, and I am going to as I traditionally do, I will go
last regardless of who shows up and ask if my colleague, the
Ranking Member, Mr. Nadler, would begin by asking you
questions.
Mr. Nadler. Well thank you, Mr. Chairman.
Let me begin by asking a few questions of Ms. Clagett. How
many other countries have a resale royalty for artists?
Ms. Claggett. We surveyed the international world to see
how many resale royalties have been adopted, and we counted
more than 70 countries with resale royalty rights.
Mr. Nadler. And France first created this in 1920?
Ms. Claggett. Yes. They were the first country.
Mr. Nadler. This is not a new concept?
Ms. Claggett. Not at all.
Mr. Nadler. We have got plenty experience with it?
Ms. Claggett. Yes.
Mr. Nadler. You mentioned in your testimony that the EU,
the European Union, extended royalties to all EU member states.
Do you agree that this constitutes a growing international
consensus that artists deserve to benefit when their works of
visual art are resold?
Ms. Claggett. Yes. As you mentioned this is an issue that
has been debated and looked at since 1920, and it is something
that more recently a number of countries have adopted. We
counted just in the time between our 1992 report and our 2013
report, more than 30 countries adopting a resale royalty right.
Mr. Nadler. More than 30 countries in the last dozen years,
or 20 years?
Ms. Claggett. Right.
Mr. Nadler. Now, why do you believe there is a compelling
international trend that makes U.S. review of the resale
royalty timely an important?
Ms. Claggett. Because of the number of countries that are
actually adopting a right. As I mentioned in my testimony,
since the resale royalty right under the Berne Convention is
reciprocal, that does in some sense work to disadvantage of
American artists twice that is where they can be at a
disadvantage because they don't actually have resale royalties
in the United States, but they are also disadvantaged because
they don't have the ability to actually take royalties in
countries that do have the right and since more and more
countries are adopting a right, that serves to put them at a
disadvantage.
Mr. Nadler. At a greater and greater disadvantage?
Ms. Claggett. Yes.
Mr. Nadler. Have you reviewed the American Royalties Too
Act?
Ms. Claggett. Yes.
Mr. Nadler. Does the legislation incorporate many of the
recommendations of the Copyright Office, and do you believe it
would benefit artists without harming the art market or unduly
burdening auction houses that already administer resale
royalties in other countries?
Ms. Claggett. We were certainly very pleased that the
American Royalties Too Act adopted a number of our
recommendations. As we had said in our report, we wanted to
make sure that a royalties bill would be able to address the
most number of artists with the least amount of harm to the art
market, so some of the recommendations that were taken in the
American Royalties Too Act, including the low eligibility
threshold, the cap on a royalty rate, further study to see how
things would operate in the market, were really key
recommendations that we were very pleased that the bill
adopted.
Mr. Nadler. So from the experience in other countries and
from your examination of the bill, do you believe that it would
harm the art market?
Ms. Claggett. We were not able to find any direct studies
or empirical evidence that a resale royalty bill would, in
fact, harm the art market. That was one of the things we raised
in our report.
Mr. Nadler. When you say you haven't found any empirical
evidence----
Ms. Claggett. No.
Mr. Nadler [continuing]. In countries that have adopted it?
Ms. Claggett. Right. For example, the European Union did a
study in 2011, I believe. The UK did a study in 2008. The UK,
which is one of the largest art markets in the world, their
study concluded they couldn't find any harm or diversion in the
art market from the UK after the adoption of a resale royalties
right.
Mr. Nadler. Now, you say that at its core the issue of
resale royalties is an issue of fundamental fairness. Why do
you believe it is critical for visual artists to be able to
receive some compensation from the substantial increases in the
value of their works over time?
Ms. Claggett. Well, it just goes back to the underlying
premises of our copyright system, that by receiving economic
compensation for the fruits of their labor, for their work,
they will be incentivized to create more works and resale
royalties helps to provide additional benefits for artists.
They can use the payments that they receive from royalties to
reinvest in their art and to be able to conduct their work
full-time as an artist.
Mr. Nadler. Now, in your testimony, you say, and I quote,
``the office also cited studies indicating that the adverse
market harms that have been predicted to result from such laws,
had not materialized in countries that had enacted resale
royalty legislation.'' Why do you think that these adverse
market harms that had been predicted to result from resale
royalty works did not occur in the countries that enacted this
kind of legislation?
Ms. Claggett. I think that one of the reasons is just the
fact that a resale royalty is actually only going to be one
small factor that will affect the art market. These studies
highlighted the fact that there are a number of factors that
will affect, you know, where the market will be.
For example, there are other fees and commissions that are
often imposed on art transactions that also affect the art
market. You can't focus just on a resale royalty. Buyers
commissions, for example, in auction houses are much higher
than a resale royalty. I think the UK report noted that the
cost of shipping art overseas actually might in some sense be
more than a resale royalty. So, there are a lot of factors in
how the art market operates, and trying to pin it on a resale
royalty is something that, at least the studies we reviewed,
weren't able to do.
Mr. Nadler. So the harms that were predicted did not occur?
Ms. Claggett. Yes.
Mr. Nadler. And my last question really is, the large
auction houses, specifically Sotheby's and Christie's, are
lobbying against this bill very hard. They are saying it will
harm the art market as it hasn't done abroad. Are the big
auction houses doing okay in the art market and sales abroad
where they have the resale rights?
Ms. Claggett. I wouldn't want to speak on the auction
houses, I will say that we did note in our report that the
auction houses had, for example, recently increased their
buyer's commission, which is another fee that is imposed on art
transactions, and the art market was able to accommodate that
fee without being harmed in any specific way.
Mr. Nadler. So we have a robust market and an unfairness,
and fixing the unfairness by passing this bill would not appear
either theoretically or from experience over the last 20, 30
years to harm that market in any way?
Ms. Claggett. No. I mean, we did note that there are some
continuing studies going on. For example, the UK is in the
process of doing another study that we would obviously want to
be able to consider as we review this issue, but for the work
that we have done so far, we haven't been able to find any
evidence that there would be a significant harm in the market.
Mr. Nadler. So we should join the rest of humanity in this
respect. Thank you very much.
I yield back.
Ms. Claggett. Thank you.
Mr. Marino. Chair recognizes Mr. Conyers.
Mr. Conyers. Thank you, Chairman.
I would like to begin with the Songwriters Guild president,
and could you explain from your perspective how moral rights,
specifically the rights of at attribution and integrity are
important to the song writing community.
Mr. Carnes. Yes. Certainly attribution is incredibly
important if you are going to establish some sort of
credibility as a songwriter. You know, songwriters sort of
labor in the back stage part of the music business to begin
with. So what we really need is for somebody somewhere to know
that we wrote those songs and if we don't have for instance,
our names on the title and then our names underneath the title
on some sort of album cover, or nowadays it is videos. They'll
show the video and if they don't attribute the work to us, then
we lose the you know, the credibility of being the writer that
wrote that song and unfortunately, most of the public thinks
that the artists write all of their songs by themselves, and
because of that it makes it harder for us to establish our
careers.
In terms of right of integrity, certainly when you have a
song that is about something that you feel is significant and
it is you know, like I had a song it was about my mother and
the death of my mother. It was very important to me. I wouldn't
want to see that song played on you know, YouTube with somebody
getting hit in the crotch with a baseball bat, for instance. I
think that there are uses of songs that do actually hurt the
integrity of the song, and that actually affects not just the
moral rights but the economic value of the song.
Mr. Conyers. Well, thank you so much.
Let me ask Mr. Rae of any recommended steps that we and the
Congress may take to help with the attribution for moral
rights?
Mr. Rae. One of the issues that has bedeviled the music
industry for a long time is the fact that we don't have a lot
of good information about who owns what, which is a fundamental
first stage problem.
And the second stage is also, yes, absolutely for the
purposes of compensation, for the purposes of just being
recognized for your work and having opportunities to get new
work from that recognition, attribution is an important
component. I think that within the area of attribution, also
extending to termination rights and even copyright terms, all
of our current tensions in the music industries at least, could
be somewhat relieved by having better informational management
systems.
In a previous hearing on music licensing, a colleague Jim
Griffin, spoke about ways forward to get those information
systems in place, and I think that there could be a requirement
for attribution in certain use environments that would be very,
very helpful to musicians and songwriters.
One of the issues from our research into sampling and remix
culture, for example, has demonstrated very clearly that in
many instances, even if it is not remuneration, that a
recording artist seeks, it is certainly attribution. So I think
attribution is a very important area that Congress could work
to clarify. Any efforts in that direction would be greatly
enhanced by having better informational systems about who owns
what music, who performed on what songs and who wrote those
songs.
Mr. Conyers. Mr. President of the Songwriters, do you think
there needs to be more clarification on who owns what?
Mr. Carnes. Well, yes, there does need to be, but it is
very difficult to determine who is going to control that
information, how difficult and costly it is to actually gather
that information, how to get the societies that might have that
information to cooperate with each other, what the data format
might be for all that information to be shared and what systems
will control it. It is a great concept. It is hard to actually
effectively get that concept to work in the real world. I
approve of the idea, certainly.
Mr. Conyers. So there is work going on to make sure that it
improves?
Mr. Carnes. Yes. We have been seeing that unfortunately go
on for years and years and years.
Mr. Conyers. Been going on for a while?
Mr. Carnes. Uh-huh.
Mr. Conyers. Thank you, Mr. Chairman.
I will turn back any time that remains.
Mr. Marino. The Chair recognizes Mr. Smith.
Mr. Smith of Missouri. Thank you Mr. Chairman.
Mr. Carnes, it is a pleasure for you to be before our
Committee as a songwriter who has wrote some songs for my
favorite musical artist. I am not going to say her name, but
she is clearly the queen of country music and let's just say I
can't even get the blues no more.
Mr. Carnes. There you go.
Mr. Smith of Missouri. But my question would be, how does
one balance the free speech principles with an artist's desire
to control downstream uses of his work?
Mr. Carnes. Well, copyright itself has all kinds of
protections for free you know, for free speech and First
Amendment rights. As a matter of fact, copyright is the driver
of free speech I think, and then you know, the Supreme Court
has agreed with that.
In terms of copyright limiting free speech, it is not free
speech we are limiting. It's, we have a unique expression. Like
if I write a song about love, it is my unique expression of
love. I am not keeping anybody else from writing a song about
love. Right? So I think that all the protections for First
Amendment free speech are in the copyright law because it is
about my unique expression. I am not limiting anyone else's
expression.
Mr. Smith of Missouri. Perfect. Thank you.
Mr. Rae, in your testimony you talked about the term of
copyright. In your opinion, what effects would extending the
term of copyright do for independent artists and creators?
Mr. Rae. I think one of the things that really needs to be
addressed here is how do we advance fundamental respect for
copyright, because at the end of the day, even for a small
creator, especially for a small creator, copyright is one of
the tools, perhaps one of the more important tools that you
have at your disposal, to get paid and to protect your rights.
The issue here is that in the public mind, perhaps wrongly,
many people believe that copyright has been extended only for
the benefit of corporations. So I think perpetuating that idea
is very, very difficult, and I think further term extensions
might actually exacerbate that fundamental disconnect from the
value of a creative work and who benefits from its
exploitation.
I would like to see balance restored to copyright so we
could feel confident that artists have an ability to be cut
into the value generated from their works under whatever term
Congress or you know, the Supreme Court previously decided, but
certainly not at a point where it starts to cheapen the value
of copyright in the eyes of the public that also benefits from
its availability.
Mr. Carnes. If I may interject real quickly because this is
very near and dear to my heart, the copyright term.
I would like to point out that when we talk about perhaps
reducing the copyright term or making some sort of formalities
happen at 50 years, it is time to stop and remember that the
actual effective term of copyright right now with the piracy
that is going on, is from the time I write the song and the
first recorded version of it gets uploaded to the internet,
because the second it goes up there, I lose control of the
copyright.
Copyright becomes a voluntary opt-in system now because I
have no effective way to enforce my copyright because I have to
make a Federal case out of actually suing someone for
infringement, and I don't have a quarter of a million dollars
to sue. Okay, so it becomes prohibitively expensive. If we had
some sort of small claims venue perhaps, you know, like the
Copyright Office is doing a study about that now, that might be
a way in which we could actually enforce our rights. So that's
all I'm saying.
The term of copyright we should just leave where it is
right now because, like I say, it has been shortened
drastically by piracy.
Mr. Smith of Missouri. Thank you.
Mr. Sydnor, would you like to respond to that question?
Mr. Sydnor. Certainly. Thank you.
I think Mr. Rae made an important point when he said that
public perceptions of copyright term may perhaps, wrongly, I
think that the last two laws is the product of special interest
lobbying. The simple truth of the matter is the term we have
right now is there for reasons. We evolved to it for reasons
that have never changed during the history of the republic.
It is a sensible way of limiting copyright, basically
cutting off copyright term during a period defined by the lives
of the people who knew the author and his or her work
personally, and are likely as an economic matter to be best
situated to be able to decide how to exploit the expressive
value of the work, which is what copyright protects.
So what I hope my research helps clarify is that, in fact,
what we have seen a principled evolution of copyright term
where the principles haven't changed. The consequences of
applying them have, and I think that has given us the copyright
term that we set out to create.
Mr. Smith of Missouri. Thank you, Mr. Chairman.
Mr. Marino. Ms. Clagett, I am going to ask you a question,
and if anyone else would like to respond to it down the line,
please do so.
There is a legal term, and I am sure you are aware of it of
rule of perpetuity. Some countries allow, it is the law that
family members will continue to inherit from a piece of work if
there is something to inherit, meaning that the owner or the
owner's family will keep that in their possession forever.
Would you please give me your insight on the up side or the
down side to that concept?
Ms. Claggett. Well, with respect to copyright law, there
certainly would be a down side if you were able to keep control
forever. That would be against our Constitution which provides
for a limited term of copyright and would upset the balance
that our founding fathers had in terms of providing for
economic rights for authors but also ensuring that public works
or creative works would be disseminated to the public.
Mr. Marino. Anyone else?
Mr. Sydnor. One comment, I guess. I think Ms. Clagett is
right. Obviously our copyright term has a limit, it can be and
copyrights are descendable. They can transfer down to
descendants and survivors of descendants. It has been that way
clearly since 1831.
And the other point that might be worth mentioning on this,
that it ties in with, we have been discussing termination of
transfers in this hearing. It is also important to realize that
in evaluating some of the controversies about termination of
transfers, I do think it is important to recognize what it
replaced. What it replaced was the two-part system of an
initial and a renewal term of copyright protection that we
relied on from 1790 until 1978.
We replaced that system because it was intended to do what
termination of transfers were intended to do. It was intended
to provide a benefit for the artist, but people turned out to
be not very good at marking their calendars 28 years in
advance, and as a result, it simply ended up with a lot of
copyrights, artists not having their copyrights at all.
So termination of transfers is certainly a better way to
pursue a goal that we have consistently, that has been part of
our copyright law since 1790.
Mr. Carroll. I would just like to add I think that in the
question it is implied that this idea of property is the same
when we talk about land and when we talk about copyrights, and
they are really quite different because scarce resources and
ownership over scarce resources is different than ownership
over information rights and that the founders recognized that
difference when they put the limited times in the Constitution.
And I read the history different than Mr. Sydnor about the
two terms. I think most copyright owners didn't have any
economic use for their copyrights after the first term and
didn't bother to re-register, and so I think there is a lot of
public benefit from a limited time, and any extension, any
incursion into the public domain would actually harm the
public.
Mr. Rae. I would add that explicit in the compact outlined
in the Constitution is the incentive to author benefit, but
also it is to bring new creative works forward.
But the issue sometimes that we bump up into in the music
industry, is the Constitution is silent on intermediaries. It
doesn't mention anybody to whom those works are transferred. So
somewhere before that work reaches the public domain in its
natural life, whether that is life plus 70 or whatever the term
is, artists still need to be able to tap into that value at the
end of that life span and I think that that is definitely in
favor of preserving, maintaining, and potentially clarifying
termination.
One other point that I would like to make is our music
industries have also, artists within them have struggled
because oftentimes a rights holder to whom a copyright is
transferred, doesn't publish the work, doesn't bring that
record album forward, doesn't release the LP.
And I think that another way Congress might be helpful is
establishing a point by which an artist can recapture that
right if the transferee, the label or the publisher does not
exploit it.
Mr. Marino. Thank you. My time has just about expired.
I see no other Congressmen or Congresswomen here to ask
questions.
So as a result I want to thank the Committee for being
here. I apologize again for interrupting, but you know how the
votes go.
This concludes today's hearing. Thanks to all of our
witnesses attending. Thanks to the people in the gallery for
being here.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record. This hearing is adjourned.
[Whereupon, at 3:44 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record