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ASCAP”) Respectfully Submits These Comments in Response to Request for Comments and Notice of Hearing Issued On

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ASCAP”) Respectfully Submits These Comments in Response to Request for Comments and Notice of Hearing Issued On BEFORE THE U.S. PATENT AND TRADEMARK OFFICE NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINSITRATION Request for Comments on Department of Docket No. 130927852-3852-01 Commerce Green Paper, Copyright Policy, Creativity, and Innovation in the Digital Economy COMMENTS OF THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS The American Society of Composers, Authors and Publishers (“ASCAP”) respectfully submits these comments in response to Request for Comments and Notice of Hearing issued on September 30, 2013 by a task force of the U.S. Patent and Trademark Office and the National Telecommunications and Information Administration (the “Task Force”) concerning certain issues presented in its recent Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy (the “Green Paper”). 78 Fed. Reg. 61337 (October 3, 2013) (the “Notice”). Introduction ASCAP, established in 1914, is the oldest and largest performing rights organization (“PRO”) in the United States. ASCAP licenses, on behalf of nearly 470,000 composer, songwriter and music publisher members, the right to perform publicly the many millions of copyrighted musical works in its vast repertory, which encompasses every musical genre, including pop, jazz, rock, classical, movie/television composition, country and urban. ASCAP’s 1 members include music luminaries ranging from George Gershwin and Irving Berlin to Madonna, Bruce Springsteen and Garth Brooks. However, most of ASCAP’s songwriter and composer members are essentially small businessmen and women who make their living writing music, relying heavily on the royalties collected and paid to them by ASCAP. ASCAP grants public performance licenses to a wide range of users, including, for example, television and radio broadcasters, cable programmers and system operators, live concert producers, hotels, nightclubs, universities, municipalities, libraries and museums. As new means of technology have been created to transmit music, ASCAP has sought to offer new forms of licenses appropriate to these mediums. Indeed, ASCAP became the first PRO to offer a license for online performances of its members’ works. Since then, ASCAP has developed licenses for all forms of digital and online performances including streaming services, ringback tone services, mobile services and digital applications. Ensuring the proper and efficient licensing of ASCAP members’ works performed online has therefore become an important and crucial focus for ASCAP. Considering that the livelihood of ASCAP’s songwriter and music publisher members depends on a strong and robust copyright law, ASCAP has a keen interest in the Task Force’s proceedings. ASCAP has shared its views regarding issues of importance to its members and appreciates the opportunity to participate further and continue working with the Task Force as it continues its study. 2 Issues of Concern to ASCAP and its Members. Music, more than any other type of creative work, has been at the forefront of the copyright debate. Not a day passes without an article or news segment relating to the issues surrounding the intersection of music, technology and copyright. Often at the heart of these issues is a focus on the proper development of a successful music licensing marketplace in the digital age. The Task Force demonstrated its appreciation of this fact in its support for Congressional attention to music licensing. The Notice does not focus on music licensing, but rather on five distinct issues. However, music licensing is directly relevant, or of paramount relevance to, each of the five topics on which the Notice seeks comments. While ASCAP licenses only the public performance right, its members have sound interest in how their other rights -- reproduction, distribution, creation of derivative works -- are affected through online and other digital usage. To that extent, ASCAP supports the comments filed by the National Music Publishers Association on the noticed issues regarding remixes, first sale, statutory damages and the operation of the DMCA notice and takedown system. ASCAP supplements some those comments further below. * * * At the outset, ASCAP wishes to underscore that this nation’s copyright law is bound to further to Constitutional objectives of promoting the “progress of science and useful arts.” U.S. Constitution, Art. 1, §8, cl. 8. These objectives are met by ensuring a strong framework that encourages continued creative production by, in part, ensuring the creators the ability to control, and receive fair remuneration for, the use of their original works. As the Supreme Court explained: 3 The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.” Mazer v. Stein, 347 U.S. 201, 219 (1954). While the Internet age has provided for an easier, or more efficient, manner by which works can be created and disseminated, the core principles underlying this country’s copyright law remain unchanged. Accordingly, we submit that the first and fundamental question to be asked is not whether the current legal framework for these issues requires adjustment, but whether and how current and future marketplace solutions can best serve to meet the interests of creative and user communities. By way of example, it took years of litigation under current copyright law – leading to the Supreme Court Grokster decision – for the marketplace to adjust and respond to new online digital music distribution technologies resulting in the creation of dozens of legal and successful content services. The Copyright Act did not require further adjustment to meet those recent distribution technologies; rather, marketplace solutions were able to develop and adapt to technological changes. Of course, where marketplace solutions are hampered by the law or otherwise, a fresh outlook may well be necessary. The issue of orphan works is a prime example. By definition, orphan works are those works for which it is impossible to achieve a marketplace solution, by virtue of not possessing the necessary copyright owner and work information necessary to create a marketplace. The Task Force properly understood that this marketplace failure cannot be adequately addressed through current copyright law, and Congressional or other remedial action may in such case be appropriate. 4 The Task Force likewise recognized that the current music licensing environment displays marketplace failures and remedial improvement is necessary. Such was the case when Congress enacted the Digital Performance Right in Sound Recording Act and the Digital Millennium Copyright Act; the copyright law at such time, to the detriment of music creators, was not sufficient to permit a marketplace providing remuneration to creators for digital transmissions of music. ASCAP does not concede that the current system is completely “broken.” Indeed, ASCAP’s blanket license has been oft-heralded as a solution to the difficulties inherent in online licensing. And, as discussed below, the musical works industry is the single industry where access to licensing information is readily available and no orphan works issue exists. However, a confluence of factors has provided a marketplace that, as the Green Paper attests, many have deemed to be dysfunctional. Online Music Licensing Environment The Green Paper describes the multiple steps legal content services must take to ensure proper licensing of the multiple rights affected by their technology. See Green Paper, at 82-85. Currently, a structure is in place that provides for a complex navigation that is difficult for music users, leaves licensing gaps, and that ultimately provides unfairly low and inadequate remuneration to songwriters and music publishers. The Task Force recognized that in this area, current law may not properly reflect Constitutional objectives. If the current system cannot provide a mechanism by which a fair market can be achieved -- and it appears that it cannot -- it must be addressed. 5 Impediments to the Functioning Online Marketplace. Songwriters and publishers have been hampered by a compulsory license (for “mechanical” reproductions) and a consent decree rate court process (for performing rights) that have resulted in an environment in which music users have an almost unfettered ability to use copyrighted songs, but do so without paying a fair and adequate price. ASCAP and BMI operate under outdated consent decrees (in ASCAP’s case over 70 years old) that impose upon the PROs various requirements and prohibitions that have failed to adjust to the current business landscape.1 While the decrees appear to achieve efficient licensing mechanisms by obviating the need to negotiate separately with each of thousands of copyright owners through the use of the blanket license, they ultimately do so in a manner that devalues the rights of songwriters and music publishers. Users may receive the right to perform (but not reproduce) the millions of musical works in ASCAP’s repertory simply by asking, but can do so often without paying a fair market fee that takes into account the full value of the uses made under the license. No specific rate standards have been dictated to the ASCAP rate court that serves as a gapstop measure should ASCAP and a user not
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