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MITCHELL SILBERBERG & KNUPP LLP Eric J. Schwartz A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS (202) 355-7903 Phone (202) 355-7893 Fax [email protected] February 6, 2020 Submitted via regulations.gov Docket No. USTR–2019–0023 Mr. Daniel Lee Acting Assistant United States Trade Representative for Innovation and Intellectual Property Office of the United States Trade Representative 600 17th Street, N.W. Washington, D.C. 20508 Re: SoundExchange, Inc. Written Comment in Response to USTR’s Request for Comments and Notice of Public Hearing Regarding the 2020 Special 301 Review, 84 Fed. Reg. 70613 (Dec. 23, 2019) Dear Mr. Lee: This submission by SoundExchange, Inc. (SoundExchange) is made in response to the above-captioned Federal Register Notice, which requested public comments regarding intellectual property protection and market access barriers in U.S. trading-partner countries, as part of the 2020 “Special 301” review. This filing focuses on particular market access barriers that have been imposed on American musical performers and producers in a handful of countries where the full payment of royalties has been denied for uses of American sound recordings1 on traditional broadcasts, public performances (e.g., “spins” in bars, restaurants and other public venues) and some digital uses. In these territories, “local” performers and musical producers are being fully compensated for such uses, while American performers and producers are being denied payments for the exact same uses. This discriminatory treatment is a denial of full national treatment in contravention to the purpose and principles of national treatment obligations found in multilateral treaties and trade agreements, and other bilateral commitments to the United States in each of these countries. The territories identified in this filing for review under Special 301 are: the United Kingdom; Australia; Canada (on the USTR’s 2019 Watch List); France; Japan; and the Netherlands (collectively, the Six Territories).2 In the absence of full national treatment, the total amount of monies being denied to American performers and producers in these Six Territories is $170 million annually. 1“Sound recordings” (the U.S. term for musical recordings) and “phonograms” (the term in many foreign countries) are used interchangeably throughout this filing. 2Note, there are other foreign territories similarly denying payments to American performers and producers, but the Six Territories are the largest markets for the music industry where this is occurring, and thus the focus of this filing. 1818 N Street, NW, 7th Floor, Washington, DC 20036-2406 Phone: (202) 355-7900 Fax: (202) 355-7899 Website: WWW.MSK.COM Written Comment of SoundExchange, Inc. Regarding the 2020 Special 301 Review February 6, 2020 Page 2 From these Six Territories, in 2018 SoundExchange received approximately $3.8 million in payments, while making a combined $100 million in payments to the Six Territories.3 SoundExchange and its Role in the Music Ecosystem SoundExchange—a non-profit organization incorporated in 2003—was formed by and for the recorded music industry to administer royalties for digital transmissions of recorded music. It provides services for royalty payments for sound recordings and publishing, serving as a critical backbone to today’s digital music industry. The organization collects and distributes digital performance royalties on behalf of more than 202,000 recording artists’ and master (i.e., sound recording) rights owners’ accounts. It collects these royalties on behalf of major and independent record labels, performers and their representatives (managers and agents), and unions representing musical performers. Since its founding, SoundExchange has paid out more than $6 billion in royalties to over 170,000 artists and rights owners globally. It currently administers royalties from over 3,000 digital radio services (such as Sirius XM, Pandora, and iHeart Radio). In every musical recording, there are two copyrighted works, each with separate rights holders. The first work is the sound recording—it is the result of the fixation of music on any medium (vinyl, disks, tapes etc.), owned usually by a record label, but it can also be owned or co- owned by the performer(s). The second work is the musical composition—consisting of musical notations and lyrics, owned by composers, lyricists, and music publishers. In the United States, SoundExchange administers rights in the sound recordings for the statutory license—for non- interactive digital services—allowing services to stream artistic content while paying a fixed rate for each play.4 These services include both satellite radio providers and webcasters who pay SoundExchange when they stream music because their uses are covered by the statutory license. Public performance royalties for songwriting (e.g., compositions) are collected and distributed by performing rights organizations such as ASCAP, BMI and SESAC in the United States. Royalties for downloads (e.g., the reproduction right) of sound recordings are paid directly by the services that offer downloads, and not administered by SoundExchange. Even limited to non-interactive musical streaming services and digital radio, sound recording digital transmission royalties in the United States alone resulted in SoundExchange collecting $1.127 billion and disbursing $953 million in 2018. Studies by the industry give a fuller picture of the growing market for streaming services and digital radio and the role of SoundExchange globally. According to the September 2019 International Federation of the Phonographic Industry (IFPI) Global Music Report (the “2019 IFPI Report”) using 2018 data, total global revenue for music (digital and physical formats and services) was $19.1 billion. The 2019 IFPI Report notes that there are now thousands of streaming services offering over 50 million recordings worldwide, and revenue for some services is growing at exponential rates (four-fold between 2014 and 2018). 3In total, SoundExchange collected $25 million from abroad in 2018. 417 U.S.C. § 114. SoundExchange also administers direct licensing of recordings for some music services (that are not under the statutory license in §114), and it administers licenses for a Canadian music publishing society, but neither of those activities are relevant to this filing. Written Comment of SoundExchange, Inc. Regarding the 2020 Special 301 Review February 6, 2020 Page 3 In 2018, SoundExchange paid all foreign performers and producers 12% of the total U.S. payments it distributed, or $115 million of $953 million (verified by the payments made to non- U.S. addresses). Of that $115 million, SoundExchange made payments to these Six Territories of nearly $100 million. Although SoundExchange collects foreign monies only via foreign collective management organizations (CMOs) through reciprocal agreements, SoundExchange makes payments to performers and producers overseas through both CMOs via those agreements, or by direct payments to performers and producers. In the United States, SoundExchange administers the statutory license, collecting and distributing digital streaming monies (i.e., for webcasting and satellite radio) to American and foreign producers and performers. Outside of the United States, SoundExchange represents American producers and performers for all of their eligible sound recording performance rights that are collectively managed by CMOs. This includes monies for digital streaming and digital radio as well as for traditional broadcasting (radio and television) and other public performances (playing recordings in bars, restaurants and other public venues). The CMO agreements allow SoundExchange to pay foreign performers and producers U.S. royalties via their own local CMOs, while collecting monies from those CMOs for SoundExchanges’s own member performers and producers in the United States. SoundExchange has reciprocal CMO agreements with each of the Six Territories to facilitate payments across borders. Denial of Full National Treatment and Royalties as a Market Access Barrier The federal statute requires the Special 301 review to identify “foreign countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.”5 SoundExchange relies on copyright and neighboring rights laws to administer musical rights in the United States and abroad. The details below explain, in each of the Six Territories, the acts, practices, and policies of our key trading partners that serve as barriers to market access and deny the payment of hundreds of millions of dollars to American performers and producers, in short by denying full national treatment. Appendix A provides the full text of the relevant treaties regarding national treatment and rights obligations pertaining to sound recording producers and performers. National treatment is a bedrock underlying principle of all copyright and neighboring rights treaties, and has been since 1886 in the Berne Convention for the Protection of Literary and Artistic Works (“Berne”).6 The principle, when applied to copyright and neighboring rights agreements, requires works and recordings of non-national authors, producers, and performers to be protected, at a minimum, at the same level of protection as the works and recordings of national authors, producers and performers. Full national treatment ensures that one set of laws in a country equally 519 U.S.C. § 2242(a)(1) (West,
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