Submitted by Susan Chertkof on behalf of The American Association of Independent Music (“A2IM”) and Recording Industry Association of America, Inc. (“RIAA”)
Before the UNITED STATES COPYRIGHT OFFICE Washington, D.C.
In the Matter of:
Group Registration of Works on an Docket No. 2019-4 Album of Music
COMMENTS OF THE AMERICAN ASSOCIATION OF INDEPENDENT MUSIC AND RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.
The American Association of Independent Music (“A2IM”) and the Recording Industry Association of America, Inc. (“RIAA”)(together the “Commenters”) are pleased to provide these comments in response to the Notice of Proposed Rulemaking (“NPRM”) published by the Copyright Office (the “Office”) on May 20, 2019. See 84 Fed. Reg. 22762.
A2IM is a nonprofit trade organization that supports and promotes the creative and financial vitality of a broad coalition of more than 600 independently owned U.S. music labels. RIAA is a nonprofit trade organization that supports and promotes the creative and financial vitality of the major record companies in the United States. The members of A2IM and RIAA collectively create, manufacture and/or distribute nearly all of the sound recordings commercially produced and distributed in the United States. Our members produce, release, and register albums of music on a frequent and regular basis and thus have a keen interest in the registration options for those albums that are made available to them through the Office.
The Commenters appreciate the opportunity to share our views on the issues raised by the NPRM. In these Comments, we respond to issues of concern raised by the proposal to allow Group Registration of Works on an Album of Music (“GRAM”).
Introduction
We applaud the Office for creating a mechanism that, under appropriate conditions, will enable sound recording copyright owners to register works on an album of music, along with any associated album art, liner notes, posters, and so forth, by filing a single copyright registration application and paying a single filing fee. By making it easier and more affordable for owners of sound recordings to register multiple works at the same time, this new registration option will likely facilitate broader participation in the copyright registration system. In addition, the new GRAM option should further incentivize registration by making clear that each individual work included in a GRAM registration is eligible for a separate award of statutory damages in the event of infringement.
The GRAM proposal addresses two recurrent problems that have been of concern to our members. First, the Copyright Office has implemented what amounts to a de facto bright line test for determining what constitutes a collective work. As a result, the Office now regularly refuses to register as collective works “extended play” albums (“EPs”) with three or fewer tracks (hereinafter “Short EPs)”. See NPRM at 22763, n. 14 (citing Compendium (Third) sec. 312.2 “selection[s] consisting of less than four items will be scrutinized for sufficient authorship”); see also NPRM at 22765 (“This [GRAM] option also benefits copyright owners that are seeking to register two or three works that likely would not meet the statutory requirements for a collective work.”)1
Second, the Office has refused to extend the unit of publication registration option to digital bundles. The unit of publication option is “an administrative procedure that allows an applicant to register a number of works that were physically packaged or bundled together as a single unit by the claimant (e.g., a CD packaged with cover art and liner notes) and first published on the same date.” NPRM at 22763 (citing Compendium (Third) secs. 1103, 1107.2). According to the NPRM, “[b]ecause the unit of publication option is restricted to works that
1 Although we appreciate this effort to create an alternative means of registering Short EPs, we continue to disagree with the Office’s reliance on a single example in the legislative history of the 1976 Copyright Act to justify its refusal to register collective works with three or fewer individual contributions. See, H.R. Rep. No. 94-1476, at 122 (1976) (stating that “three one-act plays, where relatively few separate elements have been brought together” would not qualify for registration as a collective work); see also Compendium (Third) sec. 312.2 (quoting H.R. Rep. No. 94-1476, at 122). For a work to constitute a collective work, it need only comprise individual works that have been “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101 (definition of compilation) (emphasis added). In applying this standard to Short EPs, the Office seems to have focused on the arrangement prong (arguing that there are a limited number of ways in which to order two, or even three, tracks) to the exclusion of the selection prong. We disagree that there is insufficient arrangement authorship; record labels put considerable effort into the ordering of tracks even on a Short EP. But, even if the Office is unpersuaded that there is sufficient arrangement authorship, it should be persuaded that there is sufficient selection authorship. When creating a Short EP, the artist and/or record label must select from the body of the artist’s sound recordings the two or three that will be grouped together to form the EP, along with any cover art, photos, text and other materials, if any, that will comprise the finished work. That selection should meet the test for a collective work, even where the EP includes only two or three tracks. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (holding originality in selection, coordination or arrangement must only “display some minimal level of creativity” and “[t]here remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), cert. denied, 540 U.S. 983 (2003) (distinguishing between original selection and arrangement, only one of which is required to defeat a plaintiff’s claim of infringement); see also Compendium (Third) sec. 312.2 (citing a number of factors the Office may consider, including, among others, whether “the selection, coordination, and/or arrangement [was] made from a large or diverse pool of material or data”).
2 were first published in a physical unit, this option is not available for works first published, or published solely, on a digital album . . . .” NPRM at 22764.2
We commend the Office for offering a solution to these problems. In its current form, the GRAM proposal offers an attractive option for record labels and other sound recording copyright owners to register Short EPs using a single registration form and paying a single registration fee. However, the GRAM option would be far more useful to the Commenters’ members if the changes described below were adopted by the Office so that our members could use the GRAM option for more than just Short EPs. The two most important of our proposed changes would allow the full album, as a collective work, to be included as one of the individual works listed in the GRAM application (and covered by the resulting GRAM registration) and replace the definition of album along the lines suggested below.
Recommended Changes to the GRAM Proposal Below we have divided our recommendations into two groups, the first of which are those of greatest importance to us. 1. Key Recommendations
a. Collective Work Authorship. According to the NPRM, if a copyright owner wishes to “register the authorship involved in selecting and arranging the works, the applicant must separately register the album as a collective work or compilation.” NPRM at 22765. Rather than requiring a separate application and separate fee to register the collective work, we urge the Office to permit copyright owners to include the full album as a collective work as one of the individual works that can be registered using the GRAM option. This would make it more akin to the unit of publication option, which expressly permits a collective work to be included as one component of the unit of publication. See NPRM at 22764 (“This registration accommodation has long-allowed one application to not only extend to any collective work that is included within the unit (e.g., a compilation of sound recordings), but also the cover art, liner notes, and any other separately fixed work contained in the unit and owned by the same claimant.”) (emphasis added). It is not clear why the proposed GRAM option does not do so, nor why it could not offer the same type of coverage.
Other group registration options encompass both individual works and collective works. For example, the existing group registration option for serials expressly permits the applicant to include both the collective work and the underlying contributions to that collective work in one application. According to Section 1109.2 of the Compendium (Third):
2 The Office’s refusal to extend the unit of publication registration option to digital bundles ignores the fact that even full-length albums and EPs that are released in digital-only form are marketed under a single UPC and single internal catalog number -- making clear that they constitute one bundled product. The policy poses a particular problem for Short EPs which, unlike full-length albums (which are still commonly released in both physical and digital form), are released primarily in digital form.
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Both forms of authorship [i.e., the compilation authorship in creating the serial and the authorship in the separate and independent works included within the serial] may be registered using the group registration option for serials, provided that (i) the contributions and the collective work as a whole were created by the author named in the application, and (ii) the author and the claimant are the same (i.e., the author owns the copyright in that material).
We see no reason why sound recordings and albums (which are generally registered as collective works, see NPRM at 22763) should not be accorded the same treatment. If copyright owners that wish to obtain a collective work registration for an album (in addition to a GRAM registration) are required to file a separate application and pay a separate fee to do so, they will likely choose either the GRAM option or the collective work option, not both, significantly limiting the usefulness of the new GRAM option to them. Moreover, where a copyright owner does, for whatever reason, choose to register an album both as a collective work and using the GRAM option, the resultant duplicative registrations are likely to cause confusion for users of the Office’s database. Filing two applications in lieu of one will also create unnecessary extra work for registration specialists, at a time when they are under significant pressure to reduce registration pendency times.
b. Definition of album. We object to the way the key term “album” is defined in the regulations and how it is described in the NPRM. Both appear to be tied to physical distribution and to an ownership model. See NPRM at 22764 (referring to “an album that can only be purchased in its entirety”; and “an album uploaded to a digital music service that is offered . . . both its entirety and as individual songs that may also be individually downloaded without purchasing the album as a whole”). Although the definition in proposed section 202.4(k)(1)(i) does not itself include either of these phrases, it defines an “album” as: “a single physical or electronic unit of distribution containing at least two musical works and/or sound recordings embodied in a phonorecord, including any associated literary, pictorial, or graphic works distributed with the unit.” NPRM at 22767 (emphasis added). In a streaming universe, where users can opt to access either individual tracks or an entire album, the single unit of distribution concept strikes us anachronistic. It is not only possible, but likely, that in the not-too-distant future albums will be released as a collection of tracks (e.g., a playlist of new tracks released by the artist or record label all at once), not as a single electronic unit of distribution.
Because access models are rapidly replacing ownership models in the music space, see, e.g., Janko Roettgers, Apple May Finally Shutter iTunes, But the iTunes Era Ended Long Ago, VARIETY (June 1, 2019, 10:26 AM), https://variety.com/2019/digital/news/apple-shutting-down- itunes-era-1203230851/, it makes little sense to promulgate new regulations today that are tied to yesterday’s business models. To future-proof the new GRAM, we propose that the term “album” be eliminated -- in the title of the new rule, in the acronym, and as the key defining term. In its place we suggest using the more format-neutral term “release,” with the following definition: “a collection of two or more sound recordings or other media that are grouped together as those terms are used in the Copyright Act. The term “release” is used here as a term of art and is not meant to suggest one way or the other whether the sound recordings or other media included in
4 the group are published or unpublished, as those terms are used in the Copyright Act.”3 Not only would this approach avoid the single unit of distribution concept, but it is also generic enough to embrace new release formats, such as a playlist that contains all new recordings released by a single artist and grouped together for commerce. For example, Drake released “More Life” in 2017 as a 22-track playlist. See Spencer Kornhaber, More Life Is Another Smart Career Swerve for Drake, THE ATLANTIC (Mar. 20, 2017), https://www.theatlantic.com/entertainment/archive/2017/03/drake-more-life-playlist-versus- album/520158/. To the extent that the Office agrees with this concept but has other ideas for improving the definition, we would be happy to comment on any alternatives developed by the Office.
c. Twenty-track limit. As currently formulated, GRAM is only available for albums (or, in the parlance suggested above, releases) with up to 20 tracks. The Office acknowledges in the NPRM that some albums, such as double albums, contain more than 20 tracks but “believes that this number [i.e., 20 tracks] will make this option available to the majority of albums actually sold in the market.” NPRM at 22765. In a digital-only universe, there is no physical object that places a space limitation on the number of tracks that can be included as part of an album (or release). We disagree with the decision to set this number so low, particularly when the requirement that all works in the group be released as part of an album (or release) already limits the universe of tracks that are eligible for inclusion on a GRAM application. Moreover, because the Standard Application form does not contain a limit on the number of titles that can be listed, eliminating the numerical limit or raising it to a number high enough to include virtually all GRAM applications will lead to less confusion on the part of those completing the Standard Application and less work for the registration specialists who are required to address any such confusion.
In contrast to GRAM, virtually all other group registration options have much higher numerical limits or, in some cases, no limits at all.4 We see no reason to impose more stringent limits on the number of sound recordings and/or musical works that can be registered as part of a group, which would serve only to limit the usefulness of a new group registration option that is intended to facilitate more registrations. The fact that the NPRM permits an applicant to file multiple GRAM applications covering one longer album (or release) is not a satisfactory response. Not only would filing two applications drive up the cost, thus obviating the financial
3 The first sentence of the definition is drawn from the specification and handbook for the Global Release Identifier (GRid), a numerical identifier administered by IFPI that can be used to identify a single, an EP or an album. The specification and handbook are available at https://www.ifpi.org/GRid.php. Because distribution methods are continuously evolving, we suggest the Office consult the GRid handbook from time to time and modify the definition of release as needed to keep pace with changes in the industry. 4 The group registration option for serials has a lower limit of two but no upper limit, see Compendium (Third) sec. 1109.2 (“but otherwise there is no limit on the number of issues that may be included within each group”); there is similarly no limit on the number of contributions to periodicals that can be registered using a single group registration application, see Compendium (Third), sec. 115.8(B) (“[c]urrently there is no limit on the total number of contributions that may be submitted . . .”); there are also no stated numerical limits for registering groups of newspapers and/or newsletters, although the works included in each such group must have been published within certain date parameters (e.g., one calendar month, one calendar year), see Compendium (Third), sec. 1118; for photographs the limit is 750 photographs if the applicant submits Form GR/PPh/CON and no limit on the number of photographs that may be included if the applicant does not use that form, see Compendium (Third), sec..1119.
5 incentive to use GRAM, it would confuse the public record and the members of the public who search the public record if a single album (or release) were assigned multiple registration numbers. Finally, to the extent that the Office is confident that the 20-track limit excludes only a minority of albums (or releases), see NPRM at 22765, there is little need or utility in setting such a limit.
Our strong preference is to have the numerical limit eliminated altogether. If that is not feasible, for whatever reason, we suggest that the numerical limit be set no lower than 50. Or, to the extent that the numerical limit exists mainly to ensure that only so many individual works can be registered for a single fee, we would be open to a fee structure whereby some baseline number of tracks (e.g., 20) can be included as part of the basic group registration fee and additional tracks can be included in the same GRAM application for an additional surcharge (e.g., $1- $2 per track for each additional track).
c. Title of Work. According to the NPRM, the “title of the group as a whole will be used to identify the registration in the online public record. This title . . . should begin with the term ‘GRAM’ . . . The group title may include any additional words that reasonably identify the group as a whole, such as the author’s name(s), the album title, the type of works, or the number of works in the group, as in ‘GRAM songs by Antwan Patton & André Benjamin,’ ‘GRAM five songs from The Dungeon Album,’ ‘GRAM songs, sound recordings, and cover artwork from the album Scorpricorn. [sic]. NPRM at 22766. We are aware that the actual album title is to be provided in the field marked “Title of Larger Work.” Nevertheless, to the extent that the group title, which begins with the word GRAM, will be used exclusively “to identify the registration in the online public record,” that will be extremely confusing to anyone conducting a search for the album (or release) in the public record. Among other things, a search for the keyword, “GRAM” could return thousands of results, depending on how widely used this new option is, through which the searcher would have to sort. It will also be confusing in the litigation context if the title on the registration certificate does not match the title on the product as released to the public. To the extent that this requirement is a function of using an existing application form, this problem could be resolved by creating a new application as suggested in Section 2(c) below.
Indeed, in the first example above, the title of the album does not even appear as part of the group title. We offer a couple of proposed solutions to this problem. First, the single word “GRAM” could appear in the “title of the group as a whole” field to make clear that the album (or release) was registered using the GRAM option, while the title of the album would appear in the Title of Larger Work field and be used to search for the album (or release) at issue. Alternatively, the title of the group as a whole could consist of the actual name of the album followed by “- GR” or something to that effect. That way, the reference to GRAM would come at the end, not the beginning, of the group title and the group title would be consistent with the album title. The least preferred option would be to follow the proposed naming conventions but ensure that the field marked “Title of Larger Work” is full-text searchable.
d. Same Publication Date for All Works. The NPRM is ambiguous with respect to whether albums (or releases) with earlier-released tracks can be registered using GRAM. The text of the NPRM seems to suggest that earlier-released and/or earlier-registered tracks can be included in a GRAM application provided they are disclaimed or excluded from the resulting
6 registration. See NPRM at 22766. We have no objection to that approach to earlier-released and/or earlier-registered tracks. Indeed, that is how earlier-released and/or earlier-registered tracks are currently treated when registering an album as a collective work and it also corresponds with the fields on the existing Standard Application form. Applying a rule that is in conflict with the layout of the Standard Application form that applicants will be required to use is likely to cause significant confusion.
Our primary concern is that Section 202.4(k)(1)(v) of the proposed regulations states that “[a]ll of the works must be first published on the same album and on the same date.” NPRM at 22768. It does not make any provision for listing but “excluding” earlier-released and/or earlier- registered tracks. We assume that is a drafting oversight and request that it be amended to expressly permit earlier-released and/or earlier-registered tracks to be listed and “excluded” both in the application and on the registration certificate. Any other approach to such tracks would confuse the public record and cause users of the Office’s registration database to be confused regarding the full contents of an album registered using the GRAM option.
To the extent that the regulatory language cited above is meant to totally exclude certain albums (or releases) from eligibility for a GRAM registration, that would concern us. That approach would be at odds with the way today’s music industry works. Today, it is common practice for artists to release multiple singles, one at a time, or as part of an EP, which tracks are later bundled together with additional, previously unreleased tracks, all of which are then released as an album (or release). If the regulations are meant to disqualify entire albums (or releases) from eligibility for a GRAM registration under such circumstances, the usefulness of the GRAM option for record labels would be extremely limited.
2. Additional Recommendations.
a. Deposit Requirement. Section 202.4(k)(3) of the proposed regulations requires the applicant to submit for deposit two physical phonorecords if a recording is published in physical and digital form. NPRM at 22768. Digital deposits are permitted only if the album (or release) is distributed solely in a digital format. Because digital copies are much easier and less expensive for record labels to provide than physical ones, we request that when the works are available in both physical and digital form the applicant be permitted to select whether to submit a physical or digital deposit. We would propose a digital-only deposit rule but continue to have many of the security concerns that were raised in our comments In the Matter of Mandatory Deposit of Electronic Books and Sound Recordings Available Only Online, Docket No 2016-3, filed on August 18, 2016. By leaving the form of deposit to the applicant’s discretion, applicants can each weigh for themselves the convenience of filing digital deposit copies versus the associated security risks.
b. Documentation That All Tracks Were on Same Album. Section 202.4(k)(3)(iii) of the proposed regulations states that applicants will be required to provide documentation that each sound recording in the group was included on the relevant album (or release), but the NPRM does not include the requirements for such documentation. NPRM at 22767. Rather, it states that the requirements will be provided at some future time on the Office’s website, circulars and/or the Compendium. Id. Although the examples given in the NPRM (e.g., a
7 screenshot from a DSP where the album is found or a photo of the liner notes, id.), sound reasonable enough, it would streamline the application process if applicants were simply required to include a sworn statement saying as much. There would be little point in an applicant filing a GRAM application that was unable to withstand scrutiny in litigation or that failed to qualify for the Section 401(c) presumption of validity (i.e., because the application includes false statements). See 17 U.S.C. § 410(c). In the event the Office is unwilling to embrace the sworn statement approach, we would appreciate the opportunity to comment on any documentation requirements the Office intends to announce before they are finalized.
c. New Application Form Needed. We are concerned that users will be confused when applying for a GRAM registration using the existing Standard Application form instead of a dedicated, new application form. We understand the Office’s desire to stop devoting resources to an outdated registration system, but, unless the next generation registration system will be released imminently, we encourage the Office to create a dedicated GRAM application that runs on the existing system. Not only will this encourage use of GRAM by smaller, less sophisticated, less frequent users, it will lead to fewer telephone inquiries from copyright owners and will require less correspondence from registration specialists, both of which will save the Office time and money. Also, to the extent the titling problem addressed in Section 1(c) above is caused, in whole or in part, by the lack of a dedicated GRAM application form, a new form would solve that problem, too.
In the alternative, to avoid user errors when completing the Standard Application, we recommend that: (1) the Standard Application form be accompanied by detailed, step-by-step instructions, with specific examples, explaining precisely how users of the GRAM option should complete each field on the form; and (2) when users make mistakes, as they inevitably will, they should be given at least one opportunity to correspond with a registration specialist about their errors before their application can be terminated for inaccuracies.
d. Future Changes to the Rules.
i. No changes to pricing structure. By permitting a copyright owner to register the contents of a single album (or release) with one application and one filing fee, the Office is giving copyright owners a financial incentive to register more of their works. This financial incentive would be less meaningful if the Office were to change the pricing when it implements its next generation copyright registration system, as the NPRM indicates that it might. See NPRM at 22767 (“should processing times for this group option significantly outstrip the overall average processing time for Standard Applications, the Office may consider an adjustment to the number of works or complexity of claims permitted in this group to minimize subsidization.”).5
ii. No change to the number of works or complexity of claims. The value of the group registration option would also be lessened if, as the NPRM states, the Office were to adjust downward the number of works that can be included in one GRAM application or limit the complexity of claims able to be registered using the GRAM
5 Commenters will each be filing independent comments on the Supplemental NPRM regarding Copyright Office Fees that was published on June 21, 2019 at 84 Fed. Reg. 29135. 8
option. NPRM at 22765 (“If the average number of works proves to be closer to twenty, or if these claims increase overall processing times, the Office may need to revisit the proposed limit, or its associated fee.”). As noted above, we believe the Office should increase, not decrease, the number of works that can be registered using the GRAM option. If the GRAM creates workload or workflow problems for the Office, we suggest that it adjust its staffing or seek funding for additional positions to accommodate the workload issues rather than reducing the GRAM numerical limits or increasing the fee.
iii. No limit on the amount of associated material. In addition, the GRAM option would be less useful if the Office were to impose a numerical limit on the amount of associated material that may be included in each claim, if literary, pictorial or graphic works are too numerous, as the NPRM indicates that it might. See NPRM at 22765 (If the Office’s assumptions regarding associated literary, pictorial or graphic works “prove to be incorrect, the Office may revisit this issue and impose a numerical limit on the amount of associated material that may be included in each claim.”). To the extent that GRAM is intended to replicate the convenience of the unit of publication registration option, there are no limits on the quantity of associated material that can be registered under that option; the same should be true here.
Conclusion We appreciate the effort that went into formulating this new registration option. We urge the Office to allow users of the GRAM option to include the album itself, as a collective work, to be included as one of the works covered by the GRAM registration. In addition, we urge the Office to modify the proposed definition of album along the lines we propose above to ensure that this registration option remains relevant even as business models change. We encourage the Office to implement our other recommendations as well. We stand ready to assist the Office with the further development of the GRAM option.
Dated: July 19, 2019
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Respectfully submitted,
Richard James Burgess, Ph.D. CEO A2IM (The American Association of Independent Music) 132 Delancey Street 2nd Floor New York, NY 10002 (v) 646-588-0433 [email protected]
Susan B. Chertkof Senior Vice President, Legal and Regulatory Affairs Recording Industry Association of America, Inc. 1025 F Street, N.W. 10th Floor Washington, D.C. 20004 (v) 202-775-0101 (f) 202-775-7253 [email protected]
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