The proposed legislation concerning revisions to Section 115 of the Copyright Act may in fact turn out to be the landmark internet blanket licensing legislation some claim that it will be. However, many songwriters as well as numerous large independent publishers and copyright administrators should be concerned that the bill currently pending in the House of Representatives is flawed in several significant ways, and requires substantial amendment in order to better protect the interests of music creators and rights owners.
Another problem with centralized corporate power is the inability of the little guy to effectively collect his fair share from the one holding his or her monies (not an uncommon problem throughout the history of the record industry). A songwriter or rights administrator should be able to obtain from the GDA the same usage data and royalty collection information applicable to them that the GDA provides to the music publishers it represents. Songwriters need to be able to verify that the royalty payments they are receiving correlate to the actual royalties earned. In addition, the proposed legislation does not require the distribution of royalties collected by the appointed GDA to the copyright owners by a date certain following receipt of such royalties which is of great concern given that participation by the copyright owner in this system is not voluntary.
Songwriters who are also recording artists should be gravely concerned about the proposed provisions requiring songwriter-recording artists with un-recouped recording artist advances to direct the GDA to divert their entire digital music publishing royalty payments to record labels pursuant to “letters of direction.” This provision also appears to indicate that if a label, prior to June 1, 2006, had not been able to negotiate such a recoupment provision in the recording contract with the songwriter-artist, the statute will now provide the label with such cross-collateralization rights as an unprecedented matter of law. There has been a lot discussion about making provision for non-payment of mechanical royalties on promotional and free goods w hich would break a 97 year statutory requirement that mechanical royalties be paid on all copies distributed, going back to the 1909 Act.
As a matter of basic fairness, if the GDA is going to have the extraordinary power to bind a songwriter who would otherwise object to such representation, as is provided in the proposed legislation, then the songwriter should at least have the right to appoint a representative to that GDA's governing board. Music publishers may own 50-100% of the copyright to a musical work in a significant number of cases, but publishing contracts typically define the royalty stream as 50-75% to the writer, and 25-50% to the publisher. Many songwriters are also co-publishers of their compositions and have merely assigned administration rights to the music publisher. The party with an average of approximately two-thirds of the royalty stream at stake --songwriters-- should reasonably have at least one seat on the GDA Board
The unbridled authority granted under the current bill to a GDA to deduct and spend administrative fees for almost any initiative the GDA wishes has already been labeled "unconscionable" by the U.S. Copyright Office. The current language, for example, would allow the GDA to hold a meeting on "current legislative and litigation issues" at some exotic location anywhere in the world without any restraint on the cost, and charge writers and publishers for this event. Under the current provisions of the bill, songwriters would in essence be paying on average for two-thirds of the GDA’s activities (which could in some extreme circumstances be in conflict with the priorities, rights and interests of creators) without the authority to limit in any way the GDA’s discretionary spending
their respective publishing administrators would be well-advised to
oppose this legislation until some of the foregoing issues are resolved
their favor just as they have long objected to other issues related to
application of controlled composition clauses to music publishing
general. The fight against monopoly control of individual property
is one that should resonate with every fair-minded person. Otherwise,
seem that the giant cellular companies and other digital licensees with
lobbying muscle in
Wallace Collins, Esq is an entertainment lawyer
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