The National Music Publishers' Association said it reached agreement with YouTube for the payment of unclaimed royalties for videos using music whose ownership wasn't previously known. The agreement, which takes effect next year, will result in the disbursement of millions in previously unclaimed nonperformance royalties, NMPA said Thursday. The opt-in period for music publishers begins Monday and lasts through Feb. 28, NMPA said. YouTube will provide participating publishers after the opt-in period with a list of songs it previously didn't have ownership information for, NMPA said. Publishers will initially be able to claim royalties during a three-month window on those songs for the period Aug. 1, 2012-Dec. 31, 2015. Royalties undistributed after the claim window will be disbursed based on each publisher's market share and revenue paid for known YouTube usage figures during the same period, NMPA said. Future royalty claims will be calculated based on 12-month YouTube usage periods between Jan. 1, 2016, and Dec. 31, 2019, NMPA said. “It is essential that we work with digital services like YouTube … to fix the challenge of incomplete ownership information to ensure royalties are no longer unmatched and music owners are paid accurately by the platforms that rely on their work,” said NMPA President David Israelite in a news release. “The revenue earned by the music industry on YouTube continues to grow significantly year over year, and we're committed to making sure that publishers are paid for the usage of their works on their platform,” said Tamara Hrivnak, YouTube head-music partnerships, Americas, in the news release.
SiriusXM's recent move to settle Flo & Eddie's lawsuit against the music service in U.S. District Court in Los Angeles “has the potential to solidify the dominant position of big music services … at the expense of new music services, independent and Web-based radio stations, and the listening public,” said Electronic Frontier Foundation Staff Attorney Mitch Stoltz in a blog post. Flo & Eddie, the owners of the Turtles' “Happy Together” and the duo's other music, filed a notice with the court last week saying Sirius agreed to pay at least $25 million to settle the California class-action lawsuit, in which the artists and other artists in the class sought compensation for performances of their pre-1972 recordings. The settlement amount could reach as high as $99 million depending on future outcomes (see 1611290054). EFF was involved with the suits, arguing the potential “pitfalls that could come from creating new state copyright law rights,” Stoltz said. EFF said in its brief to the Florida Supreme Court in that court's review of the on-hold Florida case from the 11th U.S. Circuit Court of Appeals that “judicial creation of a new exclusive right for works that have been publicly performed without restriction for more than 40 years will put Florida at odds with federal policy and that of most other states, complicating the business of digital music delivery. Accommodating the numerous stakeholders and interests involved is a task for the legislature, not the courts.” The legal “landscape is now more uncertain for music services and radio stations who aren’t” Sirius, Stoltz said. “The different states could still reach different answers to the question of whether those services must pay royalties for the performance of pre-1972 recordings.” If any of the courts “decide that state law covers those performances, music services and radio stations will have to begin the complex process of negotiating terms and royalties -- and that process will likely involve more expensive litigation,” Stoltz said. “Sirius XM, meanwhile, has already secured permission to play any pre-1972 recording on its service at predictable royalty rates for years to come, giving it a major advantage over new music services.” Sirius didn't comment.
“It's imperative that we continue pushing to protect” IP rights, said House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., at a news conference about an International Intellectual Property Alliance report that core copyright industries contributed $1.2 trillion to the U.S. gross domestic product during 2015. The report “will help” the House Judiciary Committee in its work on possible legislation for its Copyright Act modernization review, said committee ranking member John Conyers, D-Mich. These are “tangible metrics” of the value of IP to the U.S. economy as House Judiciary considers its next steps on copyright legislation, said House IP Subcommittee Vice Chairman Doug Collins, R-Ga. Major U.S. copyright holders' sales of products to overseas markets increased to almost $177 billion in 2015, from $164 billion in 2014 and almost $155 billion in 2013, IIPA said.
The Copyright Office sought comment Thursday on an NPRM on amendments to its rules on supplementary registration. Most copyright applicants would be required under the amended rules to submit an online application in order to correct or “amplify” the information included in the basic registration application, the CO said in a Federal Register notice. “Paper applications are extremely burdensome for both applicants and the Office,” the CO said. “Increasing demand on the Office’s limited resources causes delays in issuing supplementary registrations, and it prevents specialists from examining other types of claims thereby increasing the overall backlog within the Office.” The filing fee for supplementary applications would rise from $100 to $130 under the proposal, the CO said. The revised section also would update rules on when the CO may decline supplementary registrations and update practices regarding cross-references in the CO’s public record, the office said. The new rule would clarify that the CO may “decline to issue a supplementary registration for a basic registration that covered the first twenty-eight years of the copyright term, because any registration issued before January 1, 1978 has expired by now,” the CO said. “Allowing interested parties to correct or amplify the information in a registration after the initial term expired creates a potential for error, mistake, or even fraud.” Comments on the NPRM are due Jan. 3.
The Department of Commerce's Internet Policy Task Force scheduled a meeting for Dec. 9 to facilitate a “constructive” stakeholder discussion about “ways to promote a more robust and collaborative digital marketplace for copyrighted works,” the IPTF and NTIA said Thursday. The meeting could result in the creation of a multistakeholder process with working groups to “tackle specific issues,” IPTF said. The gathering will “focus on initiatives in this space that relate to standards development, interoperability across digital registries, and cross-industry collaboration, to understand the current state of affairs, identify challenges, and discuss paths forward,” IPTF said. “It will also be an opportunity to explore potential approaches to the future adoption and integration into the online marketplace of relevant emerging technologies, such as blockchain technology and open-source platforms.” The event is to run 8:30 a.m.-4 p.m. at the Patent and Trademark Office's Alexandria, Virginia, headquarters. IPTF issued a white paper in January that recommended Congress pass legislation to amend guidance to courts for determining statutory damages in copyright infringement cases. It supported the Copyright Office's 2013 proposal to establish a small claims copyright court but opposed using legislation to address remixes’ status within the fair-use doctrine and digital transmissions’ place in the existing first-sale doctrine (see 1601280065).
Record labels remained the largest investors in the music industry during 2015, having spent more than $4.5 billion globally for artists and repertoire (A&R) as well as marketing that year, reported the International Federation of the Phonographic Industry (IFPI) and World Independent Network Wednesday. The $4.5 billion that record labels spent on A&R and marketing in 2015 equaled 27 percent of the labels' total revenue for the year, IFPI and WIN said. Companies have sustained their investment in the music industry despite “two decades of revenue decline,” the groups said. Music companies and distributors also invest in developing the digital music market's infrastructure, which now includes 360 digital music services globally, IFP and WIN said. The report “highlights not just record companies’ financial investment in artists, but also the enduring value they bring to artists’ careers,” IFPI Chief Executive Frances Moore and WIN CEO Alison Wenham said in a news release.
Customs and Border Protection ruled a redesign of network switches imported by Arista Networks falls outside of an International Trade Commission limited exclusion order (LEO). The CBP ruled in favor of Arista, which is in litigation with Cisco over patent infringement allegations. The ITC began a formal Tariff Act Section 337 enforcement investigation in October after Cisco filed a complaint that Arista ignored the LEO, which prohibits imports of patent-infringing products (see 1610040060). Based on CBP's highly technical review of the Arista switches and the patents at issue, the agency said "the infringing functionality has been removed and that Arista has carried its burden to establish that the articles in question are not covered by the patents at issue and therefore do not, on this basis, fall within the scope of the LEO." The decision "validates our good-faith efforts to address the ITC’s findings," said Arista General Counsel Marc Taxay in an emailed statement. "We look forward to resuming the importation of our redesigned products.” CBP "issued instructions to the U.S. ports to permit entry of the Company’s redesigned products for consumption and sale in the United States," Arista said in a Nov. 21 SEC filing. This week, Cisco said it remains concerned with redesigned products imported by Arista, noting the first company's CBP complaint said "'the claim of a workaround is a thin veil to cover Arista’s ongoing infringement and convince its customers, many of whom have strongly supported protection of intellectual property rights, that they are buying a product that is non-infringing,'” emailed a spokesman. "The enforcement case continues with an initial ruling expected in June 2017 and the ITC is not bound by the customs decision.”
President-elect Donald Trump’s incoming administration “will have a remarkable opportunity to re-think the policies of several prior administrations” on communications, IP and tech issues given the Trump presidential campaign’s lack of a clear agenda on most tech sector issues, said Tom Sydnor, visiting scholar at the American Enterprise Institute's Center for Internet, Communications and Technology, in a blog post Wednesday. An “aggressive approach” to U.S. cybersecurity “will be essential,” Sydnor said. “Ordinary US citizens who take at least reasonable measures to protect their proprietary and privacy rights should be able to enforce them in practice at least within the US -- with or without the help of their state and federal governments.” The Trump administration’s commitment to end “crony capitalism” should extend to IP rights and other areas of information and communications sector-related policy, Sydnor said. “Focus on ensuring that private property rights -- including IP rights -- remain enforceable and enforced, even on the internet, and consider repealing laws or regulations that attempt to impose one-sided controls on two-sided relationships between businesses that should be expected to settle their differences in the marketplace,” he said. “These two principles, consistently applied, would do much to improve technology law and policy and reduce regulatory arbitrage.”
Former Registers of Copyrights Ralph Oman and Marybeth Peters urged leaders of the House and Senate Judiciary committees Monday to more seriously consider increased autonomy for the Copyright Office, after the ouster last month of Register of Copyrights Maria Pallante. Oman is now a copyright law professor at George Washington University Law School, and Peters is an IP adviser with Muncy Geissler. Librarian of Congress Carla Hayden removed Pallante as register in October and appointed her to be LOC adviser for digital strategy. Pallante then resigned (see 1610210061 and 1610250062). Hayden's move drew criticism (see 1610240052 and 1611100037). The “unseemly dismissal” may have serious implications “for the future of the American copyright system,” Oman and Peters said in a letter to House Judiciary Chairman Bob Goodlatte, R-Va., and Senate Judiciary Chairman Chuck Grassley, R-Iowa, we obtained. The letter also went to House Judiciary ranking member John Conyers, D-Mich., and outgoing Senate Judiciary ranking member Patrick Leahy, D-Vt. Hayden’s decision to remove Pallante “only compounds our already serious concerns,” the former registers said. “The episode makes us question whether any Register, or the [CO] itself, can continue to serve the public interest under the current institutional framework. And we are concerned that in the current environment, many of the most qualified candidates will not seek the position.” The CO’s role has grown since its founding “and the competing missions and differing priorities of the [Library of Congress] and the [CO] have increasingly emerged as a source of tension,” Oman and Peters said. They said Pallante’s endorsement of the office's independence followed by Hayden’s decision to remove her “created these tensions,” which were “inevitable given the divergent roles of the two organizations.” Ultimately “the choice is stark,” the former registers said. “Does Congress want modernization and independent copyright advice straight and true from the expert agency, or does it want copyright administration and advice filtered through the lens -- and shaped by the perspective -- of the head of the national library?” CO modernization is likely to be a major part of any copyright legislation to emerge in the 115th Congress, and full separation from the LOC is one of several options being considered (see 1512140029, 1603300060 and 1607150022).
The Copyright Royalty Board sought comment Wednesday on an NPRM that would amend the rules for filing documents with the board to allow for the planned launch of CRB's new e-filing system. The CRB said last month the Library of Congress plans to complete work on the e-filing system by spring and would launch the system later in the year. E-filing of CRB documents will eventually become mandatory (see 1610170055). The NPRM would in part establish that CRB filings would be timely only if submitted electronically by 11:59:59 p.m. ET on the due date, CRB said in a Federal Register notice. Filers would need to obtain a password to use the CRB system, with the password constituting a signature, CRB said. The board said it plans to further amend its rules later to reflect the e-filing system in provisions governing filing claims to royalty fees collected under compulsory licenses. Comments on the NPRM are due Dec. 23.