ASCAP Testimony . . .
Stock Asylum Staff Report
March 29, 2006
(Editors
note: Following is written testimony presented to the U.S House of Representatives'
Judiciary Committee, Subcommittee on Courts, the Internet, and Intellectual
Property about proposed orphan works legislation by the American Society
of Composers, Authors and Publishers. The testimony here is reproduced
without footnotes.)
Before the Subcommittee on Courts, the Internet, and Intellectual Property
Committee on the Judiciary
United States House of Representatives
COMMENTS OF
THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS
ON THE
“REPORT ON ORPHAN WORKS” BY THE COPYRIGHT OFFICE
March 17, 2006
The American Society of Composers, Authors and Publishers (“ASCAP”)
thanks the Subcommittee for the opportunity to comment on the Report
on Orphan Works by the Copyright Office and the legislative proposals
suggested by the Report. Introduction
We commend the Copyright Office for its diligent and thorough work in examining the “orphan works” issue, and the Subcommittee for its timely hearing on the Report.
It
is important at the outset to recognize a distinctive feature of the
orphan works issue. Unlike many other copyright issues, the extent of
any problem here varies widely depending on the type of copyrighted
work involved. As was noted at the March 8 hearing, the very existence
of orphan works varies by copyright “sector.” In simple
illustrative terms, while it may be necessary to address the issue for
graphic works, that necessity is not present when addressing the issue
for music—this because of the different ways in which the artistic
and commercial communities dealing with these different types of works
have developed and operate. Therefore, as we detail further below, any
legislation addressing the issue must be flexible enough to account
for the differences in copyright sectors.
The Report includes proposed legislative language, which, as drafted,
would affect all types of copyrighted works. For our purposes, however,
we limit our comments to the impact of the proposed legislation on musical
works, which are written and owned by ASCAP’s more than 230,000
songwriter and music publisher members, and on the nondramatic public
performances of these works that ASCAP licenses.
The Need for Legislation
We do not actively seek the enactment of orphan works legislation because, in ASCAP’s experience, there is no substantial orphan works problem with regard to musical works or their nondramatic public performance.
When the clearance of nondramatic public performance rights is involved, very few, if any, musical works can be considered “orphaned.” ASCAP’s repertory contains millions of musical works, and licenses from ASCAP and the other United States performing rights organizations (“PROs”) cover nondramatic public performance rights in, for all intents and purposes, every copyrighted musical work. ASCAP (like the other PROs) issues a bulk, collective license, which give access to the entire repertory for one fee, and importantly, does not require music users to contact individual copyright proprietors for permissions. A music user who holds licenses from ASCAP, BMI, and SESAC is certain to have cleared the nondramatic public performance rights to virtually all copyrighted musical works, without needing to locate or identify the authors or copyright proprietors.
Moreover, music users face relatively few difficulties in obtaining clearance information from us. The PROs maintain extensive databases of information about the musical works in their respective repertories, which creators and music users can freely access at any time and without charge to determine where to obtain rights and clearances.
ASCAP,
for example, offers such information through its ACE database, located
at http://www.ascap.com/ace. ACE contains all musical works in the ASCAP
repertory that have appeared in any of ASCAP’s domestic performance
surveys since January 1, 1978, and all works
registered with ASCAP since January 1, 1991, whether surveyed or not.
It also includes copyrighted arrangements of public domain works and
foreign compositions licensed by ASCAP in the United States. For each
title, ACE maintains records of the identity of the ASCAP songwriters,
including co-writers who are either affiliated with other PROs or not
affiliated with any organization; the names, contact persons, addresses,
and phone numbers of publishers or administrators of the works; and
even the names of some of the performers who have made commercial recordings
of the works. If a title or information is not available on ACE, music
users can contact ASCAP’s Repertory Clearance staff by telephone,
e-mail, or traditional mail for additional information and assistance.1
Each year, ASCAP processes thousands of such requests, and in the overwhelming
majority of cases, ASCAP is able to provide the information sought.
ASCAP is also continually innovating and enhancing its information database.
For example, ASCAP members recently gained the ability to register and
update information about their works online—further ensuring that
the database remains reliable and up-to-date. Together, the musical
works databases of the PROs and other music organizations are an invaluable
resource that provide useful ownership information on virtually all
copyrighted musical works.
Despite these reservations, we welcome certain aspects of the drafted
legislation. For one, ASCAP commends the Copyright Office and the drafters
for properly defining an orphan work as a work whose copyright owner
cannot be located, rather than one whose owner does not respond to requests
for permission. (Orphan Works Report at 97.) We also agree with rejection
of onerous new formalities, which Congress has deliberately reduced
and eliminated as a precondition for copyright protection over the last
decades, and which our nation’s international obligations (through
the Berne Convention and the TRIPs Agreement) proscribe. (Id. at 104-05.)
Finally, the orphan works bill rightly refuses to divest copyright owners
of all their rights as a consequence of a work becoming orphaned.
Though well-intentioned, these positive aspects do not outweigh ASCAP’s belief that orphan works legislation is unnecessary with regard to musical works and their nondramatic public performance.
Safeguards for Writers and Publishers of Musical Works
Given the lack of a substantial problem in connection with musical works and their nondramatic performance, it is essential that any orphan works legislation not unfairly prejudice the rights of composers, lyricists, and music publishers. To this end, ASCAP recommends that, if the draft legislation is to be introduced, Congress clarify it in two respects.
1. Reasonably Diligent Search
As
drafted, the proposed legislation fails to define what constitutes a
“reasonably diligent search.” We believe the legislation—or
at least the legislative history—should include some practical
examples, or at least order the promulgation of regulations concerning
the definition of a reasonably diligent search. To that end, a “reasonably
diligent search” by a user of musical works must include a search
of publicly-available ASCAP resources, as well as those offered by
BMI, SESAC, and other music organizations like HFA. And such a search
should not merely require the use of online resources, but also direct
inquiry of the organizations if the online inquiry is unavailing. As
explained above, ASCAP and these entities maintain and provide a crucial
service for anyone who wants to use musical works—free, readily
accessible, and easily searchable databases and “editing”
services on virtually all copyrighted musical works in existence. These
resources should form the backbone of any reasonable search. The Copyright
Office endorses this approach:
One of the most important factors in determining whether a search was reasonable is the extent to which information about the copyright owner’s identity and location are available in publicly available registries, databases, or other sources.
. . .
[T]here currently exist other non-governmental resources with author and ownership information, which would likely be part of any reasonable search. For example, ASCAP and BMI are two primary resources for information about musical works . . . . [I]t would seem necessary that a reasonable search would include consulting these organizations for information about the work at issue.
(Orphan Works Report at 103.) Consistent with the Copyright Office’s
stance, the draft legislation, or at the very least the legislative
history, should clarify that a work is not orphaned if the user has
not reasonably searched both the online (i.e. ACE database) and offline
records of ASCAP and the other PROs and music organizations.
2. Monetary Relief
In an action against the user of an orphaned musical work for its unauthorized nondramatic public performance, the legislation should clarify that monetary relief be in an amount no less than the music user would have paid for the appropriate licenses. As drafted, the proposed legislation requires that “no award for monetary damages (including actual damages, statutory damages, costs or attorneys’ fees) shall be made [against the user of an orphan work] other than an order requiring the infringer to pay reasonable compensation for the use of the infringed work . . . .” Draft 17 U.S.C. § 514(b)(1)(A) (emphasis added). Under the consent decree that governs ASCAP’s activities, ASCAP already grants music users access to its repertory for reasonable fees. See AFJ2 § IX. By definition, then, music users already benefit from reasonable fees, and their use of orphan works should not occur at a discount.
Conclusion
In its experience, ASCAP does not believe orphan works legislation is necessary for musical works or their nondramatic public performance, and consequently neither supports nor opposes enactment of such legislation. It is crucial, however, that any orphan works legislation provide adequate safeguards to ensure the Copyright Act continues to protect the rights of composers, lyricists, and music publishers.
We stand ready to assist the Subcommittee and the Copyright Office in whatever way we can.
