New Copyright Legislation: What Potential Changes Are in Store?

In a world where technology is constantly changing, it seems only logical that copyright law would shift to accommodate it. There are currently three proposed bills in the House of Representatives and four in the Senate concerning copyrights that have been proposed since May 2013, each making only small-scale alterations to the existing law.

Free Market Royalty Act (H.R. 3219) (http://thomas.loc.gov/cgi-bin/query/z?c113:H.R.3219:)

This is the most recent of the proposed copyright legislation and was introduced by Rep. Melvin L. Watt (D-NC) on September 30. This bill has been referred to the Subcommittee on Courts, Intellectual Property and the Internet and looks to amend Title 17 to “provide copyright owners in sound recordings with the exclusive right to negotiate in the marketplace the performance of their works to the pubic by means of an audio transmission, and for other purposes.” It involves changing the focus from only digital audio recordings to all audio recordings for the purpose of royalty payments, as non-digital transmissions are not covered by the existing law.

This bill authorizes SoundExchange, Inc., a non profit organization, to be solely responsible for royalty payments, including negotiation, paying and receiving payments. Copyright owners would still have the option of negotiating directly for their recordings and not using the agent if they desired to do so.

The current law, 17 U.S.C. §114(e)(2)(B), provides that “entities performing sound recordings…may designate common agents to act on their behalf to obtain license and collect and pay royalty fees: Provided, That each entity performing sound recordings shall determine the royalty rates and material license terms and conditions unilaterally.” Payment under this bill would require that 50% of the royalty payment be paid to the copyright owner, 45% to the featured recording artist(s) and the remaining 5% to nonfeatured artist(s) through the American Federation of Musicians and Screen Actors Guild-American Federation of Television and Radio Artists Intellectual Property Rights Distribution Fund.

While this bill will not likely have a direct effect on the consuming public, it does affect the amount of power that copyright owners have when negotiating for royalties and licensing. If a large number of copyright owners opt for utilizing SoundExchange’s services, it could effectively level the playing field for both small-scale and large-scale owners in terms of negotiation. By limiting the number of agents specializing in this action to one, that is used by a majority of copyright owners, and setting forth a structured royalty fee arrangement, small-scale copyright owners would greatly benefit in the market.

Television Consumer Freedom Act of 2013 (S. 912) (http://thomas.loc.gov/cgi-bin/query/z?c113:S.912:)

Introduced by Sen. John McCain (R-AZ) on May 9, this bill looks to amend the “Communications Act of 1934 to modify the types of programming constituting the minimum contents of basic tier service” and to permit “multi-channel video programming distributors…,except with respect to…basic tier service, to provide subscribers with any channel of video programming on an a la carte basis.” It is currently being considered by the Committee on Commerce, Science and Transportation.

A majority of these bills deal with wireless communications and the “unlocking” of devices so that consumers are allowed to chose their wireless provider. For the most part, they are looking to achieve similar objectives and it will be interesting to see if any one predominates in the coming months.

Unlocking Technology Act of 2013 (H.R. 1892) (http://thomas.loc.gov/cgi-bin/query/z?c113:H.R.1892:)

This bill was introduced on May 8 by Rep. Zoe Lofgren (D-CA) and has since been referred to the Subcommittee on Courts, Intellectual Property and the Internet. This bill seeks to amend the current “prohibition under federal copyright law” and “declares that it shall not be a violation to: (1) circumvent a technological measure if the purpose is to engage in a use that is not an infringement… or (2) use, manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part primarily designed or produced to facilitate non-infringing uses of protected works…”

Unlocking Consumer Choice and Wireless Competition Act (S. 517 and H.R. 1123) (http://thomas.loc.gov/cgi-bin/query/z?c113:S.517: and http://thomas.loc.gov/cgi-bin/query/z?c113:H.R.1123:)

Referred to the Committee on the Judiciary, this bill was introduced by Sen. Patrick Leahy (D-VT) on March 11 and Rep. Bob Goodlatte (R-VA) on March 13. If enacted, it would repeal a “Library of Congress rulemaking determination…regarding the circumvention of technological measures controlling access to copyrighted software on wireless telephone handsets for the purpose of connecting to different wireless telecommunications networks.”

Wireless Device Independence Act of 2013 (S. 467) (http://thomas.loc.gov/cgi-bin/query/z?c113:S.467:)

This bill deals specifically with the Digital Millennium Copyright Act (DMCA) and access to copyrighted material. It was introduced by Sen. Ron Wyden (D-OR) on March 5 and is being considered by the Committee on the Judiciary. In short, it would allow unlocking of mobile devices if “(1) the user legally owns a copy of the computer program, (2) the use of the program is solely for connecting to such wireless telecommunications network, and (3) the access to such network is authorized by the network operator.”

Wireless Consumer Choice Act (S. 481) (http://thomas.loc.gov/cgi-bin/query/z?c113:S.481:)

This bill, introduced by Sen. Amy Klobuchar (D-MN) on March 6, is being considered by the Committee on Commerce, Science and Transportation. The bill “requires the Federal Communications Commission to direct providers of commercial mobile services and commercial mobile data services to permit their subscribers to unlock any type of wireless device used to access such services.” It is not designed to alter existing contracts between providers and subscribers.

For more information:

• http://www.copyright.gov/legislation/
• 17 USC §101, et seq.