NMPA_International_Survey_12th_Edition

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NMPA INTERNATIONAL SURVEY TWELTH EDITION THE YEAR IN REVIEW: NMPA AND THE MUSIC PUBLISHING INDUSTRY infrastructure—the site and facilities—for copyright infringement to take place. The court’s mistaken findings about the defendants’ conduct led to it to conclude on the vicarious infringement claim that the defendants did not have control over the network on which the file-trading took place. According to the court, the defendants did not control anything other than the software, and thus, they had no duty to police the infringing conduct. Despite the adverse ruling as to the liability of these services, the court reaffirmed two important principles. First, the court expressly reaffirmed that making copyrighted musical works available on the services and making copies of those works are violations of the copyright laws. That is, the court recognized that individual users of the services are accountable for their illegal uploading and downloading. Second, the court made clear that the defendants were deriving a financial benefit from this illegal conduct. Indeed, even ruling the way it did, the court acknowledged that the defendants may have intentionally structured their businesses to avoid liability for copyright infringement, while, at the same time, benefiting financially from the illegal conduct occurring on their services. But regrettably, the court did not reach the conclusion that they should be held accountable. NMPA believes that the court’s decision is incorrect under existing law and under the facts established in discovery.The publishers, along with the labels and studios, intend to pursue a prompt appeal of this court’s decision to the Ninth Circuit. RIAA V. VERIZON On June 4,2003,a Federal Court of Appeals denied a motion by Verizon to stay a lower court ruling that had directed the communications company to turn over the names of customers accused of copyright infringement. The original action,brought by RIAA pursuant to the subpoena procedures set forth in the Digital Millennium Copyright Act,is currently on appeal. Verizon announced immediately that it would comply with the lower court’s direction to turn over the names, a significant victory for the copyright community. CARP REFORM On March 25, 2003, House Subcommittee on Courts, the Internet, and Intellectual Property Chairman Smith (R-TX) and ranking Democrat Berman (D-CA) introduced CARP reform legislation (H.R. 1417).The legislation would replace Copyright Arbitration Royalty Panels (“CARPs”) with a single full-time Copyright Royalty Judge appointed by the Librarian of Congress, but whose decisions shall be independent from the Librarian. The bill reflects the comments of NMPA and others before the Subcommittee during the last Congress (Subcommittee hearing, June 20, 2002). There was general agreement at a subsequent hearing among all witnesses that CARPs need to be replaced with a permanent adjudicative entity, as the legislation supports. There is some disagreement, however, regarding the number of Copyright Royalty Judges that are needed—with some witnesses supporting just one Judge and others, such as NMPA, supporting an entity that is comprised of several Judges. NMPA filed comments for the hearing record on April 8,2003 largely supporting the legislation. The Subcommittee hopes to markup the legislation before the Memorial Day Recess, which begins close of business on May 23. COPY PROTECTED COMPACT DISCS Congressmen Boucher (R-VA) and Doolittle (R-CA) introduced legislation, H.R. 107, “The Digital Media Consumers’Rights Act of 2003”,on January 17,2003. The bill mandates that record companies must adequately label copy protected compact discs, identifying the discs as such, as well as identifying any restrictions on playability or further use as a result of the protection technologies. Furthermore, the bill gives additional oversight and enforcement authority to the Federal Trade Commission to ensure that discs are properly labeled. The bill was jointly referred to the House Commerce and Judiciary Committees. ADVANCE NOTICE OF DIGITAL RIGHTS MANAGEMENT SCHEMES On March 24, Senator Ron Wyden introduced the Digital Consumer Right to Know Act (S.692) to mandate that digital content providers and/or distributors provide notice in advance of any technologies that restrict consumers’legitimate uses,including unlawful copying, of digital material. The bill instructs the Federal Trade Commission (FTC) to issue rules that set forth specific disclosure requirements of any digital rights management or interdiction technologies employed on distributed digital content. While not a companion bill to the Boucher bill, it is intended to provide consumers with similar advance warnings about any limitations on use and ability to manipulate the content they are purchasing. BSA opposes the Wyden bill. The bill was referred to the Senate Commerce Committee. There are no cosponsors at this time,nor has any action been planned or promised on this legislation. 36
FAIR USE LEGISLATION On March 4, 2003, Congresswoman Zoe Lofgren (D- CA) reintroduced her fair use legislation—H.R. 1066, Benefit Authors Without Limiting the Advancement or Net Consumer Expectations Act (“BALANCE Act”).This bill is similar to the bill she introduced late in the 107th Congress (H.R. 5522) and was supported by the Digital Media Association. Among other things, the legislation (1) amends the Copyright Act’s fair use provisions to add “analog or digital transmissions” to the means by which a reproduction could be permissible under the fair use doctrine; (2) expands the Copyright Act’s limitation on exclusive rights to provide that it is not an infringement for lawful owners of copywritten digital material to “reproduce, store, adapt, or access”the material for archival purposes for a nonpublic display or performance of the material on a digital media device; (3) amends the Copyright Act’s first sale provision to allow an owner of digital material to sell and/or give away their copies of digital works; and (4) amends the DMCA anti-circumvention provisions to allow consumers to bypass access controls or copyright protection technologies to make copies. We continue to oppose this legislation, and the RIAA and BSA have announced their respective opposition to the bill. DISTANCE EDUCATION ACT The Distance Education Act was enacted by the 107th Congress late in its 2002 legislative session, with the support of NMPA.The new law reflects a narrow and carefully balanced exemption from copyright infringement liability for certain public performances and displays of material on the Internet for use in bona fide class sessions, under the direction of an instructor.As a result of input from NMPA and others, the law does not permit downloads or other distribution of music or other materials for student use. SMALL WEBCASTERS LICENSING ACT In mid-November 2002, both houses of Congress passed the Small Webcasters Licensing Act, introduced following a Copyright Arbitration Royalty Panel (CARP) determination in early 2002 that webcasters are liable for sound recording performance royalty payments pursuant to the section 114 statutory license, and issued a proposed rate. It also ruled that liability is retroactive to October 1998. Webcasters opposed both the proposed rate and the date of liability, while record labels supported them. PAYOLA INQUIRY On January 28,2003,Senator Russ Feingold (D-WI) reintroduced his legislation of last year addressing concerns with anti-competitive practices of radio stations and the use of payola,which is similar to the bill he introduced last year (107th Congress).The bill is largely directed at Clear Channel Communications and concern with its growing use (or perceived use) of anticompetitive practices. On January 30, the Senate Commerce Committee held a hearing on anticompetitive practices in the radio and concert industries at which Senator Feingold and Congressman Berman testified. This hearing largely focused on whether consolidation of radio station ownership—specifically, Clear Channel—is limiting new artist entrants into the market and/or stemming equitable airplay. This hearing was the first in a series of planned hearings by the Commerce Committee on media ownership. ANTI-PIRACY AWARENESS CAMPAIGN In October 2002, NMPA, RIAA, the Motion Picture Association of America (MPAA) and the Songwriters Guild of America (SGA) joined together to launch an anti-Internet-piracy awareness campaign aimed at colleges, and to send out letters to the “Fortune 1,000” U.S. corporations urging them to take whatever steps are necessary to ensure that their networks are not being misused to infringe copyrighted works.The letter noted that piracy of music, movies and other creative works is taking place at a surprisingly large number of companies and pointed out that allowing employees to use corporate networks to illegally distribute copyrighted music and movies is no different from software piracy. PIRACY INQUIRIES The House Subcommittee on Courts,the Internet,and Intellectual Property has held several oversight hearings this year to examine piracy of copyrighted materials: (1) Peer-to-Peer Piracy on University Campuses (February 26); (2) Copyright Piracy Prevention and the Broadcast Flag (March 6); and (3) International Copyright Piracy: Links to Organized Crime and Terrorism (March 13). While none of these hearings has resulted in the introduction of legislation to prevent or prohibit the unauthorized use of copyrighted works, key members of the Subcommittee are creating a strong record that supports our concerns about rampant piracy. In addition, key members appear to align with our interests and have expressed a willingness to actively continue the Subcommittee’s oversight role in this area. NMPA INTERNATIONAL SURVEY TWELTH EDITION THE YEAR IN REVIEW: NMPA AND THE MUSIC PUBLISHING INDUSTRY 37
Page 1: 12th e d i t i o n NATIONAL MUSIC P
Page 4 and 5: Preface The National Music Publishe
Page 6 and 7: Executive Summary This is the NMPA
Page 8 and 9: Following a solid 14% growth in rev
Page 10 and 11: Table 6 Master Survey Data 2001 INT
Page 12 and 13: Table 7 Flat Exchange Rates 2001 IN
Page 14 and 15: Chart 4 22 Other Countries Ireland
Page 16 and 17: REPRODUCTION-BASED INCOME In 2001,
Page 18 and 19: NMPA INTERNATIONAL SURVEY TWELTH ED
Page 20 and 21: International Year in Review:2002 C
Page 26 and 27: LATIN AMERICA NMPA INTERNATIONAL SU
Page 42 and 43: APPENDIX A NMPA INTERNATIONAL SURVE
Page 44 and 45: APPENDIX B International Involvemen
Page 46 and 47: APPENDIX C U.K., JAPAN, GERMANY, FR
Page 48 and 49: APPENDIX C NMPA INTERNATIONAL SURVE
Page 50 and 51: APPENDIX C The Main Organizations o
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Page 58 and 59: APPENDIX C ITALY UPDATE NMPA INTERN
Page 60 and 61: APPENDIX C SPAIN UPDATE NMPA INTERN
Page 62 and 63: APPENDIX D GLOSSARY OF TERMS INTERN
Page 64 and 65: NMPA: A Brief History As technology
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