AEMI Meeting with US Copyright Office

December 1, 2013

Sam Folio  -  former AFM International Secretary-Treasurer

I am pleased to report on a remarkably constructive meeting between the US Copyright Office (USCO) and the Arts, Entertainment, and Media Industries Committee (AEMI) that took place in late October. The meeting not only identified a number of topics for further discussion, but one USCO staffer even ensured that her requests for public comment would now include the impact on collective bargaining.

Attending the meeting, along with myself, were AFM International Vice President and Local 99 (Portland, OR) President Bruce Fife, AFM Legislative-Political Director and Diversity Director Alfonso Pollard, plus Paul Almeida and David Cohen of the Department of Professional Employees (DPE), representatives of the AFL-CIO and other unions, including the Directors Guild of America (DGA), the International Alliance of Theatrical Stage Employees (IATSE), the Office and Professional Employees International Union (OPEIU), and the Screen Actors Guild and the American Federation of Television and Radio Artists (SAG-AFTRA).

The AEMI’s concerns about copyright law were presented in the framework of how they affect members’ jobs, incomes, and benefits. David Cohen explained that residuals and royalties—downstream revenues—sustain the people in our unions between projects.

An AEMI pre-meeting had narrowed a list of possible questions and topics about copyright policy and law to these priorities: the licensing of sound recordings in the digital space and terrestrial radio; digital first sale; orphan works; statutory licenses for cable and satellite retransmission; pre-1972 sound recordings; illegal streaming; and exemptions under the Digital Millennium Copyright Act.

While several unions at the meeting highlighted their own issues, they made it clear that the presentations were issues they all shared. Representing DGA and IATSE, Alec French spoke to orphan works, digital first sale, and felony streaming. For SAG-AFTRA, Duncan Crabtree-Ireland stressed the importance of the Audio-Visual Performances Treaty and the terrestrial performance right. For the AFM, Bruce Fife called for a licensing regime that is fair and equitable
across all platforms.

Register of Copyrights and Director, USCO, Maria Pallante explained that her call for a comprehensive review and updating of copyright policy and law consciously avoided
the term “reform,” which implies that something was wrong and needs reforming. She also stressed that, from her perspective, the copyright conversation had been moving in the wrong direction, namely toward an expectation of unlimited fair use. The outpouring against the PROTECT Intellectual Property Act and the Stop Online Piracy Act indicated, however, that turning around the conversation required reframing it. That necessity brought her to her broad call for a comprehensive updating.

A part of that updating might include collective licensing, on a model yet to be determined, while another part might include carefully chosen and defined exemptions. Pallante noted that, when Congress has defined narrow exemptions, courts are more conservative in invoking fair use. A third part of an updating would be topics that she identified as ripe for action because they have already undergone extensive analysis and discussion: orphan works, a public performance right, and felony streaming. Focusing on enforcement alone, she said, was not productive; witness the pushback on seeking felony penalties for illegal streaming.

Among the open questions Pallante posed were: What is the future of the registration program? What should the USCO do with recordation? What roles should public-private partnerships play?

In response to our raising the Audio-Visual Performances Treaty, USCO Senior Counsel for Policy and International Affairs Maria Strong said that it has become controversial as we seek
implementation. She noted the varied foreign legal and copyright systems and urged us to contact and work with our counterparts in other countries, who could provide local presentations to their governments, with an impact that only local people could achieve.

Pallante and her senior staff noted that our visit provides a useful reminder that worker interests matter and that they are not necessarily aligned with industry views.

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