April 2006
Dear Songwriter and Composer:
As BMI continues to face legislative challenges, I wanted to bring you up to date on issues that have a potential impact on you and your creative efforts.
Recently proposed legislation called the “broadcast flag” would give the Federal Communications Commission (FCC) the authority to adopt regulations protecting digital television broadcasts from being “re-distributed” over the Internet without permission. The RIAA is also seeking legislation calling for an “audio flag,” which is similar to the broadcast flag and would protect digitally broadcast music from being copied in certain cases or retransmitted without authorization of the copyright owner. The courts struck down the FCC’s first broadcast flag rules on grounds that the FCC did not have the statutory authority to enact such rules, which has led the MPAA and RIAA to seek legislative authority for the FCC.
As you know, BMI supports anti-piracy technological protections in the digital age where they are needed to protect against theft of content. However, we are also concerned that such technologies may interfere with our ability to use new automated monitoring technology to track the performance of musical works on radio, television and the Internet for royalty distribution purposes. By limiting the redistribution of programming copied from digital broadcasts, flag technologies could potentially interfere with the operation of automated monitoring systems, which in some cases need to transmit unidentified programs over a secure line to a remote location for analysis and storage.
Consequently, BMI has been seeking legislative protection for performing right organizations’ monitoring activities and has been seeking solutions that would allow us to work with protected broadcasts within the context of a closed, proprietary system that is not vulnerable to piracy.
In another development, the U.S. Copyright Office, as part of a bipartisan request of several legislators in 2005, initiated a study on issues surrounding the use of copyrighted works whose owners are difficult or impossible to locate. These have been dubbed “orphan works.” Prior to issuing its report to Congress on January 31, 2006, the Copyright Office conducted public roundtables to get input from parties that might be affected by any changes in the law geared toward these orphan works. Some of the proposals sought to have the copyright law amended so that a user who has tried but failed to find a copyright owner in order to obtain a license could nevertheless legally use the work. Current law requires that licenses to exercise copyright rights must be obtained in advance or the work cannot be used.
In its report on orphan works, the Office proposed amending the Copyright Law to eliminate statutory damages and attorneys fees for infringements of works qualifying for orphan works protection. This report was the focus of a Congressional hearing on March 8, for which BMI submitted a written statement on behalf of its affiliates requesting that if Congress adopts legislation on orphan works, it should include a statement in the Congressional reports addressing the case of a copyrighted musical work for which a license and information is readily available through a copyright licensing organization, such as BMI, ASCAP and the Harry Fox Agency. The current draft statute does not define “reasonable search,” and we are concerned users might avoid using these resources when they perform their searches. Generally speaking, BMI does not believe there will be as many cases of “orphaned” musical works as there will be for other types of copyrighted works, like photographs, graphic arts, film or books.
There are many copyright issues, both here and abroad, that have the potential to affect your livelihood. We are currently monitoring developments in Europe, as the European Commission moves towards significant changes in the way music is licensed in the European Union. We will continue to keep you updated on these matters, both through these letters and on our website, bmi.com, as new information becomes available. I’d like to remind you that bmi.com is a vital resource for monitoring the latest news and information on copyright issues, the constantly evolving digital marketplace and other developments that may impact the livelihood of the creative community. The website also offers a vast array of digital tools that allow you to register new works, update your contact information, review your royalty statements and perform a host of other functions at the push of a button. The website is for you, the BMI songwriter and publisher, and we welcome any feedback you may have to help us better serve you as you continue to provide the music that enriches so many lives across the U.S. and around the world.
I’d like to offer congratulations to your fellow BMI songwriters Gustavo Santaolalla, who earned an Academy Award for his score to Brokeback Mountain, and Jordan Houston, Paul Beauregard and Cedric Coleman, who took home the Oscar for Best Song from the motion picture Hustle and Flow.
Sincerely,
Del Bryant
President
Chief Executive Officer