Professor Betsy Rosenblatt quoted in BNA article on music licensing reform

Bloomberg BNA, February 12, 2015 (Subscription required)

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Like some other experts consulted by Bloomberg BNA, Elizabeth Rosenblatt, a law professor at Whittier College, Costa Mesa, Calif., said that the report “reflects some of the gaps inherent in the process by which it was made.”

Specifically, Rosenblatt noted that most of the parties participating in the agency’s notice-and-comment process were from the music industry.

Consequently, “its result naturally mostly considered the interests of established players in the market,” she said. “The suggestions thoughtfully and thoroughly balance those interests, but may leave out the interests of those who are currently outsiders.”

For example, Rosenblatt said in an e-mail message to Bloomberg BNA, moving from compulsory licenses to a market-based mechanism “would most help those with market power (music labels, publishers, well-known artists, existing music delivery services) and not those without, such as unsigned artists and music-delivery startups. In fact, it could make it all the harder for those outsiders to gain a foothold.”

Indeed, one of the recommendations in the Copyright Office’s proposal was that an administrator of interests in a musical work should be allowed to restrict distribution of digital covers. “Making cover versions of existing songs is a time-honored way for less-experienced artists to gain skill and recognition,” Rosenblatt said. “Permitting copyright owners to prevent digital distribution of cover works makes it harder for non-established artists to build their careers and effectively curtails artists’ ability to select what works to cover.”

This would also allow a copyright holder to block distribution of a cover work that he or she considered aesthetically offensive, she said, and would amount to a kind of censorship.

The report again advocated market-based mechanisms for rate-setting, but according to Rosenblatt, this failed to take into account that some channels—especially ones based on newer technologies, such as online streaming—had much different revenue structures and profit margins than traditional distribution channels.

“It may be that startups undertaking legal delivery methods simply can’t afford to pay certain set rates for music because their profit margins are so slim,” she said. “The result will be to favor incumbents and prevent the appearance of new players in the field.”

Rosenblatt summed up her concerns about the perspective of the report saying that “the report very explicitly acknowledges that music consumption methods are rapidly changing, but it doesn’t take into account that music consumption may (or perhaps even should) look as different a decade from now as it does from a decade ago.”

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