May 24, 2021
Via Electronic Delivery
Chief Copyright Royalty Judge Jesse M. Feder
Copyright Royalty Judge David R. Strickler
Copyright Royalty Judge Steve Ruwe
US Copyright Royalty Board
101 Independence Ave SE / P.O. Box 70977
Washington, DC 20024-0977
To Your Honors:
Music Creators North American (MCNA) and its numerous organizational supporters noted below wish to express our sincere thanks for the immediate reply to our letter dated May 17, 2021, which we received from the Copyright Royalty Board on May 18, 2021. As stated in our prior letter, we have had deep concerns regarding the proposed physical mechanical royalty rate settlement negotiated between the major record labels and their affiliated major music publishers (and the respective trade groups of each), and your assurances that all interested parties –including non-participating songwriters and composers– will have a chance to be heard on this matter prior to its disposition is very much appreciated.
Indeed, as previously noted, independent music creators and music publishers have not to our knowledge ever been contacted, let alone consulted, about a deal that will be binding on us and will ultimately have profound impact on our livelihoods. Our community of songwriters and composers proudly speaks for itself on such matters, and we very much look forward to presenting our views concerning a “settlement” that in no way could have been negotiated at arm’s length through fair dealing—the process and result that ought to be the goal of all CRB proceedings.
In addition to expressing our appreciation for the opportunity to comment, however, we also write to respectfully seek clarification concerning certain details. Specifically, in its May 18 response, the CRB stated that:
After the parties to the partial settlement file a motion to adopt [the] settlement, the Judges will publish the settlement in the Federal Register for comments by the participants in the proceeding and others who would be bound by the terms of the settlement. We haven’t received that motion yet, but it is due today.
As the CRB is now aware, the parties did in fact file notice with the CRB later that day (May 18, 2021) indicating that the terms of the settlement they had now reached was identical to the terms set forth in their prior “Notice of Settlement in Principle” filed on March 2, 2021 (https://app.crb.gov/document/download/23825).
The parties did not, however, file a motion asking the CRB to adopt the settlement as expected.
We believe that this procedural omission (whether permissible or not) may well be calculated to delay and/or compromise the ability of the independent music creator and music publishing communities to file comments in a timely manner, and could result in irreparable harm to our ability to present our views and pose our questions, for example, if one or more of the settling parties subsequently withdraws from the proceeding. Simply put, we believe the settling parties are seeking to stifle timely discussion and dissent through delay, a strategy which should be rejected as antithetical to due process.
Section 801 (b) (7) of the US Copyright Act provides that the CRB shall have the authority:
(A) To adopt as a basis for statutory terms and rates or as a basis for the distribution of statutory royalty payments, an agreement concerning such matters reached among some or all of the participants in a proceeding at any time during the proceeding, except that—
the Copyright Royalty Judges shall provide to those that would be bound by the terms, rates, or other determination set by any agreement in a proceeding to determine royalty rates an opportunity to comment on the agreement and shall provide to participants in the proceeding under section 803(b)(2) that would be bound by the terms, rates, or other determination set by the agreement an opportunity to comment on the agreement and object to its adoption as a basis for statutory terms and rates; and
the Copyright Royalty Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement, if any participant described in clause (i) objects to the agreement and the Copyright Royalty Judges conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates. (emphasis added)
Pursuant to such authority, we urge the CRB to determine that the filings submitted by the settling parties on May 18, 2021 affirmatively triggered the fairness and transparency provisions of section 801 (b) (7) (a) (i), and that in the interests of equity and of sound economic and legal policy clearly intended by Congress, those “who would be bound by the terms of the settlement” now be permitted to timely file comments approving of, objecting to, or seeking more precise detail concerning the terms. Crucially, the plain language of the statute contemplates that every music creator in the world, living and dead, will be “bound” by the settlement of “participants” if adopted by the Board because the law will then impose the terms of that settlement on all songwriters and composers. Section 801 (b) (7) is designed specifically to timely promote openness, inclusivity and clarity in that process.
We thank you for your continued attention to this issue, which is of crucial importance to the future economic health and survival of the US and global music creator community.
Rick Carnes Ashley Irwin
President, Songwriters Guild of America President, Society of Composers and Lyricists
Officer, Music Creators North America Co-Chair, Music Creators North America
List of Supporting Organizations
Songwriters Guild of America (SGA), https://www.songwritersguild.com/site/index.php
Society of Composers & Lyricists (SCL), https://thescl.com
Alliance for Women Film Composers (AWFC). https://theawfc.com
Songwriters Association of Canada (SAC), http://www.songwriters.ca
Screen Composers Guild of Canada (SCGC), https://screencomposers.ca
Music Answers (M.A.), https://www.musicanswers.org
Music Creators North America (MCNA), https://www.musiccreatorsna.org
cc: Ms. Carla Hayden, US Librarian of Congress
Ms. Shira Perlmutter, US Register of Copyrights
Mr. Alfons Karabuda, President, International Music Council
Mr. Eddie Schwartz, President, MCNA and International Council of Music Creators (CIAM)
The MCNA Board of Directors
The Members of the US Senate and House Sub-Committees on Intellectual Property
Charles J. Sanders, Esq.
Alliance of Latin American Composers & Authors (AlcaMusica) https://www.alcamusica.org
Asia-Pacific Music Creators Alliance (APMA), https://apmaciam.wixsite.com/home/news
European Composers and Songwriters Alliance (ECSA), https://composeralliance.org
Pan-African Composers and Songwriters Alliance (PACSA), http://www.pacsa.org