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What is the "Sonny Bono Copyright Term
Extension" Law and the "Fairness in
Music Licensing Amendment"?
The bill that was signed into law by the President
on October 27, 1998, consists of two parts: the
much-needed "Sonny Bono Copyright Term Extension
Act," and a few amended provisions from the
objectionable "Fairness in Music Licensing
Act." Copyright Term Extension" extends
the length of copyright in the United States for
all currently copyrighted works by another 20
years, from the current standard of the creator's
"Life + 50" years to "Life + 70"
years for 1978 works, and from 75 to 95 years
for pre-1978 works. It was designed to bring domestic
copyrights into line with those of United States
trading partners in the European Community. The
bill is named for the late Congressman from California,
himself a hit songwriter, and a strong supporter
of Copyright Term Extension
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S. House Minority Leader Richard Gephardt
(D-MO) met with the ASCAP Board over a working
breakfast at the U.S. Capitol. Shown are,
(back row, l-r), ASCAP CEO John LoFrumento,
Board Members Irwin Robinson, Treasurer
Arnold Broido, Jay Morgenstern and Cy Coleman,
and (front row, l-r) ASCAP's Marilyn Bergman,
Gephardt, and ASCAP's Hal David.
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How does the "Fairness in Music Licensing
Amendment" change the copyright law?
Up to now, the U.S. Copyright Law required that
most businesses using radio or TV broadcasts as
a source of music in a public place obtain permission
to use that music from the owners of the copyright.
Of course, ASCAP collects these fees on behalf
of songwriters, composers and music publishers,
and distributes them based on performances. The
new law expands the existing exemption for only
this type of music use for certain kinds of businesses.
What exactly does the new law exempt from licensing
fees?
Businesses that perform music only from licensed
radio, television, cable and satellite sources,
that do not re-transmit beyond their establishments,
and do not charge admission, are exempted as follows:
- All restaurants, bars and grills that are smaller
than 3,750 gross square feet, and all other retail
establishments that are smaller than 2,000 gross
square feet, are exempt from paying license fees
to songwriters, composers and music publishers,
but only for their use of radio and TV music.
- Businesses whose square footage exceeds the
amounts listed also qualify for the exemption
if they use six or fewer speakers with no more
than four speakers in any one room or use audiovisual
equipment consisting of no more than four TV's,
with no more than one TV in each room, and no
TV having a diagonal screen size greater than
55 inches, together with the same speaker restrictions.
Copyright owners can recover penalties from the
business owners if it is determined that their
claims of exemption were frivolous.
What percentage of restaurants will be exempt?
The Congressional Research Service estimates that
more than 70% of restaurants and bars will be
exempt for paying music license fees for radio
and TV music.
Legendary ASCAP songwriters and publishers William
"Smokey" Robinson and Mike Stoller traveled
to Washington, D.C. to let legislators know of
ASCAP's support for the "Copyright Term Extension"
bills and ASCAP's opposition to the "Fairness
in Music Licensing" legislation. Pictured
at the Capitol are (l-r) U.S. Congressman Mike
Forbes (R-NY), Stoller and Robinson. |
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What new provisions have been created for businesses
to challenge license fees?
Business owners can contest the reasonableness
of license fees in a proceeding under ASCAP's
consent decree in the Federal "rate court"
in New York or, under the new bill, in one of
11 other specific locations around the country.
While a rate proceeding is pending, the owner
obtains the right to perform music by paying an
interim fee to the court. The decision as to the
reasonable of the fees is ultimately to be reviewed
by the rate court judge and applies only to that
business owner. An owner is limited to one proceeding
per license agreement. Owners which own more than
six establishments, or are publicly traded cannot
use this procedure. Most significantly, existing
ASCAP music licensing rates are presumed to be
reasonable.
How has the "record store" exemption,
which allows record/CD stores to play music without
a music license, been expanded?
The record store exemption has been expanded to
include retail establishments whose sole purpose
in performing recorded music is to promote not
only the retail sale of the recordings but also
the devices (such as, radios, TV's, CD players)
utilized in the playback of that music.
Who will be affected by passage of this legislation?
Every working songwriter, composer and music publisher
in America regardless of music genre will be affected.
What does this mean financially to songwriters,
composers and publishers.
Without steps to minimize the impact of the "Fairness
in Music Licensing Amendment," there will
be a loss of millions of dollars annually for
music creators and copyright owners, both those
living here across the United States as well as
for international songwriters, composers and music
publishers.
Can you be more precise?
Not until we have had a chance to assess the full
impact of the legislation. Although "Copyright
Term Extension" was effective immediately,
the Music Licensing provisions do not take effect
until 90 days after the bill was signed. It will
be 1999 before we can gauge the bill's impact
and the reaction of our customers.
How do you expect foreign governments and foreign
performing rights organizations to react to the
passage of this bill?
This is an important question. The European Commission
has already filed a formal complaint about the
current exemption for restaurant and retail stores
which use radio and TV music under Section 110(5)
of the U.S. Copyright Law. They consider it both
a violation of at least two different trade treaties:
the Berne Convention and certain provisions of
the TRIPS (trade) Agreement. We expect that they
will expand this complaint to include the wider
exemptions under this new legislation.
How will you fight this legislation? Where?
ASCAP is now evaluating every option to reverse
the effects of this unfair music licensing legislation.
A critical element of our plan will be to aggressively
license those eligible establishments that have
withheld royalty payment and to promote the value
of live and mechanical music to a large number
of newly targeted establishments. The backbone
of this effort is ASCAP's exciting new Customer
(formerly known as Licensee) Support Program.
Its objective is to change the licensing dialogue
with ASCAP's customers through business building
and cost-saving benefits. For the first time in
performing rights licensing history, ASCAP will
be providing its customers with more than great
ASCAP music. All ASCAP customers, restaurants,
bars, grills and retailers will receive significant
discounts on important items to make their lives
easier, their employees happier and their bottom
line richer.
More information will be shared with you on ASCAP's
plans in the coming months.
What is the good news in the bill?
The good news: Copyright terms have been extended
from "Life + 50" years to "Life
+ 70" years, and from 75 years from original
copyright to 95 years from original copyright
for pre-1978 works. (Essentially, 20 years are
added to all existing Copyright terms in the law).
And more good news - the "Copyright Term
Extension" provisions became effective immediately
with the President's signature October 27, so
no more copyrighted music will fall into the public
domain at the end of 1998.
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