Remixes and mashups will not be subject to compulsory licenses anytime soon according to recommendations presented in a white paper released last month by the Department of Commerce (DoC). The white paper is the result of a 2-year study published by the Internet Task Force created to deal with our “Remix Culture.” The remix culture, as Lawrence Lessig states in his book Remix: Making Art and Commerce Thrive in the Hybrid Economy, utilizes multimedia as its language to communicate. It allows the consumer to quote content from various sources to create something from existing content that can be considered “new.” For example, sampling, taking short snippets from different songs to create a new song that can sound completely different from its original sources — a practice widely used in hip hop and electronic music. Remixing and sampling have become vital techniques and art forms in a new-look media landscape.
Under current interpretation of existing copyright law, remixes are considered derivatives of an original work, and derivatives are not subject to compulsory licenses. This means that if you want to sample 5 seconds of a song, you must negotiate with the rights holders, who can ask for any amount of money, or refuse to license at all.
Compare that to simply making a new recording of an existing song, a process governed by compulsory license regulations. These regulations grant the rights to cover a song and delineate the terms of pay between rights holders and the covering artist. Any artist is allowed to cover a song after it has been recorded once, so long as that artist follows the guidelines for compulsory licensing and pays the rights holders the statutory rate.
As Glenn Peoples of Billboard notes, the DoC’s recent white paper finds several reasons not to suggest the enactment of a compulsory license for remixes. The white paper states that compulsory licensing would not cast a wide-enough net. It would only include music and not works in the realm of visual art, user generated video, or pre-1972 recordings. Furthermore, the DoC takes the stance that compulsory licenses for remixes would infringe upon the rights of creators to determine how their works are used.
Though preserving the rights of creators is vitally important, that task must be balanced with the interests of the common good. As Berklee College of Music Professor, George Howard, points out in a blog post, the compulsory license does a good job “…attempting to strike the delicate balance between giving the copyright holder his or her due rights, while still allowing others to create and benefit from their own covered works.” That’s the inherent task of copyright law: to look out not only for creators, but for the common good.
The lack of a compulsory license could effectively limit the creation and distribution of remixes, which may not serve the common good. The current statutory or compulsory license for a song under 5 minutes is $0.091, or 9.1 cents per “copy” sold. If remixes were subject to a compulsory licensing system, they would likely be subject to these statutory rates, making remixes attractive options for major cable providers and large distribution platforms including digitally-managed, location-based jukebox networks.
The DoC suggests a solution in the form of a third-party platform that allows remixers to micro license their work without being limited to specific platforms — Songfile and TuneCore essentially provide this service already.
“That’s the inherent task of copyright law: to look out not only for creators, but for the common good.”
Another factor that might have gone into the Task Force’s decision favoring a compulsory license for remixes could be the high costs of coordinating the distribution of payments to rights holders. As we discussed in a Musonomics podcast and blog post last year, a centralized database of rights holders is crucial if mass licensing is to take place — even under a compulsory license. Such a database does not exist, and its creation would require all stakeholders (majors, independents, publishers and independent musicians) to invest in a standardized metadata input scheme and a sophisticated workflow that could manage and update the database. These things may be in the works, but the sheer size of the task means it will require technical expertise, time and investment to gain adoption throughout the music-making supply chain.
Meanwhile, remixing and sampling remain in a legal area without regulations for per-use rates, inhibiting their distribution and usage. That’s where they will remain until contemporary thinking on copyright can evolve in favor of a new ideological and logical structure on which we can build a more fair industry.
by Alonso Villagomez