USPTO meeting on “Developing the Digital Marketplace for Copyrighted Works” Dec. 9, 2016

On Friday December 9, 2016, the Department of Commerce held a meeting at USPTO on “Developing the Digital Marketplace for Copyrighted Works” in order to “facilitate constructive, cross-industry dialogue among stakeholders about ways to promote a more robust and collaborative online marketplace for copyrighted works.” Among the topics for discussion were “the potential for interoperability across digital registries and standards work in this field, and consider the relevant emerging technologies (e.g., blockchain technology, open source platforms). We will also explore potential approaches to guide their adoption and integration into the online marketplace.”

The agenda skewed heavily toward industry, with morning sessions designed around specific technical questions (“Unique Identifiers and Metadata: How is a work unambiguously identified and distinguished from other works; and how are attributes assigned to that work in a consistent manner?” and “Registries and Rights Expression Languages: Once works are identified and described consistently, how is information about rights ownership organized into usable registries, and how is that rights information expressed in a standardized way?”) as well as the commercial (“Marketplaces: How is the information in the registries used to enable commerce?”).

KEI participated in the afternoon roundtable session on “What social/user needs need to be addressed and/or supported to advance the online marketplace for copyrighted works?”, led by Brian Scarpelli of ACT/The App Association, where I raised a few points on KEI’s behalf. My points, briefly, were these:

A conversation about the digital marketplace for copyrighted works that fails to have voices present to speak to what metadata means to artists, or to culture more broadly, is inadequate. The lack of a uniform metadata standard is not simply something to understand in terms of the challenges of licensing by rightsholders, but in terms of the pressure that the absence of such metadata places on the other artists that inhabit the cultural ecosystem and whose livelihoods depend on attribution. By way of illustration, consider that the move from the physical consumption of albums (vinyl, cd’s, cassettes) to mp3s and then to streaming services has frequently meant that liner notes have diminished to the point of vanishing altogether. Spotify and other streaming services, where metadata may begin and end with the question of who performed (or perhaps who composed), fail to provide basic information that had, in other formats, been taken for granted: What musicians performed on the record? What studio was used to record the music? Who mixed it? Who produced it? Who engineered? Who made the album art? Obviously not everyone who is involved in the process may be a professional who depends on being a musician/producer/engineer/studio owner/designer for a living, but many do and depend on other musicians being able to easily identify their contributions.

It is also important to consider this problem from the vantage point of what we are losing more broadly as a culture in not having this information readily available for archivists, scholars, students, and fans. Whole fields of study, and countless books, articles, movies, documentaries and tv shows have been devoted to the history of jazz, blues, and rock and roll, hip hop, and other genres. Knowing where artists crossed path, who they recorded with, and so forth, has been critical to understanding the development of artform, and by extension the growth of vitally important elements of our culture from a historical, sociological and ethnomusicological perspectives, among others. We may not even be able to fully comprehend what we stand to lose by doing an inadequate job right now to ensure that contemporary works, the importance of which may not yet be clear, are well-detailed.

These ideas regarding the importance of robust metadata standards has been a subject of conversation at WIPO in recent months. In April 2016, Anna Vuopola made this statement on behalf of Finland:

I represent the Finnish government at this conference. First of all I would like to warmly thank WIPO for organizing this two-day conference touching upon all most current issues linked to digitilization of the content industry. As we have heard the streaming technology is growing rapidly, for music and audiovisual content especially fast in the developed countries.

I would like to comment on an issue that was raised by the Mr. Lanier, the futurist, as well as virtually all the panelists i.e. Importance of metadata. We (also) believe that developing and taking metadata question to the forefront of the development of the copyright system we will be improving the functionality, transparency and general acceptance of the copyright system. Metadata is important. It relates to the efforts of making the global repertoire database, rightholder information as the assets of CMOs and all the open source initiatives out there to support this issue. Of course this links also to the basic no-formality rule of Berne.

Let me talk about a few concrete examples. For example giving credits to authors. It is clearly stated in Berne that authors have moral rights which includes the right to attribution. However, in practice they are not fulfilled in most streaming services. It’s not unusual that you don’t have anything else on a specific track than the name of the song and the main artist. If we compare to the age of vinyl and cd’s – we just had to look at the back cover to find this out. Now this information does not appear on any of the services except for Deezer and Tidal. Still the copyright rules should be the same.

Online music services justify this practice on the basis that metadata is “missing, erroneous or incomplete”, and that they therefore cannot make the metadata available to the public. It can be hard to hear this claim or take it seriously or ever verify if it is true [as authors are at the same time having to deal with much more sensitive issues – such as money and what should be the fair share of the revenue from streaming for each group or authors and other rightholders]. This is a very important issue and needs requires negotiations between the relevant parties. This is more of a policy than a technical question.

The metadata question is mostly technical but has of course important links to matters of policy and economic interests. However, it is also very relevant for making sure that distribution of whatever amount of royalties flowing from streaming will ever reach the right destination. If we do not know who owns the music we can’t give credits to them or distribute the money to the right recipient. This might be the last chance to correct this issue. Both moral rights and distribution of royalties can be fixed with better metadata.

So – my question is what could we do as a first step? On the national, regional and international level – at wipo perhaps? All stakeholders involved in music. Producers, publishers, authors, collecting societies, digital music services, aggregators? I’d like a comment on that from the panelists.

It could be interesting to see whether this conversation at WIPO could be married to the GRULAC proposal for analysis of copyright related to the digital environment, which contains discussion on digital streaming services in the context of fairer compensation for creators and performers. (See Manon Ress’s statement on the GRULAC proposal, here.)

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