Hidden Within The TPP: The RIAA's Secret Plan To Screw Musicians Out Of Their Rights

from the but-of-course dept

We’ve written a few times about how the RIAA has been fighting hard to screw over tons of musicians by taking away their “termination rights.” Termination rights are a bit confusing, but the simplest way of thinking about them is that after 35 years, if a copyright holder had assigned the copyright to someone else — such as a record label — the artist can simply take them back. There are a few exceptions to this rule, such as in cases where the work was done under a “work for hire” setup. And while many people think they know what “work for hire” means, it has a very specific meaning that most likely does not apply to the many situations you might think it would. It certainly does not apply to music, in part because at the time the law was rewritten, the RIAA didn’t have anyone in the room to add that into the document (seriously). Now, I tend to think termination rights don’t make much sense, but given that they were a tradeoff for extending copyrights massively, at least it’s some very, very minor push back on companies that exploit artists.

Still, the recording industry, in particular, hates termination rights. In a somewhat infamous case, which we’ve written about a few times before, a Congressional staffer named Mitch Glazier snuck four words into a totally unrelated bill (literally) in the middle of the night — allowing a bill to be passed in 1999 that secretly made sound recordings suddenly qualify as “works made for hire,” allowing the RIAA members (the major labels) to deny termination rights to their artists. The addition of those four little words: “as a sound recording” into the “definitions” part of the completely unrelated bill, basically went unnoticed until after the law was passed — and then suddenly people realized what Glazier had done. There was an outcry from musicians, and Congress actually went back and repealed that section of the law.

Just three months after Glazier put this language into the bill, which everyone admits was suggested to him by the RIAA, he was hired by the RIAA to a job with a half a million dollar salary. He remains at the RIAA to this day, where he’s currently the number two guy.

While musicians spoke up and were able to get this part of the bill repealed, it should be abundantly clear that the RIAA and Glazier in particular have always been anti-artist, and are focused on figuring out ways to help the recording industry screw over musicians even more. While he lost the termination rights battle, Sarah Jeong and Parker Higgins, over at EFF, have noticed that in the leaked version of the TPP’s IP chapter, there appears to be a hidden attack on termination rights.

The section of the TPP labeled QQ.G.9 appears to be a more direct challenge to termination rights.  It says:

Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram: may freely and separately transfer that right by contract; and by virtue of a contract, including contracts of employment underlying the creation of works, performances, and phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right.

The termination right, of course, is a limit on free transfer. As a result, instead of a narrow attack on the termination rights of musicians by reclassifying their works as “works-for-hire,” the text here could eliminate termination rights for everyone. It is an open question whether QQ.G.9 would actually mandate such a significant change in U.S. law, but it is worth noting that the provision specifically targets “phonograms”—legal jargon for sound recordings. Furthermore, an addition proposed by Chile seems to have been designed to mitigate the possibility of broad scale legal changes, leaving us concerned about the ramifications of the current language.

It is, of course, notable that one of the few industry insiders who is listed as an adviser to the USTR on the IP chapter — one of the very small group of people who is both allowed to see the text of the document and to recommend specific language — just happens to… work for the RIAA. Yup. The last person listed in the group of folks on the USTR’s IP advisory committee is Neil Turkeweitz from the RIAA. And of course, doing away with termination rights is of utmost importance to the RIAA right now, because the timing has suddenly become quite relevant. The law went into effect in 1978 — and 35 years after 1978 is… 2013. Termination rights are now due and the RIAA has been freaking out about them.

Would the RIAA slip some language into the TPP to destroy termination rights? It might seem like a conspiracy theory, but after all, they did exactly the same thing in US law 14 years ago, and only had it repealed when artists noticed what they’d done to screw them over.

While the RIAA and MPAA have been strongly supportive of the TPP, perhaps the artists who think that those groups are looking out for their interests should think again about what a terrible deal the TPP would be for their own interests.

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Comments on “Hidden Within The TPP: The RIAA's Secret Plan To Screw Musicians Out Of Their Rights”

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56 Comments
ltlw0lf (profile) says:

Is anyone surprised by this?

Copyright isn’t currently written to help the artist, nor is it written to give artists incentives to work. It may have started out that way, but over the years it has been corrupted to support the legacy industries against independents. When copyright can be used to block the sale of original works by the artist themselves as a hammer to force them to sell through the industry, or used as a pre-emptive strike to silence critics or enforce the industries’ propaganda, it is no longer about the artist. Even the length of copyright is anti-artist (since no artist will care 30 seconds after they are dead how long their copyright still exists for.)

Termination rights shouldn’t be written into the law, as with any other contract, they should be terminated when one party or the other decides to cancel the contract. If one party to the contract fails to live up to their end of the bargain, then the other party should be allowed to back out of the contract. What should be written into the law is the exceptions to the rule…no contract should ever be allowed to take away rights of either party, nor should it place any unreasonable or unconscionable requirement or restriction on either party (like the one-sided ones the RIAA/MPAA currently use, or ones that prevent one party from cancelling the contract without significant penalty if the other side decides to buy the contract and then fails to sell the work or puts it into a vault and makes it “disappear” because they don’t like it.)

crade (profile) says:

Re: Re: Re: Is anyone surprised by this?

Property rights dont transfer, you both have the right to own property, it’s the property itself that transfers when you sell it or whatever. You never have any inherent “right” to any particular piece of property.

In this case, it’s that the law is changing (nullifying) the rights as opposed to using the rights to transfer around the “property”.. It would be akin to passing a law that things you buy only belong to you for 3 years and then legally it belongs to your neighbour (or any other sort of law that actually changes property rights).

That is it would be akin to that if anyone actually truly considered copyright some kind of inherent right like property. Changes to copyright law would probably never, or at least incredibly rarely be considered if that were the case.

Bengie says:

Re: Re: Re: Is anyone surprised by this?

“Rights” cannot be transfers or forfeited. We need to use a different word for what we call “property rights”.

While a technicality, it has a psychological affect. It’s like being in court and repeatedly calling someone a thief before they have been convicted. Judges get mad at you if you do that kind of stuff.

Same thing here. People keep calling it a right, so when others hear it, they assume it is like other rights, when it is not.

Pragmatic says:

Re: Re: Re: Is anyone surprised by this?

As John Fenderson said, copyright is not and never was a property right. It was only ever there to provide the holders with the exclusive right to sell copies of their material for a fixed period, after which it would go to the public domain.

Creative expressions as property is a fiction created in the last thirty years or so by maximalists.

You’re not actually suggesting title deeds for copyright, are you? Don’t be silly. Films and songs are not the same as houses.

That One Guy (profile) says:

Re: Re: Re:2 Is anyone surprised by this?

I imagine those that claim that copyright should be treated as a property right will continue to do so, right until they got taxed over their ‘property’, when suddenly the argument would change to ‘having their cake and eating it too’, where it’s treated as ‘property’ in every legal sense other than taxes(so all of the perks, none of the downsides).

Anonymous Coward says:

Re: Is anyone surprised by this?

Copyright isn’t currently written to help the artist, nor is it written to give artists incentives to work. It may have started out that way,

The history of creation of copyright makes it clear that copyright was intended as a way for publishers to maintain control over books. By creating copyright as a transferable right, they created a right they could purchase from authors as a condition of publishing a book. This was a way of replacing the legal monopoly on publishing books that they had previously held so that the state could control what was published.

LAB (profile) says:

Sadly this is not surprising and , in the U.S., turns on the definition of a work for hire. If a sound recording is a work for hire then it was made for the employer(i.e. record company) and they hold the copyright. Then the termination right doesn’t apply because as opposed to signing over the copyright the artist never had it in the first place. It will be highly litigated in the near future, as was mentioned, as the extensions deadlines are coming up.

Fifty-Six Hope Road Music Ltd. v. UMG Recordings, Inc.

Really digs into this if anyone is interested.

out_of_the_blue says:

SO, take away corporate privileges; de-corporatize the world.

Mike still never says what a general corporatized horror the TPP is, just focuses on small parts that affect his usual enemies. — And like yesterday, or the nut ball with the graphs of relationships in TPP countries, Mike’s writing is SO FAR SHORT of condemning the TPP that looks like support, just wanting it tweaked here and there, and it’s why I don’t trust him. He keeps telling only part of the story: doesn’t worry about Google’s spying, doesn’t condemn the whole of the TPP…

But anyhoo: copyright should be rolled back to before the whatever treaty extended the times, EXCEPT that the inherent copyright without registering is GOOD, harms no one, and I think that bit just made explicit the prior common law.

So — hmm. Question keeps coming back: whether Mike opposes ALL of the TPP, or just particular sections? We don’t KNOW, do we? — IF the latter, then Mike is definitely a corporatist, just angling here to stymy enemies of his, er, friends, — Conspiracy theory, huh? Well, well. Fact is are conspiracies all over, and if Mike doesn’t say he’s against this TPP monster and its corporate sponsors, that’s more evidence than he has against the RIAA.


The Trans-Pacific Partnership treaty is the complete opposite of ‘free trade’ The TPP would strip our constitutional rights, while offering no gains for the majority of Americans. It’s a win for corporations

http://www.theguardian.com/commentisfree/2013/nov/19/trans-pacific-partnership-corporate-usurp-congress


If you advocate taking copyright away from Disney after its long abuse and extension, then FINE! — But don’t at same time empower today’s mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. — Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain.

04:09:25[f-82-7]

ltlw0lf (profile) says:

Re: Re: SO, take away corporate privileges; de-corporatize the world.

Simple solution to copyright – make copyright non-transferable.

Even better solution, scrap copyright altogether.

At the very least, if they want to treat it like property, they have to pay property tax on it like everyone else, at the tune of 1% of the value per year and then use the money generated solely for funding new works and/or managing the public domain through libraries.

John Fenderson (profile) says:

Re: Re: Re: SO, take away corporate privileges; de-corporatize the world.

I actually think that copyright conceptually has a good role to play — but that it’s been distorted beyond all recognition. Society would do better to have no copyright than the copyright laws we have right now, but we would do even better better if we had rational copyright laws.

Anonymous Coward says:

Re: Re: SO, take away corporate privileges; de-corporatize the world.

Simple solution to copyright – make copyright non-transferable.

Then instead of transferring copyright to the publisher via a contract, the creator would be required to contract that they do not offer the work to a different publisher as part of the publication contract. Different language same result.

John Fenderson (profile) says:

Re: Re: Re: SO, take away corporate privileges; de-corporatize the world.

That’s not the same result. There are subtle, but important, differences.

For example, a contract can be voided if either party engages in wrongdoing such as fudging books or not paying proper royalties.

Also, it would eliminate the problem of an artist’s descendents abusing the copyright they inherit in ways that the artist find abhorrent.

Anonymous Coward says:

Re: Re: Re:2 SO, take away corporate privileges; de-corporatize the world.

Civil law is heavily biased in favour of he who has the money. The legal expertise is also on the side of he who has the money. As a result the contracts would still be biased in favour of the publishers, except as now for latter wprks by a savy and popular artist, or one who can afford the lawyers after making a fortune. For most artists there would be no difference, the publisher, when they use one, gains control of the work. Self publishing would remain the way to retain control over their own works. Also, unless copyright dies with the creator, it would still go to the estate, or remain under control of a publisher.
A practical modification to copyright would be a sunset clause that removes it from works that are no longer available as new copies from an authorised, (by the publisher or artist) source. Note, new copies is also qualified as being in the usual format, and at the normal price for the type of work, so that copyright cannot be maintained by a ridiculous expensive version that nobody can afford.

JMT says:

Re: SO, take away corporate privileges; de-corporatize the world.

Apparently the only way Mike can make you happy is if he writes a few paragraphs criticising everything you don’t like, and then puts those paragraphs in every article he posts. Not crazy at all…

Perhaps you should get off your lazy ass and write your own blog instead of complaining that other people aren’t doing enough of your complaining for you.

Gwiz (profile) says:

Re: SO, take away corporate privileges; de-corporatize the world.

But anyhoo: copyright should be rolled back to before the whatever treaty extended the times, EXCEPT that the inherent copyright without registering is GOOD, harms no one…

Wrong, Blue. It harms our society by creating a permission culture. If copyright required registration then we would know exactly which works artists could build off of prior to spending the time and energy, instead of after the fact when they get sued. I personally believe that the extra work needed by an artist to register a copyright is a very small tradeoff for the exclusivity that is gained.

… and I think that bit just made explicit the prior common law.

Except for the fact that copyright isn’t based on common law, which has been pointed out to you ad nauseam.

Anonymous Coward says:

Re: SO, take away corporate privileges; de-corporatize the world.

” Mike still never says what a general corporatized horror the TPP is, just focuses on small parts that affect his usual enemies. “

oh, so a blog dedicated to certain issues is only focusing on the parts of a trade deal relevant to said issues? omg Mike is literally Stalin!

Anonymous Coward says:

and the artists are still stupid enough to think that every time there is a law suit against some member of the public, for doing what all people do and have done since time began, share things in order to enjoy, to improve and benefit everyone, that law suit is done to protect them and their families. perhaps if there is sufficient publicity over this, then the artists will wake up. you will, however, always have the likes of Katy Perry, who appears to be so insanely thick as to fail to realise that she is one of the countless number of artists being stitched up and ripped off by the labels and studios. one day, she and those like her, will see that the people who share are not her enemy, it’s those she keeps making arguments for who are doing the harm. hope it isn’t too late!!

LAB (profile) says:

Re: Re:

“and the artists are still stupid enough to think that every time there is a law suit against some member of the public, for doing what all people do and have done since time began, share things in order to enjoy, to improve and benefit everyone, that law suit is done to protect them and their families.”

stupid artists……..don’t they know that when people get sued for downloading their songs without paying for them the person is just doing what people have done since the beginning of time…….Huh?

Pragmatic says:

Re: Re: Re:

Except when the payouts demanded exceed any actual harm done, or when innocents are targeted. Does the name “Jammie Thomas” ring a bell?

Can we not use the collateral damage argument for this, please? It doesn’t serve a greater good and the artists aren’t the ones who benefit.

I’ve already told you, artists earn more from performing than from royalties anyway. Besides, you have to be hugely popular in the first place for earnings from royalties to amount to much.

Gwiz (profile) says:

Re: Re: Re:

…don’t they know that when people get sued for downloading their songs without paying for them the person is just doing what people have done since the beginning of time…….Huh?

What AC is talking about is the sharing of culture. “Ownership” of music and stories is relatively new concept in human history. Ancient societies passed stories and music freely amongst each other. It’s how new things were learned and histories were passed from generation to generation.

For example, in the Middle Ages we had wandering minstrels:

A minstrel was a medieval European bard who performed songs which lyrics told stories of distant places or of existing or imaginary historical events. Although minstrels created their own tales, often they would memorize and embellish the works of others. (Source)

LAB (profile) says:

Re: Re: Re: Re:

“Ownership” of music and stories is relatively new concept in human history. Ancient societies passed stories and music freely amongst each other.

The Recording process is relatively new. The recording process has forever changed music. A recording transforms song from a mere idea. The performance of that idea is captured as a moment in time unique to that individual and that instills it with worth as a tangible asset. One does not buy a Billy Joel record to hear someone sing one of his songs. One buys a Billy Joel record to hear his infinitely unique voice. One buys Billy Joel’s performance of his song. Any minstrel can sing a Billy Joel song but I would think a Billy Joel fan will tell you it is not quite the same.

Anonymous Coward says:

Re: Re: self publish

The fear the labels have is that their share will shrink in a growing market, as more artists than they could ever manage self publish. At least for digital works, the Internet has removed the bottleneck and filter on publishing that is the labels, and other publishers. That is why publishers wish to control the Internet, as without control over the means of publication they lack the leverage to gain control over copyrighted works.

Not an Electronic Rodent (profile) says:

wait..what?

Just three months after Glazier put this language into the bill, which everyone admits was suggested to him by the RIAA, he was hired by the RIAA to a job with a half a million dollar salary. He remains at the RIAA to this day,

So… if bribery is illegal in sports and, well, every other walk of life, how come it never seems to be illegal when it’s labelled “politics”?
This guy should be in jail not in a job.

Anonymous Coward says:

considering how the artists still think that ‘file sharing’ is ruining them, rather than aiding in the promotion of their music, all i can say to these artists, going by what the RIAA is up to is, ‘fucking good job! serves you right! you are going to get all you deserve!’
had these stupid idiots listened to what they were being told years ago, rather than this continuous ‘the RIAA are on our side. they wont do anything to hurt us’, they would have known what was going to happen. the people, the customers, are the ones that care about artists and about the music. all the RIAA and other labels and studios care about is how to get the maximum profit, pay the least in returns and how to screw the artists for longer!

Anonymous Coward says:

Termination Rights update?

Mike,

Could you do an update on the termination rights issue and progress? Have many of the artists now started to recapture their work or is it all tied up in court?

Have artists begun to release new versions of the work now that they hold the rights?

Your linked article was from 2011, I’ve seen some limited writing on the topic, but nothing that is very recent.

Gwiz (profile) says:

Re: Re:

Google has screwed musicians millions of times more than anyone ever did by refusing to delist sites like the Pirate Bay and making it almost impossible to take down all the blogspots that do nothing but list infringing files.

Just for my own morbid curiosity, if Google went bankrupt tomorrow, who would be the next scapegoat for your failure to monetize your works?

Gwiz (profile) says:

Re: Re: Re:3 Re:

You work for the RIAA. You posting here just demonstrates yet again what a hypocritical douchehat you are.

I think this is actually either Lowery or one of his cohorts really. Probably upset that the viewership on that silly Trichordist site has dropped next to nothing. He, of course, blames everyone else for that too, since it couldn’t possibly be because he cherry-picks facts or commits lies of omission or that he doesn’t allow any dissenting comments into his echo chamber.

JMT says:

Re: Re:

So Mike writes an article that criticises a sneaky plan to allow record labels to screw musicians out of their rights, and you call him names because you don’t like what Google does. Do you realise that you are the one that sounds like a slimy weasel here? You also sound like you support the RIAA’s position here, so it’s pretty hard to believe you have any genuine concern for artists.

Internet Zen Master (profile) says:

Re: Re:

Google has screwed musicians millions of times more than anyone ever did by refusing to delist sites like the Pirate Bay and making it almost impossible to take down all the blogspots that do nothing but list infringing files.

Ignoring the fact that you’re an idiot, if Google doing it’s job as a SEARCH ENGINE (hint: not a filter), is supposedly robbing the artists of their money, then so is Bing, Yahoo, DuckDuckGo, and every other search engine in existence.

Admit it AC, you don’t hate Google, what you really hate is the Internet.

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