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Is the RIAA Planning Another Attack on Musicians' Rights?

SOURCE: Published: 2013-12-21
By Mike Masnick of Techdirt.  

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 There was an outcry from musicians, and Congress actually went back and repealed that section of the law.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While musicians spoke up and were able to get this part of the bill repealed, it should be abundantly clear that the RIAA and Glazier in particular have always been anti-artist, and are focused on figuring out ways to help the recording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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