Now that the Copyright Modernization Act of 2006 has been put aside for this year, it has to be assumed that at least three of the four key copyright bills out there right now -- the Section 115 Reform Act, Orphan Works Act and the PERFORM Act -- are on hiatus. The first two were part of the CMA, and the third had issues that were addressed in CMA. (The audio flag remains a part of the Stevens telecom bill that is awaiting a Senate floor vote; Ted Stevens spoke on that bill last week at a PFF webcast, and you can see that here.)

What is often unspoken is that many of the conflicts occurring right now on copyright modernization with members of Congress, recording labels, music publishers, digital music services, broadcasters, recording artists, songwriters, etc., stem from a common curse -- that of compulsory licensing.

That is why, at the Vegas Music Conference last week, I called for an abolishment of all music compulsory licenses. PFF has published that speech today as a Progress Snapshot ; I encourage you to read it. You may not agree with it, but I think a case can be made that after an initial shock to the system, the market would guide all parties to voluntary licensing regimes that would reduce transaction costs; my former president Ray Gifford pointed out to me that transaction costs are already lower in a digital age. Congress would likely have to include some language ensuring that the intermediaries facilitating these voluntary licensing agreements weren't subject to strict antitrust regulation, but there's solid precedent for that.

Lamar Smith, someone who I respect and believe cares about artists' rights, has taken the high road and decided not to force his colleagues to vote on a bill that likely won't clear Congress this year. He vowed at today's markup to return with diligence next year. His ranking Democrat on the House IP Subcommittee, Howard Berman, vowed to join him, although Berman said he was pleased Smith was willing to wait until he -- Smith -- was the ranking member on the subcommittee.

When we return to this debate in January, perhaps the starting point should be the elimination of compulsory licenses. If that proves successful, we could target licenses in other industries, such as cable and satellite.

posted by Patrick Ross @ 11:14 AM | Legislation and Legislators

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