Copyright Legislation, the NLRB and Legislation in 2018

Music & Politics

Volume 118, No. 2February, 2018

Chris Carroll
Christopher Carroll

Christopher Carroll

On a cold New Year’s Day, Mayor Bill de Blasio stood on the steps of City Hall and began his second term. Two days later, Gov. Cuomo delivered his State of the State address and a new New York City Council was sworn into office, led by newly-elected Speaker Corey Johnson. All mentioned the serious and profound challenges facing this country, from inadequate public transportation and a homelessness crisis, to attacks on New York values by our federal government.

Thus began 2018, the second year of the Trump administration and a year that will pose serious and profound challenges for New Yorkers, musicians and the labor movement.

The NLRB: Trumped!

President Trump’s National Labor Relations Board has already undone much of the progress the labor movement saw during the Obama Administration. During the course of just five days in December, Trump’s NLRB expanded the ability of employers to determine the composition of bargaining units (P.C.C. Structural Inc, 12/15/17), allowed employers to utilize “civility” work rules that, in effect, challenge collective action (Boeing Company, 12/14/17), allowed employers to apply unilateral changes to a contract during negotiations (Raytheon Network Central Systems, 12/15/17), allowed administrative law judges to accept settlements over a charging party’s objections that amount to less than a full remedy (UPMC, 12/11/17), and perhaps most importantly, allowed franchised corporations to more easily avoid employer responsibility for those who work at a franchise (Hy-Brand Industrial Contractors Ltd, 12/14/17).

These decisions share a profoundly important trait in common: they further empower employers over employees and make avoiding employer responsibility increasingly easy and convenient. As Janus v. AFSCME moves through the Supreme Court (see Harvey Mars’ story), the labor movement clearly faces a profoundly difficult future. Musicians who have long experienced the challenges presented by ambiguous or unclear employer/subcontractor relationships will not be able to count on the NLRB to protect them.

Corey Johnson is the newly-elected speaker of the New York City Council, where he represents Council District 8.

CASE, MMA and Fair Play Fair Pay – all signs point toward the DMCA

In a world where content is increasingly available and where technology companies have a financial incentive to provide free access to content, it is nearly impossible for musicians and artists to make a living with recorded music.

The Fair Pay Fair Play Act, a bill championed by Congressman Jerrold Nadler (D-NY) that ensures musicians whose music is performed over the radio receive compensation, has collected 30 co-sponsors and continues to be a priority for Local 802 and the AFM.

The Copyright Alternative Small-Claims Enforcement Act (CASE), introduced by Hakeem Jeffries (D-NY) and endorsed by Local 802, is a creative bill that goes a long way toward providing creators with a mechanism to enforce their copyright protections. By creating a small claims office within the Office of Copyright, CASE could provide an option for creators to protect their copyright without undertaking litigation remedies that cost an average of $350,000 per case This law could hold accountable small and medium sized companies that infringe on copyright.

The Music Modernization Act (MMA), which is similarly inventive, has received support from a diverse range of performers, writers and digital service organizations. Introduced by Congressman Doug Collins (R-GA), the MMA reforms Section 115 and 114 of the U.S. Copyright Act by creating a licensing entity that administers mechanical rights and requires that digital services pay a fee. It also creates a new “willing buyer and willing seller” standard for mechanical royalties, and removes evidence limitations for public performance royalties. This legislation is far from perfect, but is a step in the right direction and has been endorsed by the AFM.

These three bills represent positive steps toward the ultimate goal of amending the Digital Millennium Copyright Act. Copyright holders continue to strive for the removal of safe harbor protections for repeat infringers, as well for amending the notice and takedown process to ensure that individual artists can protect themselves by ending the game of “whack-a-mole” and using technical measures that already exist to identify copyright holders and ensure they receive fair protections.

Though these legislative proposals are encouraging and exciting, they face a steep uphill climb toward passage, made increasingly difficult in the political reality of a hyper-polarized and unpopular Congress and Administration.

Redistricting and the census

Additionally, 2018 will be an vitally important year for what is among the most important issues facing our democracy today: redistricting and gerrymandering.

Congressional voting districts are drawn by state legislators and are based upon census data collected every 10 years by the Census Bureau. Redistricting, a process that takes place in states across the country shortly after the census, is determined by population size. Its politicization is among the principal reasons elections have become polarized in our country, and why moderate Republicans and Democrats who are willing to compromise to pass legislation are an increasingly endangered species in Washington D.C.

Most alarmingly, the Department of Justice has now asked the Census Bureau to add citizenship questions to the census, a development that many fear will suppress participation and trust in the census process and therefore undermine and undercount areas of the country that are typically more diverse and inclusive of immigrant populations.

This will not only impact congressional districting, but it will also impact the allocation of federal funding for public schools, transportation and housing. We must encourage everyone to participate in the census process if we are to ensure it is accurate and reflects our communities. This is among the most important issues facing our democracy today because districting determines who is elected, where they are elected from, and who they represent. Midterm elections are rapidly approaching, and if progressive momentum is to be cultivated during this election cycle, it must be done alongside the prioritization of redistricting congressional districts across the country.

Building upon strength and support in local government

Luckily, musicians in New York are represented by local legislators who are sensitive to the values many musicians hold most dear. It is welcome news that Speaker Corey Johnson, an advocate for the arts and a partner of our union, has been elected to lead the City Council. Under his guidance, as well as with the partnership of Councilmember Jimmy Van Bramer as chair of the Committee on Cultural Affairs, Libraries and International Intergroup Relations, Councilmember Rafael Espinal as chair of the Committee on Consumer Affairs, and our friends and partners across the state and city, our union will have opportunities to advocate for legislation that benefits musicians by expanding performance opportunities, raising the wage floor, and working to ensure all performers can afford to live, work and raise a family in New York City.

Remaining involved in local legislation and politics is essential, as it is our first line of defense for our careers and for our communities. It is with local policy, local legislation and local participation that musicians can ensure that our communities reflect our priorities. Building from that strength, we can move toward to make change nationally.