Remixes, Mashups Don't Merit a Compulsory License, Says Task Force

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Kygo performs during the 2016 Sundance Film Festival at Park City Live! on Jan. 24, 2016 in Park City, Utah.

A two-year study concludes the marketplace should be left alone to figure out licensing for remixes and small-scale uses.

The music industry isn't any closer to a compulsory right for remixes. A new white paper by the Department of Commerce suggests the marketplace figure out solutions to remixes and user-generated content without the involvement of legislators or regulators.

From the DoC's Internet Task Force, the paper was the result of the two years of study and consultation with stakeholders, and also examined the first-sale doctrine (like selling used books) as it applies to digital goods and statutory damages for file sharers and online services. While the latter is undoubtedly an important topic -- piracy and potential damages for infringement the section on remixes addresses  -- the creation of remixes and user-generated music has profound effects in today's industry.

In short: the marketplace should be left alone to continue its efforts to provide licenses that adequately account for mash-ups, remixes and other uses of music in user-generated content. The term "remix" covers a variety of uses, from mash-ups by amateurs and professionals to the common user-generated videos that "tell a story" by pairing video with a copyrighted recording.

Perhaps most importantly, the Task Force does not suggest the enactment of a compulsory license for remixes. It called a statutory license for derivative works an "unprecedented" step that would not allow creators to decide if and how their works are used and incorporated with other works. A compulsory right would allow a song, for example, to be used in an offensive video despite the objections of the rights owner or artist. The paper notes the Copyright Act uses a compulsory license only "sparingly" and to address the kind a type of market failure not present with remixes.

The right of rejection is critical for creators, musician Steven Tyler and attorney Dina LaPolt wrote after the Task Force's review was announced in 2014. "Artists can, and should, continue to be able to deny a use that they do not agree with," the statement said.

The Task Force found other problems with a compulsory for remixes, too. The compulsory license would only cover music and not other works like visual art or writing, wouldn't cover pre-1972 recordings because they are not covered by federal law, and would require the kind of "universal rights database" the music industry has thus far been unable (or unwilling) to build.

Instead of a compulsory, the market can function just fine, the DoC thinks, by allowing microlicensing for small-scale works while protecting the creator's right to say not to a request. One solution could be the use of third-party, intermediary licensing solutions that wouldn't limit the remixer to a specific platform. As the paper notes, rights holders' participation in YouTube's microlicensing scheme "indicates that a licensing scheme that respects those principles can make many millions of works (including remixes) available to the public while providing licensing income to authors, performers and copyright owners."

Mashups and in-mix samples present a unique challenge. Some services can identify different songs within a long-form DJ mix, for example. But what about detecting a sample within a song that's played at a different tempo and with audio effects? The market is already working on a solution. German company Geo Track ID has built a sophisticated identification technology which can tease out samples within derivative works.

It turned out that few stakeholders advocated either a change to copyright law by adding a compulsory license or some other exception. But the paper notes some participants suggested changes in areas such as DMCA takedown notices, a topic the Task Force had previously studied and outlined in a paper last year.