2010-2011 Symposium

Where Do We Go from Here? The Evolution of Entertainment Law and Industry in the New World

September 28, 2010 at Vanderbilt Law School

The 2010-2011 Symposium, “Where Do We Go From Here? The Evolution of Entertainment Law and Industry in the New World,” focused on copyright and the recording industry. Panels addressed the changing business model of the recording industry, collective management organizations, exceptionalism in US copyright law, and international enforcement of copyright under Berne, TRIPS, and the then-proposed ACTA. It was co-sponsored by the Vanderbilt Journal of Entertainment & Technology Law and Leadership Music. A synopsis is available below.

 

Business Models: The Internet has radically altered the business models of the recording industry, away from the sale of “units” and toward merchandising, social sites, downloads and online music library access. This has impacted contracts with songwriters, performers, labels, and major users, including new and emerging intermediaries. Should business models adapt even more to user demands or are those demands unreasonable and should be met with stricter enforcement to enforce existing models legally and by using tougher Technical Protection Measures (TPMs).

  • Moderator: Professor Steven Hetcher, Vanderbilt Law School
  • Panelists: Dean Ray Nimmer, University of Houston Law Center; Cary Sherman, President of the Recording Industry Association of America; David Israelite, President & CEO of the National Music Publishers’ Association, Eddie Schwartz, songwriter

Collective Management: Long a mostly secretive part of the industry, collective management has continued to grow in spite of the sharp drop in unit sales. More and more music seems to be consumed as part of a repertory not controlled by individual labels. This has spawned new forms of collective management (SoundExchange). The current US picture shows a variety of regulatory models (Dept. of Justice, Copyright Office) and the international picture is ever more complex. Is new regulation necessary? Are collective management organizations destined to grow even more or will it be replaced by new players?

  • Panelists: Professor William Henslee, Florida A&M University College of Law; Michael Huppe, General Counsel of SoundExchange

United States Exceptionalism in Copyright: The United States has the largest music industry in the world. Yet, U.S. copyright law is very different in many respects from those of most of our trading partners. To name just a few: no recognition of “moral rights,” sound recordings protected as “works” and not under “neighboring rights,” a number of complex compulsory licenses, no formal right of communication to the public, and debates about whether “making available” is part of the Section 106 rights; and an implementation of the 1996 WIPO Treaties (anti-circumvention rules concerning of technical protection measures) that differs from the choices made by major trading partners, including Europe. Should U.S. law converge toward international norms and practices, and is the success of the U.S. industry a sign that we got it right?

  • Moderator: Professor Daniel Gervais, Vanderbilt Law School
  • Panelists: Professor Jacqueline Lipton, Case Western Reserve University School of Law; Professor Salil Mehra, Temple University Beasley School of Law, David Carson, General Counsel, U.S. Copyright Office; Jeff Biederman, Manatt, Phelps, & Phillips, LLP

Enforcement: Enforcement (of copyright by national courts and other agencies) is barely mentioned in the Berne Convention, the major international copyright convention that was ratified by the Senate in 1989. Enforcement was covered in much more detailed provisions in the TRIPS (intellectual property) Agreement adopted as part of the World Trade Organization (WTO) package in 1994. Many stakeholders in the recording industry believe that those measures are still inadequate, in particular because they do not impose liability on intermediaries such as Internet Service Providers. The proposed Anti-Counterfeiting Trade Agreement is an effort to close that gap.

  • Moderator: Linda Bloss-Baum, Vice President of Public Policy and Government Relations for Warner Music Group
  • Panelists: Professor Annemarie Bridy, University of Idaho College of Law; Professor Peter Yu, Drake University Law School, Professor Ann Bartow, University of South Carolina School of Law; Shira Perlmutter, Executive Vice President, Global Legal Policy, International Federation of the Phonographic Industry

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