US Copyright Office: our-own-performance-society-reply

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Before theCOPYRIGHT OFFICELIBRARY OF CONGRESSWashington, D.C.

In the Matter ofSection 109 Repo rt to the Cong ressocket No. 2007-1REPLY COM M ENTS OF OUR OWN PERFORM ANCE SOCIETY, INC. (OOPS)

CAN CAN MUSIC AND JAMES CANNINGS COPYR IGHT OWNERTO TH E COM M ENTS OFAMER ICAN SOCIETY OF COMPOSER S, AUTHO RS AND PUBLISHERS,BROAD CAST M USIC, INC. AND SESAC, INCS U M M A R Y

On June 19, 2007 the Copyright Office, ("Office"), extended the time in which replycomments can be filed in response to its Notice of Inquiry requesting information for thepreparation of the Section 109 R eport to the Congre ss, as required by the Satellite Home View erExtension and Reauthorization Act of 2004. Reply Comments are due no later than October 1,2007. FR 33376.DISCUSSION

On December 8, 2004, the President signed the Satellite Home Viewer Extension and

Rea uthorization Act of 2004, a part of the Con solidated Appropriations Act of 2004. See Pub. L.No. 108-447, 118 Stat. 3394 (2004) (hereinafter "SHVERA"). Section 109 of the SHVERArequires the Office to examine and compare the statutory licensing systems for the cable andsatellite television industries under Sections 111, 119, and 122 of the Copyright Act andrecommend a ny necessary legislative changes no later that June 30, 2008.


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Earlier this year, the Office released a N otice of Inquiry (NO I) seeking commen t on severalissues associated with the matters identified in Section 109 of the SHVERA. See 72 FR 19039(April 16, 2007). To further supplement the record, the O ffice announce d the scheduling of publichearings for the purpose of taking testimony from interested persons. The hearings were heldduring the week of July 23, 2007. See 72 FR 28998 (May 23, 2007).REPLY COM M ENTS

Our Own Performance Society, Inc. (OOPS)/Can Can Music and James Cannings("Independent Party") hereby objects to the comments of American Society of Composers,Authors and Publishers, Broadcast M usic, Inc. and SESA C, Inc ("PRO s"), which by preferenceproposes that the comp ulsory licenses be abolished by Congress.

The m ain issue of transparency gives rise to the posit ion taken by the Independent Party.The Independent Party discussed the issue of transparency at length before the Office at a priorhearing held in 1997. At that time the Office examined and compared the statutory licensingsystems for the cable and satellite television industries under Sections 111, 119, and 122 of theCopyright Act and recommend n ecessary legislative changes to C ongress.1

It is respectfully submitted that that Summ ary of Testimon y be incorporated herein as theIndependent Party's Reply Commen ts. Exhibit A.Respectfully Submitted,

Our O wn Performance Society, Inc. (OOPS)Can Can M usicSeptember 30, 2007

I Our Ow n Performance Society, Inc. (OOPS) was formed subsequent to that date. Cannings founded OO PS OurOwn Performance S ociety, Inc.a not-for-profit corporation, which champions perform ing rights' needs and lobbieson behalf of songwriters and music publishers.

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EXH IBIT A


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Before theUNITED STATES COPYRIGHT OFFICELIBRARY OF CONGRESSWash ington, D.C.

In the Matter of:

Revision Of The Cable And Satellite CarrierCompulsory LicensesDocket No. 97-1

S U MM A R Y O F TE S T IMO N YPREAMBLE

A miracle of the mind creates, "original works."The C onstitut ion grants , Congress the pow er to secure, for l imited t imes, the exclusiveRight in "original works."En 1909, the Copyright Act guaranteed pr otection for, "original w orks of authorship."From 1976 to the present , the comp ulsory l icenses of the Copyr ight Law guarantees ,exclusive copyright protection against copyright infringem ent.The idea of C om pulsory Licenses should be extended in p erpetuity, subject to periodic

revision.ER E A S O N SH Y C A B L EN DATELIITE COMPULSORY LICENSES SHOULD BEEXTENDEDINPERPETUITYS U B J E C TOERIODIC REVISION1. As a copyright owner, who owns the exclusive right to his "original works ofauthorsh ip," copyright protection guaranteed throug h the compu lsory license for this exclusiveright, is perfect.

Spec i f ica l ly , cable and sate ll ite com pulsory l i censes o f fers me and other individua lcopyright ow ners the right to monies paid in by copyr ight users on a statutory basis, for the useof his or her intellectual prop erty an d, the distr ibution of same, subject to certain statutoryprovisions.

The comp ulsory licenses also give individu al copyright own ers access to informa tion thatis norm ally considered by private enterpr ises, as privileged inform ation. (see exhibit 1, letter toMr Huey C ole, of the Copyright Off ice, dated April 22, 1992, w hich ad dresses this issue, alongwith others.)1


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2. Once a statutory royalty rate is set, there is no need to go from user to user and visaversa to negotiate.3. The compulsory license, based on its provisions, is a forum for the m eeting of theminds, i.e. the copyright owner and user, without direct contact.4. The co mpulsory licenses encourages the freedom o f trade. It is the forum of the freemarket place.5. The comp ulsory license offers a forum, the CAR P, to resolve controversies.6. The career personnel of the Copyright Office specialize in copyright and, compulsorylicensing rules, regulations and procedures an d, as a result they can m ore efficiently maintain acontinuum of commerce. The C ARP , as opposed to courts and Commercial Arbitration, has theadvantage of expert advice from the Copyright O ffice, to rely on.7. The cable and satellite compulsory licenses should be regarded in the same light as theCopyright A ct, i.e. in perpetuity, subject to periodic revisions, expansions and, amendmen ts.

L E G I S L A T I V E P R O P O S A L A N D / O R A M E N D M E N T SThere are three areas, in which I will make recommendations for am endments.

D i s c u s s i o n1. The Copyright Law protects against copyright infringement. However, my ownpersonal experienc e has been that, that protection is at times too often jeopa rdized by dismissalsfrom a proceeding in the C opyright Office and the CA RP, as a result of motions made by certainmonopolies.Cop yright users, file their semi-annual statements, including payment with the CopyrightOffice, so as not to be liable for copyright infringement. A dismissed entitled copyright ownercannot, sue cop yright users for copyright infringement, as long as they h ave filed their semi-annual statements, including paymen ts, with the C opyright O ffice. Therefore, a dismissedentitled copyright owner, is in effect, forever deprived of money. This result, seems to counter,the intent of the Con stitution, Con gress, the Copyright L aw and, specifically the comp ulsorylicenses.The intent of the above three legal instruments, appears to my mind as being, an attemptto guarantee, a copyright own er against copyright infringement in perpetuity, subject to renewals.Per Title 17 U.S.C. 102.Specifically, an exem ption in the compulsory licenses, have granted mono polies the rightto, "lump their claims together an d file them jointly." Howe ver, on the other side of the coin, theeffect, as I have found out from persona l experience, is that this exem ption does not "protecttrade and comm erce against unlawful restraints and monopolies," as is the intent of the Act ofCong ress of July 2, 1890, better know as the Sh erman A ct as amended. In fact, it encourages"unlawful restraints and monopolies."

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The legal man ipulations of these monopolies have be en, a consistent concert effort toirreparably deprive parties of their entitlements, under the com pulsory licenses. By actions ofthese mon opolies, the process of the co mpulsory licenses reduces itself to, not if you are entitledto monies under th e statute, but rather, how to get the mo nies you are entitled to. This has beenmy experienced, even w h e n some of these monop olies have not presented any legitimate evidenceto support their direct case.2. From my personal experien ce, the com pulsory license mon ies, distributed by the CRT

to at least one of these monopolies, with whom I had an affiliate agreement, was notautom atically redistributed to me, even though I proved to it that I was entitlement to royaltiesfor secondar y transm ission, (distant signal/cable royalties). (see letter to Mr Del Bry ant of BM I.Exhibit 2)Instead I w as told by i ts Senior Vice President that I wa s enti t led to royalt ies for one

local Transmission. I had to Arbitrate in order to be paid. (see AAA Arbitration caseNo.1314300644/92, James Ca nnings /Can Can Mu sic vs . Broadcast M usic Inc . BMI, and, thesame case, Index # 119557/94, Suprem e Court of the State of New Yor k County, on file at theCopyright Office.)

Moreover, to the best of my knowledge, BMI has not to date manifested to theiraffiliates, in an y of their br ochures an y categories, specifically notifying them of their entit lementto monies under the various compulsory licenses.My point here i s , i f th is compan y i s not forthcoming on a m atter perta in ing to cablecomp ul sory l ic ense wh ich is at present public information, how can it be trusted if thisin formation i s no longer pu bl ic, due to the suggested ph asing out o f the cable and sate l li tecompulsory licenses?

Proved Amendment(1) My proposal therefore is , that all paragr aphs of the compu lsory licenses w hich relateto the a.bove anti-trust exemp tion be am ended w ith the addition to read, "notw ithstanding anyprovisions of the Anti-trust Law s, for the pur poses of this clause any claimants may agree amon gthem selves as to the proportionate division of comp ulsory licensing fees among them . may lum ptheir claims together and file them jointly or as a single claim, or may d esignate a comm on agentto receive paymen t on their behalf, provided that the effect of so doing wou ld not be construed,in the mind of a reason able person, as being the cause of IQ "protect[ion] of trade and commerceagainst unlawfu l restraints and monopolies."(2) Add ed to the above provision it is hereby, recomm ended that any agreement amongstany copyright ow ner (s), as to a settlement, that is not a proportionate division of the compulsoryl icensing fees, shall at all t im es include interest earned on the agreed am ount. The interest soearned sh all be for the period beginn ing from th e date of the initial investment in the Treasury,by the Register of Copyrights, to the date of pay ment of the agreed am ount, to the other party.(3) In regard to the issue of the redistribution of comp ulsory l icenses royalties, I dorecomm end that the compulsory licenses be amendm ent to make any association or organization,representing persons before the Copyright Office, be ma de accountable to their mem bers and

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affiliates, in this regard, - mo ney distributed from the proceed s of comp ulsory licenses is subjectto Public Law and, is therefore public money.CONCLUSION

The pen ding revision of the cable and satellite compu lsory licenses, has granted to me theoppor tunity to have all concerne d be aw are of issues that affect all comp ulsory license$ My pointof v iew, i s that of an indiv idual copyright ow ner, wh o is prosecut ing his c la ims before theCopyright Office and CARP and, who has been a m ember an d affil iate of both ASCAP and BMI.It is hoped th at the legislature will take a close look at all facts w hich are p resented h erein, as Iam p resenting these facts, from the perspective of first hand know ledge.

I would stress again, that the cable and satellite compu lsory licenses should be reg ardedin the same light as the Copyr ight Act, i .e. in perp etuity, subject to periodic rev isions, expansionsand, amendments.It is my hope, that the legislative branch of gover nmen t, would take the n ecessary steps toguarantee thi s Const itut ional Right and, that i t w ould in i t iate leg i slat ive am endm ents to a l l

comp ulsory l icenses as per my r ecomm endations. I w ould be g lad to fac i li ta te and, can beconsulted should the need arise.\ Respectfully submitted,

J a m es Cannings /Can Can Mu sic!Copyright Owner

400 2nd Avenue # 22CNew York, N.Y. 10010(212)642-8260

Sworn before on May 8, 1997

Notary Public

My Commissionx p i r e s S e p t e m b e r 1 4 : 2000


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E X H I B I T L


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JAMES CANNINGS400 2ND AVENUE SUITE 22CNEW YORK, N.Y. 10010212 642-8260

APRIL 22, 19922027075202

MR HUEY COLECOPYRIGHT OFFICE LM 613LIBRARY OF CONGRESSWASHINGTON, D.C. 20557DEAR MR COLE:THANK YOU AGAIN FOR YOUR PATIENCE IN SHARING YOUR EXPERTISE WITH ME.ENCLOSED PLEASE FIND A COPY OF MUSIC CABLEISTRIBUTIONSSDISCUSSED. I WOULD LIKE TO HAVE THE FOLLOWING COPIES OF CANCELLEDCHECKS, BACK AND FRONT, PAYED TO BMI INC., BE SENT TO ME AS SOON ASPOSSIBLE FOR ALL DISTRIBUTIONS MADE PER ATTACHED SCHEDULE FOR THEYEARS 1985, 1986 AND 1989 RESPECTIVELY.AS MENTIONED IN OUR TELEPHONE CONVERSATION, I HAVE A JUST CLAIM, ASAN AFFILIATE OF BMI, TO THE REDISTRIBUTION OF THESE ROYALTY PAYMENTS.I HAVE ENCLOSED FOR YOUR CONVENIENCE CORRESPONDENCES TO BMI IN THISREGARD. TO DATE I HAVE BEEN IGNORED BY BMI.AS POINTED OUT TO YOU AND I WOULD HOPE THAT YOU WILL FORWARD THEBELOW REQUEST TO THE APPROPRIATE AUTHORITIES, I AM VERY HAPPY THATTHE GOVERNMENT IS INVOLVED IN ENFORCING THE PROTECTION GRANTED TOCOPYRIGHT OWNERS AND CLAIMANTS BY THE COPYRIGHT ACT. AS A RES ULT OFYOUR INVOLVEMENT WE THE COPYRIGHT OWNERS AND CLAIMANTS HAVE ACCESS TOINFORMATION NEVER BEFORE AFFORDED US BY THE PERFORMANCE RIGHTSORGANIZATIONS IN AMERICA. AS A RESULT OF THIS ACCESS WE HAVERECOURSE. AS A RESULT OF THIS RECOURSE, I AM NOW ABLE TO APPROACH BMIWITH FACTS AND FIGURES WHICH ARE ACCURATE, RELIABLE AND IRREFUTABLE.I AM ALSO OBSERVING A TRENDHEREHESEERFORMINGIGHTSORGANIZATIONS ARE TRYING TO GET THE GOVERNMENT OUT OF THE AREA OFADMINISTERING THE COMPULSORY LICENSES , PER THE COPYRIGHT ACT (TITLE17 U.S.C), BY AGREEING WITH ALL PARTIES TO NEGOTIATE VOLUNTARILY ANDTHEREFORE, PRIVATELY. THIS IS EXACTLY WHAT THE PERFORMANCE RIGHTORGANIZATIONS WANT. THEY DESIRE TO KEEP A BLACKOUT ON INFORMATION.I WOULD HOPE THAT IN BEHALF OF THE COPYRIGHT OWNERS AND CLAIMANTSTHAT YOU WOULD REGAIN CONTROL OF THE AMOA IN 1999 AND WOULD MAINTAINTHE SATELLITE CARRIER STATUTORY LICENSE BEYOND DECEMBER 31, 1994.IT IS A FAMILIAR LINE USED BY THESE ORGANIZATIONS, AND I HAVE BEEN AMEMBER OF TWO, "YOU DO NOT SHOW UP IN OUR SURVEY." THIS STATEMENTMEANS THAT WE ARE NOT ENTITLED TO ANY PAYMENT, EVEN THOUGH OUR MUSICHAS BEEN USED BY THE MEDIA WHICH HAVE PAYED LICENSING FEES TO THESEPERFORMING RIGHTS ORGANIZATIONS FOR -SUCH USE. WE ARE FORCED TO


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ACCEPT THE ABOVE LINE AS THE GOSPEL AND IF THEY DO PAY WE ARE FORCEDTO ACCEPT WHAT THEY SAY IS OUR DUE. THESE ORGANIZATIONS OFFER TOTHEIR MEMBERS NO INFORMATION OTHER THAN WHAT THEY WANT US TO KNOW.I WOULD LIKE TO POINT OUT TO YOU THAT IN MOST INFORMATION FURNISHEDTO ME BY BOTH THE COPYRIGHT OFFICE AND THE COPYRIGHT ROYALTYTRIBUNAL, BMI, ASCAP AND SESAC ARE ASSIGNED THE DEFINITION OFCOPYRIGHT OWNERS. THIS TERM IS ERRONEOUS. OUR CONTRACTS WITH THESEORGANIZATIONS AS WRITERS AND PUBLISHERS GRANT TO THEM THE RIGHT TOLICENSE OUR PERFORMING RIGHTS AND DOES NOT TRANSFER TO THEM OURCOPYRIGHT OWNERSHIP AS IS SUGGESTED IN SOME OF YOUR INFORMATION.I WOULD HOPE THAT IN THE FUTURE AND HOPEFULLY SOON THAT THEGOVERNMENT WOULD BRING WITHIN ITS JURISDICTION ALL MEDIA, INCLUDINGRADIO. THEREFORE, ENFORCING THE PROTECTION OFFERED BY THE COPYRIGHTACT TO ALL COPYRIGHT OWNERS AND CLAIMANTS. THE LATTER POINT ISDEFINITELY NOT BEING DONE BY THE PERFORMANCE RIGHTS ORGANIZATIONS.THEY ARE OUT FOR THEMSELVES. THEY SELL OUR PERFORMANCE RIGHTS VIALICENSES, PAY THEMSELVES AND THOSE INVOLVED IN THEIR SCHEME FIRST,THEN PAY SOME BUT NOT ALL OF THEIR MEMBERS/AFFILIATES FORPERFORMANCES, AND DO NOT PAY OTHER MEMBERS/AFFILIATES EVEN THOUGHTHEY ARE ENTITLED TO PAYMENT. I AM A PRIME EXAMPLE, AND, AS ITAPPEARS, I WOULD HAVE TO FIGHT TO GET WHAT IS MINE EVEN THOUGH I HAVEMANIFESTED THE FACTS SUPPLIED BY MYSELF AND THE GOVERNMENT TO BMI.IT IS MY OPINION THAT THIS PARTICULAR CASE OF MINE (ASERATTACHMENTS) FALLS WITHIN THE LEGAL DEFINITION OF FRAUDULENTCONCEALMENT, FRAUDULENT CONVERSION AND FRAUDULENT REPRESENTATION.SHOULD THERE BE ANY GOVERNMENTAL ORGANIZATION(S) THAT CAN CONDUCT ANINVESTIGATION INTO THESE PERFORMANCE RIGHTS ORGANIZATIONS., KINDLYFORWARD TO THAT ORGANIZATION(S) THIS LETTER AND ITS ATTACHMENTS ANDASK THEM TO CONSIDER THIS AS A FORMAL COMPLAINT. I WOULD ALSO ASK YOUTO FORWARD TO ME THE NAME OF SUCH AN ORGANIZATION(S) AND ITS CONTACTPERSON TO WHOM THIS MAY BE FORWARDED.LOOKING FORWARD TO YOUR COOPERATION IN THIS MA TTER. KINDLY TREAT THISREQUEST AS URGENT.THANKING YOU

SINCERELY

JAMES CANNINGSCOPYRIGHT OWNER/CLAIMANT


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EXHIBIT 2


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JAMES CANNINGS AND CAN CAN MUSIC400 END AVENUE SUITE 22CNEW YORK, N.Y. 10010

212 642-C260

CERTIFIED - RRR

APRIL 6, 1992

MP. DEL PRYANTSENIOR VICE PRESIDENT

BM I7E0WEST 57TH STREETNFL YORK, NY. 10019

RE: CLAIM TO CABLE ROYALTY FEES FORSECONDARY TRANSMISSIONS DURING PERIODJANUARY 1, 1985, 1986nd989HROUGHDECEMBER 31, 1985, 1388, and 1989RESPECTIVELY(PURSUANT TO 37 CFR CHAPTER 111, SEC. 302.7DEAR MR BRYANT:

THIS LETTER IS PURSUANT TO OUR TELEPHONE CONVERSATION.FIRST I WAS VERY SURPRISED THAT, (BASED ON OUR BRIEFDISCUSSION AND YOUR OBVIOUS KNOWLEDGE IN REFERENCE TOABOVE CAPTIONED TOPIC) YOU WOULD CONCLUDEIN APREVIOUSCONVERSATION THAT MY ENTITLEMENT TOOYALTIES FOPERFORMANCES ON THE JOE FRANKLIN SHOW IS LIMITED TO 1 LOCALPERFORMANCE 1.e. $1.50. I AM ALSO EQUALLY SURPRISEBROCHURES ARE STILL SILENT ON 4 OF THE 5 COMPULSORYL I C E N S E S , WHICH ARE ON THE BOOKS SINCE 1976 AND 1923EFFECTIVELY ANDTHAT, EVERY JULY SINCE 1973 SUBSEQUENT TOTHE REVISION OF THE COPYRIGHT ACT OF 1909, BMI HAS BEENCLAIMS ANDCOLLECTING MONIES ON BEHALF CF COPYRIGHTI WOULDO REMIND YOU THAT "THE GOAL OFSTATUTORY LICENSE IS TO GUARANTEE THAT COPYRIGHT OWNERSRECEIVEFULL COMPENSATION FOR. USE OF THEIR WORKS WITHIN THES'C''E.^F -PE LICENSE."Volume 54 number2f

J'1;. 2.3 ' 1'91THIS LETTER TEREORE. A LETTER OF ENTITLEMENT TO NO!-: Er-LLEc1772 BY YOU IN MY BEHALF FROM THE COPYRIGHT ROYALTY-7':9_11_ FOR THE YEARS 1985, 1986 AND 1983 IN THE AMOUNT42%OF $20,364,272.36, WHICHIS, ZO762,934.60.Ct!Ei12 DUE AND PAYABLE TOIMMEDIATELY, MIML: PRE'.ICI'FAMENTS AND ADVANCE. (SEE ATTACHEDCLAIMS)


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