Kelsey Farish

In my previous post, I wrote about the European Union’s sweeping new Directive on Copyright in the Digital Single Market, which is currently in draft stages. But copyright legislation is getting an update on the other side of the pond, too.

Since 1909 — before recordings of music even existed — Section 115 of the Copyright Act has regulated the licencing of musical works. Many songwriters and music publishers have trouble collecting royalties for the use of their songs played via digital streaming services. Amongst other things, the proposed Music Modernisation Act will modernise how compensation for mechanical licenses, which include digital streaming, is determined.

Last week, The United States House Judiciary Committee voted unanimously (32-0) to approve House Bill 4706, “to provide clarity and modernize the licensing system for musical works under section 115 and to ensure fairness in the establishment of certain rates and fees.” More commonly known as the Music Modernization Act (“MMA”), the bill now heads for consideration by the full House of Representatives. The MMA has received wide bipartisan support from Democrats and Republicans alike, and appears to be “on the fast track” for approval.

Importantly, the MMA will create an American agency or “mechanical licensing collective” that would house all music publishers under one roof. It is expected that the agency will have a database of ownership information, which will increase transparency and help identify music creators who are owed royalties.

Once established, the digital streaming services will pay the mechanical licensing collective, which in turn tracks and collects royalties on behalf of the artists. As explained by Committee Chairman Bob Goodlatte (a Republican from Virginia), the MMA “boosts payments for copyright owners and artists by shifting the reasonable costs of a new mechanical licensing collective onto digital music services, who themselves benefit from reduced litigation costs as a result of other provisions in the bill.”

Speaking to ABC news, John Simson noted that Americans “…have a 1909 statue trying to govern 2018 technology, and it doesn’t work.” Mr Simson is a professor at the American University and founding member of Sound Exchange, a non-profit organisation set up to collect and distribute performance royalties.

Intellectual Property Subcommittee Vice Chairman Doug Collins (a Republican from Georgia) noted that “the current music licensing landscape undervalues music creators and under-serves music consumers. Outdated copyright laws have produced unnecessary liabilities and inefficiencies within the music licensing system, and stakeholders across the music industry have called for reform. This bill moves the music industry towards a freer and a fairer market, enabling it to leverage the present and future benefits of the digital age.”

• The first section of the bill concerns how modern digital music services operate, and will create a “blanket licensing system” to quickly license and pay for musical work copyrights. A key aim includes discouraging lawsuits in favour of simply ensuring that artists and copyright owners are paid in the first place without such litigation (see “No lawsuits over unpaid royalties after 1 January 2018?” below).
• The second section, “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (CLASSICS) Act” will focus on public performance rights for pre-1972 recordings. In particular, musicians with pre-1972 recordings will receive royalty payments when their tracks are played on the radio, online, or on television.
• The third section, “Allocation for Music Producers (AMP) Act,” will ensure that record producers, sound engineers, and other creative professionals also receive compensation for their work.

No lawsuits over unpaid royalties after 1 January 2018?
Of course, the MMA is not without its detractors who are quick to point out several key issues. Firstly, the bill sets out a broad limitation of liability clause which essentially shuts down any potential lawsuits filed after January 1st 2018. That’s not a typo – Section 2(10)(A), the MMA really does apply a retrospective restriction on legal action.

Without the possibility of litigation, songwriters (and other copyright holders) who have unpaid royalties have one sole and exclusive remedy: they must go through the process set out in the legislation, governed by the dispute resolution committee of the mechanical licensing collective.

And while the mechanical licensing collective created by the MMA will have a board of directors, that board will be comprised of ten music publishers (record labels) together with only four songwriters! Furthermore, as currently written, the MMA provides no grievance process for excluded writers and those who receive unjust treatment. Is this likely to hit the right note with independent artists and smaller record labels?

Featured image – Francis Barraud, His Master’s Voice.