The copyright laws of the US were written over hundred years ago.
1908 to be exact. Long before the internet was even conceived of. Let alone streaming. Music law was written during the era of player pianos when music was written on piano rolls. For years, the music industry has had to work within the confines of insanely outdated laws. ASCAP and BMI have been bound by ‘rate court’ judges dictating pricing practices. Songwriter (mechanical) royalty rates have been set by the Copyright Royalty Board – which rarely ever increase. And when they do, it’s minimal and based on an extremely complicated formula.
“No other industry is this heavily regulated. Not tobacco. Not oil. Not guns. Not medicine. Songwriters.” – Ross Golan, hit songwriter, podcaster of And The Writer Is…
There have been bills over the years that have looked to update the laws so the music industry could march forth into the 21st century, but alas they never really broke out of committee.
For the first time in 100 years, there is a bi-partisan piece of legislation that not only songwriters, artists, publishers and labels agree on. But also the major DSPs like Spotify, Apple Music, Google and Amazon.
The bi-partisan Music Modernization Act, H.R. 5447, passed the House of Representatives 415 – 0 on April 25th, 2018.
The bill was initially introduced by co-sponsors Robert Goodlatte (R-VA) and Jerrold Nadler (D-NY).
Representative Doug Collins (R-GA) and Representative Hakeem Jeffries (D-NY) have been supporting legislation in support of songwriters and the music community for years. After the MMA passed he said “Who would have thought that a Congressman from rural Georgia would find agreement with a liberal democrat from Brooklyn?”
It looks like the MMA will pass the Senate as well (if SESAC doesn’t completely dismantle the process).
There has been a lot of confusion about what this bill actually is and does. The bill is 156 pages. The definition of TL;DR.
So, below is a quick explanation by the law offices of Dina LaPolt and SONA (Songwriters of North America) on what the current system is and what the Music Modernization Act will fix.
|Music Modernization Act
|Digital service providers (DSPs) such as Spotify and Apple Music can avoid payments for works that aren’t registered with the Copyright Office by sending large quantities of Notices of Intent (NOIs) to the Copyright Office. Rather than determining how to properly make payments, they use NOIs as a loophole to play music while avoiding making payments to songwriters and publishers in the meantime. 45 million notices have been filed to date.
|No more NOIs. The MMA creates a single, centralized mechanical licensing entity called a Mechanical Licensing Collective to collect royalties for all songs played by DSPs. DSPs are now required to pay for all uses of your works, even if they cannot find an owner, rather than avoiding payments through the NOI loophole.
|Whenever ASCAP and BMI cannot negotiate performance royalties with licensees, each performing rights organization (“PRO”) sets its rates before its own single-appointed rate court judge, who decides all of that PRO’s royalty rate disputes with every class of customer.
|When ASCAP and BMI go to rate court, their rate proceedings will be assigned randomly to any available federal judge, except for the respective judges appointed to oversee the PROs’ consent decrees. This will ensure that the same single judge does not decide every single rate for the PROs.
|ASCAP and BMI consent decree rate courts setting blanket license fees for the public performance of musical works by digital services cannot consider the important market evidence of sound recording rates, which may be negotiated in the free market. This prevents rate courts from addressing the huge disparity in rates.
|ASCAP and BMI rate courts can now consider all market evidence, including sound recording royalties, when setting rates for public performances of musical works.
|There is no process to identify ownership of unmatched copyrighted works. The DSPs are holding on to millions of dollars in unclaimed and unmatched monies.
|The MMA establishes a clear process through which copyright owners can claim ownership of songs and receive royalties. Rather than allowing the DSPs to keep the unclaimed, unmatched money indefinitely, the money goes to the licensing entity, where we have the power to make sure it is distributed fairly. The licensing entity, in turn, will work to match sound recordings with musical compositions to ensure correct payments.
|No requirement that songwriters receive royalties for unmatched works – sound recordings where ownership in the underlying musical work has not been identified. Publishers are not always obligated to share unmatched work $$ with songwriters.
|Songwriters are obligated under law to receive at least 50% of all royalties for unmatched works.
|DSPs, while paying mechanical royalties on digital interactive streaming (e.g., Spotify), have recently taken the position in litigation that using music on these services does not require a mechanical license.
|The law officially states that digital interactive streaming utilizes the mechanical reproduction right under copyright law. DSPs will never be able to argue this point again.
|No right to audit the digital music providers’ usage of music and royalty payments.
|New licensing entity can audit digital services to ensure proper reporting and payment of royalties. Copyright owners will be able to audit the licensing entity to ensure that they are being paid accurately. Both audit rights ensure that songwriters are able to get answers about whether they are being paid accurately.
|Mechanical royalty rates are set using an outdated four-part formula (801(b)), resulting in below market rates.
|Rates will be based on what a willing buyer and a willing seller would agree to reflect market negotiations. This is one of the main provisions in the Songwriter Equity Act, which has been on the table for years in Congress with no traction.
|Songwriters have no involvement in or direct influence over the mechanical licensing system
|Songwriters have positions on three boards governing the operation of the licensing entity:
|Songwriters and music publishers pay commission to vendors who administer mechanical licenses.
|All costs for the licensing entity and its operations are paid for the by DSPs, eliminating commissions and resulting in higher payments to songwriters.
|Digital music services risk legal liability for high statutory damages if they use songs on their services where the copyright owner(s) cannot be found.
|Digital services that obtain a blanket license from the Mechanical Licensing Collective and comply with licensing requirements will be exempt from liability of statutory damages. This is really the main motivation that the DSPs have for endorsing the legislation and agreeing to pay all costs in connection with the new licensing entity—so that they can avoid further multimillion-dollar class action lawsuits. In turn, as discussed above, we have assurance that they will pay for every use of every composition rather than using loopholes to avoid making payments.
|No transparency of mechanical rights ownership information for copyrighted works.
|A free, public, searchable database of musical works with mechanical rights ownership information. This will help songwriters get paid accurately for use of their works.
|Satellite radio services have been paying rates using the outdated four part formula (801(b)) noted above with respect to mechanical royalties, resulting in below-market rates.
|Satellite radio services will move their rate standards to what a willing seller and willing buyer would pay in a free market, resulting in payment of royalties more commensurate with a market rate.
|Owners and artists of sound recordings recorded prior to 2/15/1972 do not enjoy any protection or compensation with respect to digital performances.
|The MMA has added a section to its bill from the Act known as: CLASSICs (Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act), effectively giving owners and artists of sound recordings fixed between 1/1/1923 and 2/15/1972 protection against unauthorized digital performances. Users of such sound recordings will need to give copyright owners notice of any such use, pay statutory royalties for such use, and infringers will be subject to all remedies set forth in sections 502-505 as an infringer of copyright.
|Although throughout recent years artists have been voluntarily executing and submitting letters of direction (“LODs”) to third party digital performance royalty collection organizations with respect to sound recordings (e.g., SoundExchange), producers, mixers and sound engineers do not have a way to direct or enforce such third parties to account to them for their creative contributions in sound recordings.
|The MMA has also now added a section to its bill from the Act known as the AMP Act (Allocation for Musical Producers Act), providing for payment of statutory sound recording performance royalties to producers, mixers and sound engineers. An artist will now submit an LOD to a non-profit collective designated by Copyright Royalty Judges which will keep a central database and oversee the collection and distribution of such monies.
Furthermore, the non-profit collective will withhold a 2% deduction of all receipts collected in connection with the licensing of a transmission of a sound recording that was fixed pre-11/1/95. Following a specified process under the MMA, a producer/mixer/engineer can realize their pro-rata share of such monies in the event that they have otherwise been unsuccessful in obtaining a reply and signed LOD from an artist with respect to such monies.
If an artist payee subsequently objects to any such payments, those payments will stop being made to the applicable producer/mixer/engineer. If there are multiple artist payees for any one sound recording, and only 1 artist objects, the producer/mixer/engineer will still be entitled to receive a pro-rata share of the remaining artists’ share(s).