Congress is Poised to Modernize Music Copyright
WASHINGTON—This op-ed by Reps. Doug Collins (R-Ga.) and Judy Chu (D-Calif.) first appeared in Variety on April 18, 2018.
Last week, we were happy to join House Judiciary Chairman Bob Goodlatte (R-Va.) and Ranking Member Jerry Nadler (D-N.Y.) in introducing an historic bill for the music industry, the Music Modernization Act of 2018 (MMA), which passed unanimously out of the Judiciary Committee 32-0. As co-chairs of the Creative Rights Caucus, we have supported music creators since we came to Congress, and we’re gratified to see the MMA modernize music licensing law in a single bipartisan package that addresses a spectrum of issues currently undermining artistic innovation.
Despite the fact that the music industry has already progressed deep into the digital age with streaming and downloads becoming the norm, it’s still bound by laws enacted before streaming even existed. Some of these laws make it impossible for stakeholders to respond to technological advancements and others thwart free-market forces. Yet asking songwriters to keep the market supplied with new anthems while the government holds payments for those songs below market value is like asking them to keep an anvil afloat in the ocean.
To address these problems, the MMA includes several key provisions.
The Music Modernization Act, which we introduced with our colleague Rep. Hakeem Jeffries (D-N.Y.) last December, accounts for the bulk of the language in the new MMA package and levels the playing field for songwriters while increasing operational efficiencies for digital music providers like Spotify and Amazon Music.
Both of these goals are achieved in part through a new mechanical licensing collective governed by publishers and songwriters. The database would match songwriters to their songs, making it easier for creators to identify the use of their work and for music providers to fully compensate those creators and avoid copyright infringement.
The bill also modernizes how compensation for mechanical licenses (which include digital streaming) is determined. Since 1909 — before music sound recordings even existed — Section 115 of the Copyright Act has regulated musical compositions. At present, the government determines the statutory rates for musical works through the Copyright Royalty Board (CRB), using a policy-based standard to set rates that don’t reflect market value for those works. To bring American values to bear on an American marketplace, the MMA establishes a willing buyer/willing seller standard for mechanical licenses.
The process for determining performance royalty rates is similarly outmoded, and the MMA injects more fairness into that system by widening and randomizing the pool of federal judges who set performance royalties for the two largest performance rights organizations, ASCAP and BMI. These organizations represent songwriters in their quest for timely, appropriate compensation when their works are publicly performed. The legislation additionally reforms a provision of the Copyright Act that forbids the federal rate courts overseeing the consent decrees that govern ASCAP and BMI from factoring in sound recording royalty rates as a relevant benchmark. The federal government has had its thumb on these scales for too long, and that ultimately hurts producers or consumers.
The simple theme of these reforms is fairness: Songwriters deserve the opportunity to obtain fair rates for the use of their musical works, and music providers should be able to compensate creators with transparency in a way that makes sense for the 21stcentury.
Beyond the provisions of the original Music Modernization Act, this week’s package settles once and for all the debate over whether creators should be compensated for use of work created before 1972. Artists like Smokey Robinson, Booker T. Jones and Emmylou Harris deserve to be compensated for use of their work as much as Outkast and Shawn Mendes do. The pre-1972 qualification reflects a distinction without a difference, one that the MMA resolves by incorporating the CLASSICS Act offered by our colleagues Reps. Darrell Issa (R-Calif.) and Jerrold Nadler (D-N.Y.).
Finally, the MMA recognizes for the first time in law that studio producers play a key role in translating sheet music and live talent into sound recordings. From the days of 78 rpm recordings to the digital audio that flows from our smart phones, studio producers have helped lay down the tracks that we love. These professional catalysts are often compensated for use of their work today through private agreements, and the MMA includes language from the AMP Act to recognize this practice and extend it to all producers.
Together, all of these provisions of the MMA modernize licensing on behalf of music creators and the people who love their work. The package has received wide bipartisan support from our colleagues — including a unanimous vote of support from the House Judiciary Committee this week — and enjoy overwhelming consensus among music publishers, songwriters, artists, labels, producers and digital music services.
Support continues to flow from the Recording Academy, the Nashville Songwriters Association International (NSAI), the Association of Independent Music Publishers (AIMP), the National Music Publishers’ Association (NMPA), the Content Creators Coalition, the Recording Industry Association of America (RIAA), Songwriters of North America (SONA) and the Digital Media Association (DiMA), which represents Amazon, Apple, Pandora and Spotify, among others, and the Internet Association.
This week, as music creators travel to Washington for Grammys on the Hill, we are honored to receive the Recording Academy’s award for our work fighting for creators. And while “we thank the Academy” for that award, we want to use this opportunity to highlight the songwriters, artists and producers who have motivated a “coalition of unusual suspects” —as Rep. Jefferies terms us — to collaborate on a bill that brings fairness and transparency into an overregulated industry. With these creators in mind, we urge our colleagues to support the speedy passage of this bipartisan bill that protects music — which continues to be one of America’s greatest innovations and exports — for this generation and the ones to come.