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The Music Modernization Act is a Good Solution For Songwriters. Don’t Combine It With Bad Copyright Bills.

DEEPLINKS BLOG
March 28, 2018

The Music Modernization Act is a Good Solution For Songwriters. Don’t Combine It With Bad Copyright Bills.

Music & Copyright

For the first time in six years, Congress is considering serious changes to copyright law. As you might imagine, those changes are a mixed bag for the public. One bill, the Music Modernization Act, would create a new system for compensating songwriters and music publishers when their songs are played on digital services. It solves a problem recognized by nearly everyone in the music space. And while the bill has some problematic text that needs fixing, it’s a good effort.

Unfortunately, the MMA has now been combined with a harmful bill, the “CLASSICS Act,” which would create a new form of pseudo-copyright for recordings from before 1972, adding on new royalties and penalties without giving anything back to the public. And other dangerous bills could get added as amendments: the “CASE Act” and the “Register of Copyrights Selection and Accountability Act.”

The Music Modernization Act addresses a big problem in the music business: many songwriters and music publishers have trouble collecting royalties for the use of their songs for digital streaming. Today’s systems and organizations that administer these “mechanical royalty” payments (for the reproduction and distribution of songs) are not up to the task. Millions of dollars in royalties go unclaimed. Several music publishers have tried to create a solution by brute force, filing lawsuits for billions of dollars under copyright’s draconian civil penalty regime.

The MMA would create a new licensing collective to gather data about who should be paid for the use of songs, and to distribute royalties, replacing the unpredictable litigation bazooka of statutory damages with a fairer system. That’s a copyright fix we can get behind.

The MMA does have some flaws. It has some language that seems to define audio streaming as a reproduction and a distribution under copyright law, even if no permanent copies are made. While that language refers only to music streaming, other copyright holders might use it to attack key court decisions that protect Internet video services and cloud computing. In addition, control of the licensing collective created by the bill is weighted rather heavily towards music publishers, not actual songwriters.

Still, these flaws are fixable. The same cannot be said for the CLASSICS Act, which creates new obstacles for users of old music. That Act would extend parts of federal copyright to cover sound recordings made before 1972, which are currently covered only by a patchwork of state laws. That means, for the first time, recordings made between 1923 and 1972 couldn’t be streamed on digital music services or Internet radio without a license, and failing to get one could leave the streamer liable for massive, unpredictable statutory damages.

Creating new barriers to the use of old creative works is not what copyright is for. Copyright is a bargain: authors and artists get limited, exclusive rights over their works as an incentive to create. In return, the public is enriched by new art and authorship and can use works in ways and times that fall outside the rightsholder’s zone of exclusivity. Creating new rights in recordings that have been around for 46 years or more doesn’t create any new incentives. It simply creates a new subsidy for rightsholders, most of whom are not the recording artists. The CLASSICS Act gives nothing back to the public. It doesn’t increase access to pre-1972 recordings, which are already played regularly on Internet radio stations. And it doesn’t let the public use these recordings without permission any sooner: state copyrights will continue until 2067, when federal law takes over fully.

The CLASSICS Act will put today’s digital music giants like Pandora and Sirius XM in a privileged position. Many of them already pay royalties for some pre-72 recordings as part of private agreements with record labels, on terms that simply won’t be available to smaller Web streamers like college and independent radio stations.

The CLASSICS Act will also make it much harder to hear significant recordings from the 1920s, ‘30s, and ‘40s. These recordings will still remain under copyright for as much as 144 years. But with the addition of federal rights and penalties, streaming those works would get a lot more risky. As decades follow decades, current rightsholders become ever more difficult to identify and locate. Even a conscientious streamer could face lawsuits from a musician’s distant heirs.

Copyright should not be used as a subsidy for rightsholders in old works, creating no new incentives or public access. Congress should not risk losing the benefits of the Music Modernization Act by tacking on the CLASSICS Act.

Ultimately, copyright law should benefit a broad public, including music fans. Creating more friction in copyright law inevitably leads to inconvenience and legal confusion for listeners. The further expansions of copyright law in the CLASSICS Act will bring even more frustrations for users in the form of confusion over why they can’t listen to an old favorite recording.

Nor should Congress add other bad ideas as amendments to the MMA. We’ve discussed here why the CASE Act, which would create a new “small claims” tribunal at the Copyright Office, would supercharge the abusive business model of copyright trolling. And we’ve explained why the Register of Copyrights should remain an appointee of the Librarian of Congress, not an independent appointee. These proposals should not be combined with the valuable and widely supported Music Modernization Act.

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