The Orrin G. Hatch – Bob Goodlatte Music Modernization Act (“MMA”) became law on October 11, 2018. It enacts sweeping changes to provisions of the United States Copyright Act affecting the compulsory license for making and distributing phonorecords of musical works (known as the “mechanical license.”)
Those most affected: Songwriters.
The response from songwriters: Crickets.
What songwriters should do, immediately: Wake up and take action!
The MMA was touted publicly as a long-overdue means for improving efficiency and fairness of mechanical licensing; as a way to rectify “inequitable compensation variances for music creators.”
That, in plain English, is hogwash.
The MMA establishes a blanket licensing procedure for the reproduction and distribution of musical works by digital music providers. The concept is not objectionable. The law, however, mandates a scheme for executing this concept in a manner skewed dangerously against the interests of independent songwriters.
The MMA couches many of its provisions in terms of “copyright owners” and their rights to revenue and representation. An independent songwriter might read this language casually and think, “Great. That’s me; I’m a musical work copyright owner.” Do not make this mistake. As crafted, the term “copyright owner” in the MMA is code for “big music publishers.”
The MMA is the absolute epitome of a wolf in sheep’s clothing.
There is much to decry about the MMA. For now let’s focus on two of the most damaging provisions: the distribution of unclaimed royalties; and lack of representation on the body that will implement and administer the new blanket license.
A nonprofit “mechanical licensing collective” (“MLC”) will offer and administer the new blanket license; it will collect royalties from digital music providers; and it will distribute those royalties to “copyright owners.” The MLC is tasked with establishing a musical works database and a process by which musical work copyright owners can claim ownership of musical works and royalties arising under the blanket license. Again, this is not a terrible concept; it could work in a manner akin to the performing rights societies (ASCAP, BMI, SESAC) and/or SoundExchange.
There’s a major difference, however, with the MMA: if a musical work copyright owner does not make herself known within three years, the MLC will distribute her royalties to the other copyright owners in the database, based on “data indicating the relative market shares of such copyright owners as reflected in reports of usage provided by digital music providers for covered activities for the periods in question….”
In plain English: Royalties rightly belonging to independent songwriters who don’t happen to comply with the MMA’s inscrutable rules are going to be paid over to big music publishers.
Representation on the MLC
The mechanical licensing collective will have a board of directors consisting of 14 voting members and 3 nonvoting members. Let’s break that down. The law states that:
- Ten voting members shall be representatives of music publishers as to which songwriters have assigned exclusive rights of reproduction and distribution of musical works.
- Four voting members shall be professional songwriters who have retained and exercise exclusive rights of reproduction and distribution to musical works they have authored.
Of the three nonvoting members, two will be industry insiders. The third, ostensibly, will be a representative of a trade association whose primary mission is advocacy on behalf of songwriters. The way this is worded, however, leaves room for interpretation permitting that spot to be occupied, as well, by an insider aligned with big publishing.
Notably absent: a spot for anyone to serve as a real voice for independent songwriters. MLC directors must either be representatives of music publishers (whose primary interest is their own bottom line), or songwriters themselves (most of whom are not trained to advocate on arcane issues of copyright law).
What can be done?
Submit comments and lobby for real representation on the MLC. The Copyright Office is now accepting public comment regarding designation of the MCL and its board of directors. https://www.copyright.gov/rulemaking/mma-designations
- Start a movement to appoint truly independent music publishers to the MLC board of directors.
- Start a movement to appoint truly independent songwriters to the MLC board of directors.
Pay very close attention and make sure to protect and register your works – under whatever rules the MLC eventually establishes.