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The Senate just passed a major copyright bill – The New Music Modernization Act

The Senate just passed a major copyright bill – The New Music Modernization Act
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In the end, getting together the Music Modernization Act might have been harder than writing a hit song. But after years of trying to get copyright legislation passed on Tuesday (Sept. 18), it finally happened, with now both the Senate and the House unanimously passing the legislation. Although, the legislation is still not a done deal until the Senate’s version is approved by the House of Representatives and then signed into law by President Donald Trump. If and when that happens, record labels, publishers, songwriters and artist hope that the legislation proves as lucrative as a hit song.

“This is the most important piece of legislation in a generation,” Sen. Lamar Alexander (R-Tenn.) said on the Senate floor after the bill was approved. “It makes sure songwriters get paid and get paid fairly.”

“The Internet changed the music industry just like it has changed other industries… but copyright law didn’t keep up,” he added. In fact, “Copyright laws were way out of date and hadn’t been modified since the days of the piano roll.”

A modern system for paying songwriters

US law provides two different types of copyright protection that apply when someone streams a song online. There’s protection for the composer or songwriter, and there’s a separate copyright for the music recording. Services like Pandora and Spotify typically need licenses for both types of rights in order to stream a song online.

Right now, the system for licensing the songwriters’ copyright (known as “mechanical rights” for historical reasons) is a mess. Streaming services have had trouble identifying the owners of music rights, which has led to songwriters not getting paid and streaming services periodically getting sued for non-payment.

The Music Modernization Act aims to establish a modern system for licensing mechanical rights. It creates a new national database that will aim to cover all copyrighted music in the United States. If all goes according to plan, this new organization will offer streaming services “one stop shopping” for getting songwriters’ licenses for all the songs they want to stream, with the database helping to get the funds to the appropriate songwriters and music publishers.

This would make the licensing of mechanical rights more like the system used for licensing yet another music-related copyright: the right to perform music publicly. If you own a concert hall or other venue where music is played publicly, you sign licensing agreements with three national organizations—ASCAP, BMI, and SESAC—which together have arrangements with the vast majority of the nation’s music publishers.

That gets venues a blanket license to play any music they want to. It’s the job of ASCAP, BMI, and SESAC to figure out which music gets performed most often and divvy up the revenue accordingly. Companies that stream music online would like to have a similar arrangement, and the Music Modernization Act aims to give it to them.

Federalizing pre-1972 music recordings

The legislation also changes how copyright law treats sound recordings made prior to 1972. Prior to 1972, the composer of a song could get copyright protection, but a recording artist couldn’t get copyright protection at all. Instead, song recordings were covered by a patchwork of state-level laws, some of which gave artists copyright-like protection, and others did not. Under existing federal law, these state-level laws will eventually be preempted but not until 2067.

When the House passed its version of the Music Modernization Act earlier this year, digital rights groups Public Knowledge and the Electronic Frontier Foundation opposed it—primarily because they didn’t like how the legislation dealt with these pre-1972 recordings. The bill would have extended full copyright-like protection to these works—without changing that 2067 expiration date. That means a song recorded in 1927 would effectively get 140 years of protection, vastly longer than the 95 years current law gives to books, movies, and other works published around the same time.

When the agreement reached the Senate, Sen. Ron Wyden (D-Ore.) pushed for changes to this portion of the legislation—and he made significant progress. According to Public Knowledge’s Ryan Clough, works published before 1923 would expire three years after the legislation was passed. Works published between 1923 and 1946 would get the same 95-year term as other types of work—albeit with an extra five-year “transition period” following the 95-year term. Works published between 1947 and 1956 would get a total of 110 years of protection, while works published between 1957 and 1972 would expire in 2067—the same as under current law.

That’s a long time, but it’s arguably an improvement over existing law, where a song recorded in 1927 gets 140 years of state quasi-copyright protection before officially falling into the public domain in 2067.

Almost everyone agrees that having the rules for these recordings be governed by a patchwork of state laws makes no sense. And while advocates of the public domain aren’t thrilled with century-long copyright terms, some view this as the best compromise they’re likely to get.

Share with Friends

In the end, getting together the Music Modernization Act might have been harder than writing a hit song. But after years of trying to get copyright legislation passed on Tuesday (Sept. 18), it finally happened, with now both the Senate and the House unanimously passing the legislation. Although, the legislation is still not a done deal until the Senate’s version is approved by the House of Representatives and then signed into law by President Donald Trump. If and when that happens, record labels, publishers, songwriters and artist hope that the legislation proves as lucrative as a hit song.

“This is the most important piece of legislation in a generation,” Sen. Lamar Alexander (R-Tenn.) said on the Senate floor after the bill was approved. “It makes sure songwriters get paid and get paid fairly.”

“The Internet changed the music industry just like it has changed other industries… but copyright law didn’t keep up,” he added. In fact, “Copyright laws were way out of date and hadn’t been modified since the days of the piano roll.”

A modern system for paying songwriters

US law provides two different types of copyright protection that apply when someone streams a song online. There’s protection for the composer or songwriter, and there’s a separate copyright for the music recording. Services like Pandora and Spotify typically need licenses for both types of rights in order to stream a song online.

Right now, the system for licensing the songwriters’ copyright (known as “mechanical rights” for historical reasons) is a mess. Streaming services have had trouble identifying the owners of music rights, which has led to songwriters not getting paid and streaming services periodically getting sued for non-payment.

The Music Modernization Act aims to establish a modern system for licensing mechanical rights. It creates a new national database that will aim to cover all copyrighted music in the United States. If all goes according to plan, this new organization will offer streaming services “one stop shopping” for getting songwriters’ licenses for all the songs they want to stream, with the database helping to get the funds to the appropriate songwriters and music publishers.

This would make the licensing of mechanical rights more like the system used for licensing yet another music-related copyright: the right to perform music publicly. If you own a concert hall or other venue where music is played publicly, you sign licensing agreements with three national organizations—ASCAP, BMI, and SESAC—which together have arrangements with the vast majority of the nation’s music publishers.

That gets venues a blanket license to play any music they want to. It’s the job of ASCAP, BMI, and SESAC to figure out which music gets performed most often and divvy up the revenue accordingly. Companies that stream music online would like to have a similar arrangement, and the Music Modernization Act aims to give it to them.

Federalizing pre-1972 music recordings

The legislation also changes how copyright law treats sound recordings made prior to 1972. Prior to 1972, the composer of a song could get copyright protection, but a recording artist couldn’t get copyright protection at all. Instead, song recordings were covered by a patchwork of state-level laws, some of which gave artists copyright-like protection, and others did not. Under existing federal law, these state-level laws will eventually be preempted but not until 2067.

When the House passed its version of the Music Modernization Act earlier this year, digital rights groups Public Knowledge and the Electronic Frontier Foundation opposed it—primarily because they didn’t like how the legislation dealt with these pre-1972 recordings. The bill would have extended full copyright-like protection to these works—without changing that 2067 expiration date. That means a song recorded in 1927 would effectively get 140 years of protection, vastly longer than the 95 years current law gives to books, movies, and other works published around the same time.

When the agreement reached the Senate, Sen. Ron Wyden (D-Ore.) pushed for changes to this portion of the legislation—and he made significant progress. According to Public Knowledge’s Ryan Clough, works published before 1923 would expire three years after the legislation was passed. Works published between 1923 and 1946 would get the same 95-year term as other types of work—albeit with an extra five-year “transition period” following the 95-year term. Works published between 1947 and 1956 would get a total of 110 years of protection, while works published between 1957 and 1972 would expire in 2067—the same as under current law.

That’s a long time, but it’s arguably an improvement over existing law, where a song recorded in 1927 gets 140 years of state quasi-copyright protection before officially falling into the public domain in 2067.

Almost everyone agrees that having the rules for these recordings be governed by a patchwork of state laws makes no sense. And while advocates of the public domain aren’t thrilled with century-long copyright terms, some view this as the best compromise they’re likely to get.