Posted: August 9th, 2018
By: Matthew Hooker, Summer Blogger
Copyright laws may be getting a major overhaul soon. On June 28, 2018, the Senate Judiciary Committee approved a revised and amended version of the Music Modernization Act. The Act, if passed, will likely bring about the most dramatic changes to U.S. music copyright law since the Copyright Act of 1976. The House of Representatives already passed the bill in April 2018, so passage by the full Senate is the last big step before it lands on the president’s desk.
The purpose of the Act is to modernize and improve issues raised under Section 115 of the Copyright Act. This section addresses royalties (known as “mechanical royalties”) paid to the composer and/or publisher of a song, but not the artist who actually records and performs the song. Mechanical royalties were later expanded to include digital copies and streaming of music. However, a major problem with this section is that it requires a person seeking to use a song to give notice to each individual copyright holder. In the modern digital age, this is quite a complicated task. As David Oxenford puts in:
“[T]he process breaks down in dealing with interactive streaming services trying to clear the rights to the hundreds of thousands of musical compositions underlying the songs in their catalog – especially as many of these compositions may have multiple composers and . . . as there is no central database that lists all the copyright holders in each musical composition.”
The Act would resolve these issues by creating blanket licenses for digital music providers and by establishing a nonprofit collective or clearinghouse responsible for offering and administering the licenses. The Act would permit the creation of a public, low-cost, central database for all music copyrights. However, the Act still fails to remedy a long-standing issue with the existing Copyright Act, namely, that terrestrial radio stations currently do not have to pay artists and record companies to play their songs on the air. A provision that would solve this issue was removed in order to gain support from broadcasters who have opposed any such changes.
The Act has received broad, bipartisan support within Congress and from both distribution platforms and artists such as Richard James Burgess, Little Big Town, and Jason Mraz. But the Act still faces several hurdles. For instance, the nomination of Brett Kavanaugh to the U.S. Supreme Court may take up much of the Senate’s attention, pushing the passage of the Act to the back burner. If the full Senate does not take up the bill before this Congressional term ends, then the legislative process would have to start from the beginning again after the fall midterm elections. Also, several senators, including Ted Cruz, have expressed reservations about the current version of the Act, although Cruz did vote to let the Act go forward. Several others within the music industry are also seeking to amend the Act further before it goes before the full Senate.
Although there are still steps left, many are optimistic about the Act itself and its final passage. Stephen Tyler of Aerosmith perhaps had the strongest take on the Act, saying that with its passage, “[j]ustice will finally be served!”
* Matthew Hooker is a second-year law student at Wake Forest University School of Law, and is a staff member on the Wake Forest Law Review and a member of the Transactional Law Competition Board. He holds a Bachelor of Arts in Communications from Thomas Edison State University and is a native of Gaithersburg, Maryland.