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AN EVALUATION of the MUSIC MODERNIZATION ACT Bronté

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AN EVALUATION of the MUSIC MODERNIZATION ACT Bronté STREAMING INTO THE TWENTY-FIRST CENTURY: AN EVALUATION OF THE MUSIC MODERNIZATION ACT Bronté Story1 I. AN INTRODUCTION TO THE MUSIC MODERNIZATION ACT The Music Modernization Act (MMA) was passed unanimously by the House and Senate and signed into law in October of 2018 by President Donald Trump.2 Its overall purpose is to modernize United States copyright law by bringing it into the twenty-first century.3 One of the most important aspects of this Act is it sets out to create a Mechanical Licensing Collective (“MLC”), which will be funded by digital music providing services that will in turn be granted blanket mechanical licenses for “interactive streaming or digital downloads of musical works.”4 The MLC is one of the main outcomes of Title I of the MMA, which embodies three different titles.5 Title I’s overall purpose is to assist in the music licensing industry as more streaming services continue to develop.6 Before this revision, streaming services required individual licenses 1. Bronté Story is a 2020 candidate for Juris Doctor from SMU Dedman School of Law. She received a Bachelor of Arts in Combined Journalism-Political Science from University of Arkansas – Fayetteville in 2017. 2. Dave Davis, Music Modernization Act of 2018 Becomes Law, COPYRIGHT CLEARANCE CTR.: COPYRIGHT BLOG (Oct. 11, 2018), http://www.copyright.com/blog/music-modernization-act- introduced-house-senate/. 3. See id. 4. Overview of the Music Modernization Act, https://lieu.house.gov/sites/lieu.house.gov/files/Overview%20of%20the%20Music%20Moderniz ation%20Act.pdf (last visited Mar. 7, 2019). 5. See Orrin G. Hatch—Bob Goodlatte Music Modernization Act, COPYRIGHT.GOV, https://www.copyright.gov/music-modernization/ (last visited Sep. 23, 2019). 6. See Davis, supra note 2. 1 and needed to notify the copyright holder or the copyright office to pay royalties.7 With this new process, streaming services can receive blanket licenses for their use of music and, along with the creation of the MLC, this licensing process becomes more efficient and user-friendly as it concerns streaming services.8 Assuming the MLC works as it should and providers comply with this new system, providers will also be shielded and would “no longer vulnerable to lawsuits” alleging underpayment of royalties, which has been a huge issue with the implementation of previous copyright law.9 Title II is known as the CLASSICS Act, standing for the Compensating Legacy Artists for their Songs, Services, and Important Contributions to Society.10 This title provides that recordings prior to 1972 will be protected, meaning songwriters and artists will now receive royalties for streaming of their work.11 This is an important contribution because it gives copyright holders the opportunity to receive compensation for others using their work when they may no longer be compensated through other avenues, such as live performances or creating new musical works.12 7. See Bill Rosenblatt, Here Are the Loopholes Closed by The Music Modernization Act, FORBES (Oct. 11, 2018), https://www.forbes.com/sites/billrosenblatt/2018/10/11/music-modernization- act-now-law-leaves-one-copyright-loophole-unclosed/#761480a37272. 8. See Dani Deahl, The Music Modernization Act has been signed into law, THE VERGE (Oct. 11, 2018), https://www.theverge.com/2018/10/11/17963804/music-modernization-act-mma- copyright-law-bill-labels-congress. 9. See Devin Coldeway, Copyright Compromise: Music Modernization Act signed into law, THE CRUNCH (Oct. 11, 2018), https://techcrunch.com/2018/10/11/copyright-compromise-music- modernization-act-signed-into-law/. 10. See Deahl, supra note 8. 11. See id. 12. See id. 2 Title III’s main contribution is known as the Allocation for Music Producers (AMP) Act.13 The AMP Act allows producers and music engineers to collect royalties from the digital transmissions of their work.14 Title IV is known as the “Severability Clause” because it adds a clause to the MMA allowing an amendment for anything in the Act that is found unconstitutional.15 Title IV is a discussion beyond the scope of this article because it provides a single clause that merely allows the Act to be amended under the specific circumstance of being unconstitutional, and beyond that, does not provide any new copyright provisions applicable to the music industry. This essay aims to provide a thorough evaluation of the Music Modernization Act, starting with the historical background of copyright law as it pertains to music, and how it has evolved as technological advances infiltrate the music industry. Next, it will analyze all three main titles of the Music Modernization Act, along with minor criticisms regarding the Act. In conclusion, this paper will portray how this Act “offers a simple, straightforward solution” for streaming services and others in the music industry in this digital age.16 The MMA aims to update music copyright laws by “creating a new compulsory blanket licensing system for mechanical works,” primarily the MLC.17 Furthermore, it will update the “rate standards applicable to music licensing, modifying the rate setting process in the Southern District of New York, and providing copyright 13. See id. 14. See id. 15. See H.R. REP. NO. 115-1551 (2018) at 27. 16. See Coldeway, supra note 9. 17. H.R. REP. NO. 115-1551 at 1. 3 royalties to pre-1972 artists.”18 Lastly it will ensure that “producers, mixers, and sound engineers are able to receive compensation for their creativity.”19 II. A HISTORICAL OVERVIEW OF MUSIC AND COPYRIGHT LAW: ITS EVOLUTION ALONGSIDE MODERN TECHNOLOGY IN THE MUSIC INDUSTRY. Over the past three and a half centuries, the idea of protecting one’s creative work began weaving its way into copyright law in the United States, particularly with the protection of written and performed musical works.20 One of music’s first physical forms was the creation of sheet music.21 Originally, sheet music was written by the composer and then performed for audiences, but after the invention of the printing press, music became available for distribution and purchase.22 This inevitably allowed those other than the original composer the opportunity to perform it.23 By 1710, copyright law established that an author’s ownership in copyright is protected for a fourteen-year fixed term and renewable for an additional fourteen years if the author is alive upon the first expiration.24 The fourteen-year concept was established in order to prevent booksellers and other authors of creative works from holding a monopoly, and created the now well-known concept of creative works entering into public domain once copyright protection 18. Id. 19. Id. 20. See The History of Music Distribution, MN2S.COM (Nov. 18, 2015), https://mn2s.com/news/label-services/the-history-of-music-distribution/. 21. See id. 22. See id. 23. See id. 24. See Copyright Timeline: A History of Copyright in the United States, ASSOCIATION OF RESEARCH LIBRARIES, https://www.arl.org/focus-areas/copyright-ip/2486-copyright- timeline#.XIG1c1NKiqB (last visited Mar. 7, 2019). 4 expires.25 The Copyright Act of 1790 allowed authors the right to publish and print their literary works, and by 1871, copyright registration had moved from individual district courts to the Library of Congress Copyright Office.26 One benchmark revision to copyright law was established in the Copyright Act of 1909.27 This revision “broadened the scope of categories protectable by copyright” and extended copyright protection to twenty-eight years with the option to renew for an additional twenty-eight years as opposed to the original fourteen.28 By the 1970’s, the music industry not only involved the creation of music on paper, but added physical recordings into the mix.29 Vinyl became “durable” and “popular” during the 1930’s and dominated the music industry through the 1970’s until 8-track tapes took over in the 80’s and 90’s.30 With the enhanced technology of recordings in music and television, Congress enacted the Copyright Act of 1976.31 Its revision “preempted all previous copyright law.”32 This provision extended the term of protection for copyrighted works to the life of the author plus fifty years.33 The repeated extension of copyright protection is likely due to the increased lifespan of artists, the physical forms music was beginning to take on, as well as the increased ability to mass produce 25. See id. 26. See id. 27. See id. 28. See id. 29. See History of Music Distribution, supra note 20. 30. See id. 31. See Copyright Timeline, supra note 24. 32. Id. 33. Id. 5 and distribute musical works.34 The 1976 Act also allowed works created through work-for-hire protection for seventy-five years.35 However, in 1992, Section 304 of Title 17 was amended, which made copyright renewal automatic and curtailed “entry of works into the public domain for works protected” prior to 1978.36 In addition to adjusting the term of copyright protection, the 1976 Act established a copyright holder’s exclusive rights, a basis for infringement, and elements of fair use, and the protection was extended to unpublished works.37 As to technology, Section 108 of the Copyright Act was added to allow library photocopying without the copyright owner’s permission, as long as it was for the purpose of scholarship, preservation, or interlibrary loans.38 As copies became readily available and educators could make copies for educational purposes, there became an exception to the general rule that authors had the exclusive right to copy and distribute their work.39 This also revolves around the concept of fair use.40 As distribution became easy and accessible through inventions such as the Xerox machine, individuals, particularly educators and those in professional settings, were making copies of protected works in violation of the 1909 34.
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