Translating The Music Modernization Act

7:39am Sun May 6, 2018

“a mainstream conservative”

(aimed at independent songwriters but the more you care about music, the more important it is for you to read. I’m not a lawyer, but that doesn’t stop people from getting elected to congress and writing laws like this. But I did spend a full day and night reading and trying to understand a major part of this bill, and I can’t help but feel like that’s more than most of the entities who claim to protect and treasure America’s artists did. TL;DR)

On October 21, 2016, former RIAA Attorney Karyn Temple Claggett became acting Register of Copyrights during the “search” for a new permanent office holder.

The following spring, the House of Representatives voted 378-48 in favor of H.R.1695 (introduced by Bob Goodlatte) that, if approved by the Senate, will make Register of Copyrights a position that is filled by presidential appointment* with Senate confirmation, rather than appointed by the Librarian of Congress—a policy that has been in place since the establishment of the Copyright Office, and impose a maximum term of 10 years.

A year to the day later, the Senate received H.R.5447, the Music Modernization Act, unanimously passed by the House (where it was introduced by Goodlatte) the day before. Here are some of the major points over which your representative in congress, your performing rights org, songwriter advocate groups, and Steven Tyler have held hands with the RIAA, the NAB, Apple, Google, Spotify, and a motley crew of others.

These are all just some of the changes to be made to section 115 (of title 17, the copyright law) alone:

  1. The board of directors for a mechanical licensing collective will be designated by the (presidentially-appointed?) Register, and must be approved by the largest publishers/labels. (d)(3)(A)(ii)
  2. If you don’t like the individuals selected to direct this collective (let’s call them the mlc), you can let the Register know in five years. (d)(3)(B)(ii)
  3. The mlc must comprise ten publishers, four songwriters who own all their work (for perspective, one of the first artists to own his own master recordings was Ray Charles at a time when Frank Sinatra did not), and one single advocate for the rest of us, who doesn’t get a vote. (d)(3)(D)(i)(I, II, and V)
  4. The mlc will, with their six tie-breaking publishers, create an operations advisory committee made up of publishers (50%) and digital music providers appointed by the digital licensee coordinator, who is appointed by the Register on approval by the largest digital music providers (50%). (d)(3)(D)(iii) and (d)(5)(A)(ii).
  5. The mlc will create an unclaimed royalties oversight committee made up of five copyright owners who may or may not be songwriters and five songwriters who may or may not own their recorded work. (d)(3)(D)(iv)
  6. Disputes will be resolved by a dispute resolution committee, a very similar group to the one overseeing the unclaimed royalties, designated of course by the mlc. I didn’t see anything declaring that all three of these committees have to consist of different individuals from each other or even from the mlc itself. Doesn’t mean it’s not there. But I bet it’s not there. (d)(3)(D)(v)
  7. The mlc will create and maintain a database of songs and recordings of those songs. All of them. They will “engage in efforts to identify” recorded songs and locate the copyright owners. The efforts are not further specified in any way. (d)(3)(E)(i)
  8. If you are an individual copyright holder, it’s your individual responsibility to make sure your info is in the database. (d)(3)(E)(iv)
  9. Whoever can claim the most royalties from digital music providers also get the most of the royalties left unclaimed after 3 years. The 2nd wealthiest corporation gets the next biggest slice. And so on. (d)(3)(H)(i) and (d)(3)(J)(i)(II)
  10. The five owners who may or may not be songwriters and the five songwriters who may or may not own their recorded work (the unclaimed royalties oversight committee), all appointed by the six tie-breaking publishers (the mlc), will determine how unclaimed royalties are distributed, subject to the mlc itself and in accordance with the next point, 11. (d)(3)(J)(ii)
  • The wealthiest songwriters on the biggest labels get the biggest cuts of unclaimed royalties (for songs they didn't write) collected by the label, amounting to no less than half of what the label made during the royalty distribution period from the stuff the artist wrote. (d)(3)(J)(iv)(I and II)
  • 11. If you can afford it, you can hire a professional auditor to check the numbers. If they don't add up, they'll pay you what you're owed. Just you. [(d)(3)(L)(i)(VI)][23]

    *[UPDATE Dec 24 2018] “from an 11th hour addition to the law, which was made for President Trump; in signing the law, he noted that the collective’s board of directors are ‘inferior officers under the Appointments Clause of the Constitution.'

    “Consequently, he said, ‘the Librarian [of Congress] must approve each subsequent selection of a new director. I expect that the Register of Copyrights will work with the collective, once it has been designated, to ensure that the Librarian retains the ultimate authority, as required by the Constitution, to appoint and remove all directors.'”