As reported in a previous post, Congress spent a portion of the last year considering the Music Modernization Act (MMA), a sweeping piece of legislation meant to bring the world of music licensing into the era of online streaming services. In a rare show of bipartisanship, the MMA sailed through both houses of Congress, and was signed into law by President Trump last fall. This article discusses the key features of the new law.
Blanket Licenses and Royalty Rates
Before the MMA’s passage, streaming services negotiated licenses on an inconsistent basis, and often filed bulk Notices of Intention to use works with the Copyright Office. This haphazard practice created great uncertainty for streaming services and artists: the former faced the very real possibility that they were infringing upon copyrights and providing unlicensed work, while the latter could find themselves uncompensated for the use of their intellectual property.
Under the MMA, a process of blanket licensing has been established. Most works will now be subject to a blanket compulsory license, although the MMA still allows for parties to negotiate their own licensing terms if they so desire. A streaming service need only apply for such a license, and, once granted, the streaming service can make the work available without the fear of copyright infringement looming over it.
The MMA also sets a new standard for establishing royalty rates. Before, the royalty rate was determined by a formula having little to do with prevailing market rates. But now, a copyright royalty judge will determine the rate that would have been negotiated in the marketplace between a “willing buyer and a willing seller.” In reaching this decision, the judge must consider “economic, competitive and programming information” submitted by the parties. Section 102(c)(1)(F).
The Musical Licensing Collective
The MMA creates a body known as the Mechanical Licensing Collective (MLC) to administer this new licensing regime. The MLC will collect royalties from streaming services, pay royalties to artists, and assist in identifying the owners of any and all rights in a particular work. The MLC will be a non-profit entity, created and supported by copyright owners and funded by the payment of licensing fees. The composition of the MLC will be reviewed every five years. It will be overseen by a board of directors consisting of both industry and songwriter representatives.
One of the more interesting aspects of the MLC is the requirement that it establish and maintain a musical works database that will match artists and copyright owners with a particular work. This database will be fully searchable and publicly available. The initial creation of this database will be a formidable task for the MLC, and for the music industry.
Pre-1972 Sound Recordings
The final version of the MMA also incorporates portions of the Classic Protection and Access Act, extending full copyright protection to sound recordings, not already in the public domain, created on or before February 15, 1972. Service providers will now have to pay royalties to copyright owners when these pre-1972 sound recordings are streamed.
The MMA will bring interesting changes to the music industry, and, as with any new law, there will likely be unforeseen consequences of its enaction, whether for good or ill. However, the MMA has been greeted with approval by all sides of the industry, and will hopefully be a strong step towards fully modernizing the licensing and copyright of musical works in the age of streaming services.