Music

This article has been written by Akshaya P.A.

This article has been edited and published by Shashwat Kaushik.

Introduction

A glance through the history of interaction between new technology and the works of artists reveals that copyright law has often had to mutate and adapt to the changes brought in by emerging technology. A repeat of this event has been witnessed by way of the Music Modernisation Act, 2018. This Act seeks to transform the existing copyright regime in the US to overcome the challenges posed by digital streaming and address the other legal loopholes.

Download Now

A song dissected through the legal eye shows a layering of two sets of protection: protection afforded to the musical composition as a musical work and the mechanical rights for the sound recording.

Musical works and sound recordings in US Copyright Law

The US Constitution provides intellectual property protection for scientific and artistic works. Musical works were included as original works of authorship under the Copyright Act of 1831. With inventions that could create mechanical copies of musical compositions, appropriate changes were made to protect the rights of the composers to reproduce and distribute their work through the Copyright Act, 1909. The term of protection afforded to musical works is as follows:

YearTerm of protection
Before 1923Work in the public domain.
1923-1963If the copyright was renewed in the 28th year, the work is protected for a total of 95 years from publication. If the copyright was not renewed, the work is in the public domain.
1964-197795 years from publication.

“Sound Recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. Copyright protection was extended to sound recordings by way of an amendment in 1971. However, the amendment focused on non-interactive streaming (radio), creating ruptures in its wake.

This amendment created a disparity between legacy artists and other artists in terms of federal intellectual property protection. Legacy artists are those artists whose sound recordings were created prior to February 15, 1972. Legacy artists were adversely affected as they could not when various persons made unauthorised copies of their original works and distributed the same without paying the due royalty.

With the emergence of the internet as a formidable element in the distribution of protected works, the Digital Performance Rights in Sound Recordings Act, 1995, brought the making of digital copies and its distribution within the ambit of copyright protection. Royalties had to be paid by digital music streaming platforms at rates determined by the erstwhile body, the Copyright Royalty Board (CRB). However, the rights were not applicable to non-interactive music streaming. The passing of the Digital Millennium Copyright Act, 1998, is often described as overarching legislation, with the copyright owner having the upper hand in licensing transactions, as well as restraining the freedom of speech and expression. Hence, there is a need for balancing the rights of the copyright holder and those of the public, especially with regard to the burgeoning content creation industry.

The Music Modernisation Act, 2018 as a player in the US Copyright Regime

The Orrin G. Hatch-Bob Goodlatte Music Modernisation Act, 2018 popularly known as the Music Modernisation Act (hereinafter referred to as the MMA, 2018) endeavours to transform the current US copyright framework from obsolescence and tailor it to the requirements of the contemporary music industry. The issues addressed by this Act are as follows:

Licensing regime

The pre-MMA licensing regime enabled the exploitation of the music industry to a great extent, wherein the digital music providers made huge profits without having to pay just and fair royalties to the creators. When a digital music provider was going to use a work, it was required to file a Notice of Intent with the copyright owner or the copyright office (if the copyright owner cannot be located), seeking the issue of a compulsory license from the creator. The law placed a minimum requirement on the applicants to only exercise good faith in identifying the creators. This was exploited by digital streaming companies, wherein they filed Notice to Intent for works whose authors could not be identified.

The MMA 2018 brought in ‘blanket mechanical licensing’ for digital music providers. Instead of obtaining a separate license for each work, the blanket mechanical licensing will allow the providers to broadcast works available in a particular set by paying the appropriate fee.

This blanket mechanical licensing mechanism falls under the purview of a non-profit organisation called the Mechanical Licensing Collective (hereinafter the MLC). Governed by music publishers and other industry players, the MLC will be responsible for the maintenance of a musical works database, which will enable better identification and location of copyright owners. Mechanisms are also put in place to resolve disputes as to royalty rates and oversight as to unclaimed royalties. Disputes will now be determined by the ‘wheel’ approach, wherein judges would be randomly assigned to preside over negotiations, reducing the possibility for forum-shopping and bias.

Royalty rates

US Copyright Law differentiated between non-interactive and interactive digital music broadcasting services, with Section 114 of the Copyright Act only addressing the former, with interactive streaming left to be determined by negotiation between parties. The MMA, 2018 now vests the responsibility of fixing royalty rates with the Copyright Royalty Board. The CRB will determine the rates based on a willing buyer/willing seller standard. The change in measurement standard aims to simplify the royalty calculation process and bring it close to the market value.

Legacy artists

The MMA 2018 has streamlined the protection available to pre-1972 or legacy works and payment of royalty for digital streaming. The MMA, 2018 is a combination of three legislations, and the provisions relating to Legacy artists were enclosed in the Classics Protection and Access Act. The position prior to the MMA, 2018 did not provide for the right of public performance. With the MMA, 2018, the gap between the legacy artists and post-1972 artists has been reduced to a great extent, with pre-1972 sound recordings acquiring the same rights as post-1972 sound recordings.

Further, the royalty distribution scheme has been revamped, taking away the reliance on agreements between the artist and the record label, and 50% of the royalty will go to the record label and the rest to the artists via license issued to digital music providers. For sound recordings published within 1923–1946 and 1947–1956, a copyright term of 100 years and 110 years is provided to compensate for the loss of earnings due to the prior legal position. The term of protection is expressed as 95 years + transition period after publication.

YearTransition period provided
Before 19233 years from the date of enactment of MMA, 2018
1923 – 19465 years
1947 – 195619 years
1957 – 197295-110 years

Music producers

The MMA regime envisages the distribution of royalty to music producers and sound engineers as well and guarantees them the statutory right to royalties. Initially, distribution was to be carried out on a good faith basis.

Is the MMA 2018 really the panacea it claims to be

With the introduction of the blanket license scheme, the MMA, 2018 similar to its predecessors, has created disparities. It encompasses the right to public performance of musical works but excludes the same for sound recordings, leaving the digital streaming platforms to obtain authorisation separately, complicating the process. Furthermore, non-interactive streams are still left in the lurch, and artists are denied the benefits of modernisation of the law in this respect.

The practical application of the MMA (2018) has invited criticism on multiple fronts, as the claims for protection are not verified, allowing multiple conflicting claims. Insufficient awareness among minorities poses challenges to the inclusivity of the Act. In addition to this, it is claimed that the transition period afforded to the legacy works is excessive under certain divisions.

The working of the MLC is also questioned to a great extent, especially in regards to unclaimed royalties and orphaned works. The MLC is composed of music producers and songwriters, and it is argued that the former hold greater leverage in choosing the latter to be a part of the MLC. The rights of the music producers are also subject to the direction of the artists that they work with.

Conclusion

The Music Modernisation Act, 2018 widens the scope of copyright protection to anomalies created by the digital streaming industry. Establishing an independent body, the MLC, to streamline the licensing process for digital streaming and ensure the flow of just and fair royalties to those involved in the creation of musical works and sound recordings. It sets aside arbitrary disparities and bestows statutory rights on other players in the music industry for the first time in history. The MMA, 2018 is a reminder for other legal systems to bring about international uniformity with regard to the copyright regime and accommodate contemporary changes.

References

LEAVE A REPLY

Please enter your comment!
Please enter your name here