The Creation of the Music Modernization Act

The MMA represents years of dedicated work by members of Congress, as well as negotiation and cooperation between a wide range of creators and business interests. The Copyright Office worked closely with Congress during these discussions, building on its foundational policy reports, which closely examined the issues facing the music industry and proposed statutory reforms. It is no surprise that the passage of the MMA—the result of extensive collaboration—was almost universally praised.

The MMA is a bill whose time had come. Music law is complicated. Changing technology had left certain gaps in protection and compensation for some creators. These gaps go as far back as the early 20th century, when technology began to significantly change the way composers, lyricists, and publishers distributed musical works, which changed the way that people enjoy music. One of the earliest changes came in the form of piano rolls—a mechanical form of notating music so it could be performed automatically by a player piano. Over time, newer media—from wax cylinders and vinyl records to various formats of magnetic tape, like cassettes and eight-track cartridges, to compact discs—offered new ways for the public to experience music. These new recording methods allowed people far and wide to enjoy particular musical performances without being physically present during the actual performance.

Congress saw the need to help address the changing landscape of music and in 1909 created new copyright protections to address these technological changes, as well as a statutory licensing system, which requires users to pay a set rate when they make and distribute musical works.

But it was not until 1972 that these sound recordings were protected by federal copyright law. This federal protection, however, was extended only on a prospective basis to sound recordings fixed on or after February 15, 1972, and, until more recently, did not include any public performance right. This left owners of rights in sound recordings made before 1972 reliant on a patchwork of state-level laws for protection. While Congress updated the laws covering sound recordings with the Digital Performance Right in Sound Recordings Act of 1995 and Digital Millennium Copyright Act of 1998, the evolution of technology continued to test the music copyright system.

The late 20th and early 21st centuries saw the rise of the internet and the advent of online music distribution and streaming services using pre-internet laws. Specifically, the rise of interactive streaming services such as Spotify or Apple Music exposed a significant gap in the licensing system for musical works. These services typically offer tens of millions of songs in their repertoires to listeners at their fingertips. But before the MMA, digital music services were required to either negotiate with copyright owners or engage in statutory licensing on an individual, song-by-song basis, for the right to reproduce and distribute musical works. This was complicated. Sometimes authorship information on the track was incomplete. The scale of these streaming services also made it difficult to figure out whom to pay, and for copyright owners, to figure out who owed them royalties.

Separately, the advent of internet and satellite radio tested the limits of rights available to legacy artists of pre-1972 sound recordings, resulting in an inequity where a recording from 1969 might be played without compensation to the recording artist and label, whereas an artist recording a cover version of that same song in 1999 was entitled to royalties.

In light of this situation, there was broad agreement that the music licensing system needed an update. Hence the MMA was born.

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BEGINNING THE PROCESS OF UPDATING THE LAW

Starting in 2013, the House of Representatives Committee on the Judiciary, as part of a holistic review of copyright law, took a close look into music law. In addition to Washington, DC, the committee held public hearings in Nashville, Silicon Valley, and Los Angeles. Judiciary Committee leadership used the testimony and evidence from those sessions to begin the process of updating the law.

BRINGING THE INDUSTRY TOGETHER

Members of Congress came together with representatives from the creative communities, music industry, and digital music services to find compromises on thorny issues of music copyright, eventually focusing on three areas—facilitating a blanket licensing system for interactive streaming; creating a federal remedy and statutory royalty structure for owners of pre-1972 recordings, along with limitations such as fair use; and codifying a process for music producers, sound mixers, and sound engineers to receive royalties their contributions to sound recordings.

COMPROMISE AND HARD WORK

Perhaps the trickiest issue involved the plan to update the mechanical license for uses of musical works for the digital streaming age. In late 2017, following much stakeholder discussions and with a broad coalition of support, Representative Doug Collins introduced a bill to convert the previous mechanical license to a blanket license. Collins’ bill, as amended, included work by earlier bills previously introduced by Representatives Nadler, Crowley, and Issa and Senator Wyden to form the basis of the version of the MMA that was eventually enacted.

SUPPORT FROM BOTH SIDES—THE ROAD TO PASSAGE

Both the House and Senate Judiciary Committees highlighted the consensus growing around the MMA. Artists including Smokey Robinson, Justin Roberts, Josh Kear, Aloe Blacc, Mike Clink, Tom Douglas, Booker T. Jones, and Dionne Warwick testified to creators’ support for the bill. Blacc testified that the licensing reform was needed “to make sure that songwriters and music publishers are paid mechanical royalties that are currently being unpaid by the streaming companies.”

“Unlike many things in Washington, DC, these days, this legislation actually has bipartisan support,” Blacc said. “Further defying the odds, the music and technology industries have also come together in support of it.”

Jones, who played on many popular R&B and soul recordings before recordings were covered by the Copyright Act, testified that “because of a quirk in the law, many of our most timeless treasures … are dismissed and disrespected as not meriting compensation to the featured artists, non-featured artists, and producers,” but that the provisions of the MMA addressing pre 1972 recordings would rectify that injustice.

The problem was particularly acute, according to Jones, for recording artists who forty-plus years later are unable to make a living by making and releasing new recordings and touring.

“Time is running out for many of these legacy artists,” Jones testified.

Following further negotiation by members during the legislative process, the House of Representatives passed the bill on June 20, 2018, and the Senate passed it on September 18, 2018. It was signed into law on October 11, 2018. The vote was unanimous in both chambers.