The New Music Modernization Act (Mostly) (Finally) Gets It RightSeptember 26, 2018
Yesterday, the House of Representatives passed a new and improved version of the Music Modernization Act, following the Senate’s lead from last week. We had expressed strong reservations about the earlier iterations of this bill, and its impact on the public domain for sound recordings. We’re happy to say that after extensive negotiations spearheaded by Senator Ron Wyden, the new version of the bill brings these works more fully into line with with the existing copyright system for legacy works and finally allows these recordings to enter the public domain. The bill now heads to the President’s desk.
Here’s what the new version of the bill does:
1. Creates a public domain in sound recordings
Under current law, sound recordings made prior to 1972 aren’t protected under federal law; instead, they’re protected under a patchwork of vague, contradictory, and confusing state laws. Federal law isn’t scheduled to kick in and preempt those state laws until 2067, and because many state terms are indefinite, that means that these works won’t be nationally in the public domain until that time. It’s hard to overstate how difficult this makes preservation of older recordings, particularly those on fragile physical media. It’s impossible to know how many of the legacy recordings have been damaged or lost to physical degradation, because they were still under copyright, and the law surrounding their preservation was unclear.
The new Music Modernization Act sweeps away this old system and replaces it with full federal protection. The terms are still much longer than ideal: the earliest recordings won’t hit the public domain until January 2022, while many others will be locked away for a total of 110 years. But the bill also creates, for the first time, a true public domain in sound recordings. Once these works fall into the public domain, they will be fully available to use, preserve, remaster, mix, and distribute without having to get a license.
2. Allows for non-commercial uses of legacy recordings before their term of expiration
The other important function of the bill is that, for the first time, users will now have a process by which they can use sound recordings, even when the rights holder cannot be found. Anyone wishing to make a noncommercial use of a recording that is no longer commercially available can submit a notice of use at the U.S. Copyright Office. Rights holders have 90 days to refuse the notice (though it’s important to note that even if they do object to the use, users will still have a fair use defense available to them). This means that projects which utilize the oldest and most obscure recordings — such as native Hawaiian music, field recordings from archaeological digs, or folk music from the turn of the 20th century — can begin to make these works available online on a scale never before seen.
3. Ensures that artists are fairly compensated for use of their recordings
Finally, the bill fixes a critical flaw in how royalty payments are made. Currently, payments for the use of pre-72 recordings are made directly to labels. How much of this money makes it down to artists is (to put it mildly) an opaque issue.
The Music Modernization Act overhauls this system by directing services to pay SoundExchange, which then splits the money 50/50 between artists and labels. This should be a significant improvement for many vulnerable artists, who now enjoy a split that is identical to their modern counterparts.
It bears repeating that none of this would have been possible without the advocacy of Senator Wyden, as well as the tremendous efforts by sound archivists, consumer advocates, preservationists, and more. The final bill is an example of how hard work and good policy can ensure that the entire copyright ecosystem — and not just a few interests — are treated fairly under the law.
Image credit: H. Michael Karshis