The Music Modernization Act: We Can & Must Do Better
By Phil Galdston & David Wolfert
"Any law of this kind must first and foremost protect the work's creator and owner, not the administrator."
The Music Modernization Act (MMA) is a huge piece of copyright legislation that would shape the way music creators are paid for the foreseeable future. As songwriters, composers and independent publishers, we join many of our colleagues in expressing our appreciation for the efforts of legislators and members of our community to find solutions to the serious problems facing music creators.
The MMA offers some true and constructive change, and we can accept the "grand bargain" that is its foundation: In return for a kind of immunity for past acts of infringement, digital music services would now pay for every single performance of every track, identified or not. That said, some crucial elements of the bill are of concern and some remain unresolved.
The developing trend in music writing, publishing and distribution is towards independence and market fragmentation. Instead of acknowledging and addressing this trend, the legislation embraces and enshrines some of the old practices of the music business. Today, tens of thousands of music creators control their own work, its exploitation and its administration, eschewing the old paradigms and larger institutions of the music business. So any law of this kind must first and foremost protect the work's creator and owner, not the administrator. Here are some specific points we think merit clarification and amendment.
First, the MMA would establish a new Collective that would receive and distribute billions of dollars of mechanical royalties, oversee a new database of musical works, divide up the royalties from unidentified works and essentially control the most important decisions about how all of these important functions would be handled. As currently drafted, publishers would hold 10 seats on the Collective's board, while writers would hold four. Why? Shouldn't writers have a say commensurate with their contribution?
More important, the current language of the MMA doesn't provide any details as to how the writers on the board would be selected. Publishers have indicated privately that they intend to choose the writers who would serve -- a concept that would undermine the whole purpose of having writer members. To us, this is a no-brainer: Writers should select writers. There are several ways to accomplish this, including having the Librarian of Congress select writers based on nominations from creator organizations. This important detail must be clarified before the MMA becomes law.
Second, self-published and unpublished writers are those most likely to have their music unidentified or misidentified by digital music services. The reasons vary, from failing to file a registration with the Copyright Office, to neglecting to embed the right data in an uploaded track, to an inadvertent clerical error, or even something as basic as a misspelling. But, as the MMA is drafted, writers who don't find and claim their royalties from an online listing of millions of tracks would see 100 percent of those royalties go to publishers based on the publisher's market share. That means that the big publishers and their most successful writers would get most of that money -- money that belongs to self-published and unpublished writers. At a minimum, this "black box" money should be used to fund a rigorous, independent study, with the goal of arriving at an equitable distribution of unclaimed royalties to independent writers and publishers, not given to powerful interests who clearly don't deserve it.
Finally, the MMA is sorely lacking in key areas of transparency, among them, audit rights for independent, unaffiliated writers. As a result, songwriters who can afford lawyers and accountants would be able to audit their publishers, but many thousands of others wouldn't. And the ownership of the database, its algorithms and APIs is also undefined. If music creators -- including the ever-growing group of independents -- are to be protected by the MMA, these issues must also be addressed.
None of the points we're raising need jeopardize the delicate political balance that has brought us to this stage. These are issues solely between music publishers and music creators that we should be able to work out easily with our business partners -- if they are willing.
Songwriters and composers participate in the legislative process from a distinct disadvantage: We're not allowed to unionize and, unlike publishers, we don't have a well-financed trade association that speaks for us. So, we have to band together, forming ad hoc alliances to achieve our mutual goals. We salute our brother and sister creator organizations for their efforts to bring the MMA to this point and we believe that the improvements we are suggesting here will maximize those efforts and strengthen the legislation to the benefit of all.
Many have described the current version of the MMA as the best we can do. Our belief is that we can and must do better.