The Music Modernization Act: We Can & Must Do Better

"ANY LAW OF THIS KIND MUST FIRST AND FOREMOST PROTECT THE WORK'S CREATOR AND OWNER, NOT THE ADMINISTRATOR."

2/21/2018 By Phil Galdston & David Wolfert (Music Answers) 

(Billboard, February 21, 2018)

 

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.

The original article is HERE


 

The Music Modernization Act Misses the Mark

By Phil Galdston & David Wolfert

(Variety, March 16, 2018)

Three pieces of legislation that aim to update the ways that royalties are paid to songwriters and artists — the Music Modernization Act, the CLASSICS Act and the AMP Act — are going before Congress later this year. In a guest column published by Variety last week, National Music Publishers’ Association president/CEO David Israelite and Recording Industry Association of America president Mitch Glazier argued for combining the three acts into a single piece of legislation. In this response, songwriters/publishers Phil Galdston and David Wolfert take issue with several points in the Music Modernization Act. 

The Music Modernization Act (“MMA”) is an important piece of copyright legislation with the potential to benefit the music community, most important, songwriters and composers, who may finally receive just compensation for the millions of streams of their work fans enjoy and on which digital music services base their businesses. But the current draft fails to deliver on that promise.

As the MMA moves closer to a vote in Congress, those of us who have refrained from joining the cheering squad have had time to study its details and likely long-term consequences. The more we’ve looked at it, the more concerned we’ve become. While there are a good number of serious issues with the bill, its fundamental flaw is that it completely fails to accomplish one of its most important goals: ensure that all the writers whose music is played on digital music services get paid.

The idea sounds simple enough. The digital music services have agreed to pay for every stream of every song. There are ways to determine whose song is whose. The rate is all set. So what’s the problem?

The problem is that the major music publishers have seized this opportunity to attempt to tighten their tenuous grip on the music publishing business, using the MMA to install themselves as the gatekeeper for tens of millions of dollars in unclaimed royalties from digital music services, and, in effect appointing themselves as the sole judge and jury about who is entitled to be paid, how they will be paid, and even if they will be paid.

The publishers have gone so far as to claim that if the writer of a song doesn’t file a proper claim within 36 months of performance, 100% of the royalties from those streams will instead be paid to the top publishers (and some of their biggest writers) via the world’s largest “black box” of royalties. Really?

The music business is going through an unprecedented period of growth, fragmentation, and democratization. A new generation of writers is looking for new ways to get their music to market, and new business paradigms based on transparency and technology are being developed with and for them. Big music publishers still control a large portion of the business, but a global world of independent writers and publishers is beginning to challenge their dominance.

We won’t go into all the details of the MMA (it’s more than 100 pages long) except to say that the complicated organizational structure it establishes pretty much ensures that a big pile of money will end up in the black box, destined for distribution to the major publishers based on their market share. It is highly unlikely that the tens of thousands of independent self-published and unpublished writers whose music is performed on Spotify and other digital music services will ever get their fair share.

Proponents of the bill claim to have the support of the tens of thousands of music creators. We strongly believe that few, if any, of those writers understood the details of the bill or its implications when they were asked for support. (Indeed, the bill had not even been made public when its proponents began promoting online petitions in support, nor was its text included or a link to it provided.) And with all due respect to the songwriter organizations that were involved in the negotiations of this bill, their members do not represent the worldwide community of unpaid independent music creators for whom the MMA is supposed to be a solution.

MusicAnswers was one of many groups that offered its support for the legislative process and initial, conditional support for the bill, expecting (and having received assurances) that our serious, repeatedly-stated concerns about governance, transparency, and royalty distribution would be addressed. But it appears that the architects of the MMA do not intend to make meaningful changes—certainly not by equally sharing power with writers—or sincere efforts to determine to whom all that money in the world’s largest black box belongs.

There are many provisions in the MMA that can and should be corrected, but the easiest one may be this: distributions from the black box should only be made to writers and publishers who file legitimate claims for previously unidentified or mis-identified tracks. That would take the politics out of distribution, create a real incentive for writers and small publishers to file claims, and ensure that the legislation fulfills one of its primary goals. While we imagine that there are other possible solutions, this one seems simple and fair enough to win widespread support

It’s important to note that this specific idea—and the remediation of virtually every other point we and other critics have raised—has nothing to do with the digital music services, and, therefore, doesn’t in any way jeopardize the chances of the bill’s success. Unless, of course, the major publishers don’t want to give up the chance to get something for nothing.

Original article HERE.