This fall, lawmakers in the second session of the 110th Congress are expected to address a number of important issues that could affect songwriters and their livelihoods. They are planning hearings and the introduction of several pieces of legislation to remedy inequities and reform antiquated laws.
The music community now exists in what was quaintly called “the digital age” just ten years ago, and the manner in which music is performed and sold has changed dramatically. Old business models show cracks and strains, and new ones strain and struggle. In the on-line environment, some copyright laws written decades ago seem creaky and cumbersome, especially music licensing laws. As a result, all of us now sit on unsettled ground, and federal lawmakers who are listening to the music community are struggling to fashion new legislation that is forward-thinking, fair and efficient.
This is the third autumn that Congress is attempting to forge equitable changes in laws affecting music and that clearly shows that lawmakers have a lot on their hands. The issues are complicated. Also, no longer are there just the traditional players such as record companies, performing rights organizations (PROs) like BMI, music publishers, broadcasters and music retailers. There are new players at the table, and lawmakers must hear their concerns as well.
On the creative side, in recent years, featured recording artists and songwriters have fought their way to the bargaining table in Washington. The Recording Academy now has an advocacy office in D.C. and the National Music Publishers Association moved its headquarters from New York to Washington and has selected as its new executive director a former top Justice department lawyer. The music unions AFM and AFTRA now have a much more far-reaching agenda.
On the music user side, in addition to veteran broadcasting and retail representatives, the growth of digital music providers and services has created a new team of players representing satellite, cable and Internet interests, ranging from giants like Verizon, AOL and Yahoo! to start-up webcast companies. They have banded together to form a formidable lobbying effort.
Some of the issues being addressed this fall have to do with the creation of a new right in copyright law; others with modifying current licensing laws that deal specifically with how songwriters, music publishers and record companies are paid.
On both sides of the aisle, music-friendly Democratic legislators are in the majority in the 110th Congress. Sen. Patrick J. Leahy of Vermont in the Senate and Rep. John Conyers of Michigan’s 14th district in the House now chair the Judiciary committees, which oversee copyright and Internet issues. They are buttressed by music community allies such as Sens. Barbara Boxer and Dianne Feinstein of California.
In the Republican minority, Sen. Orrin Hatch of Utah and Rep. Howard Coble of North Carolina’s fifth district remain stalwart friends.
The most looming issue for these lawmakers will be crafting legislation to create a performance right in sound recording for terrestrial radio, which will create a new right for recording artists and record companies. If passed, the revenue stream will be an additional royalty to the traditional performance royalties long enjoyed by songwriters and music publishers. The U.S., proponents often point out, is the only developed nation in the world not to offer a performance right in sound recording.
The lack of such a performance right meant that recording artists who generally don’t write their own songs, even stars like Tony Bennett, Frank Sinatra, Barbra Streisand and Celine Dion, never have seen royalty income from airplay.
BMI, like the rest of the music community, believes that all the creative participants in a sound recording deserve to be compensated, but wants to ensure that a new law is crafted so the current performance right for use of songs that are broadcast is not diminished nor eroded.
Reform of outmoded and inefficient music licensing laws is now in its third year of hearings. There has been unsuccessful draft legislation that included everything but the kitchen sink. It called for the elimination of the compulsory license used for the distribution of sound recordings, a merge of licensing for mechanical and performance rights into one right, a blended rate for these two royalties, the creation of new musical rights organizations to handle these rights, and the end of controlled composition clauses.
BMI also opposed a “letter of direction” provision that might have sent songwriter income to record companies. The bill never made it out of subcommittee. Continuing concerns of music industry groups on some of these features might slow down re-introduction of a bill this session.
Also on the legislative plate is legislation to create greater university cooperation to combat unauthorized campus downloading. Unlike record companies, BMI has been licensing university use of music — including online activity — for many years.
Lawmakers may also re-introduce a so-called “orphan works” bill, to grant the public greater access to material for which the rights owner cannot be easily found. In the music industry, over the years, the major record companies have acquired thousands of small record labels, and have enormous numbers of heritage recordings in their vaults they have no plans to exploit. Users are often refused permission to bring them back to life. BMI will closely monitor the drafting of such a bill.
Bill Holland has covered music industry issues before Congress, the courts and the federal agencies for more than 20 years.