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Music Modernization Act Gains Momentum in Senate

Smokey Robinson says the bill will boost livelihood of classic artists.

WASHINGTON — Smokey Robinson called for passage of music licensing legislation that will extend copyright protection to sound recordings made before 1972, an issue he said was “a livelihood thing” for many artists who no longer perform.

“It is not just about music,” he told a Senate Judiciary Committee hearing on Tuesday. “It is about lives — they could really use that money.”

Robinson was the latest music legend to visit Capitol Hill to urge passage of the Music Modernization Act, a set of changes in the law designed to streamline music licensing and close a loophole in copyright law.

In the early 1970s, Congress extended copyright protection to sound recordings, but it was effective as of Feb. 15, 1972.

The rise of satellite radio and digital streaming has generated new airplay for classics made before that date, but often the artist and the label are not compensated. Robinson said that his music and that of The Miracles are played over 50,000 times a day, every day. An “arbitrary date on the calendar should not be the arbiter of value,” he said.

Robinson spoke forcefully on behalf of the MMA and particularly the CLASSICS Act, sharing how a few years ago, he audited the digital services playing his music and found they owed him $250,000. After confronting them, he was offered $12,000 and told, “If you don’t like it, sue us.” Robinson noted there are few artists with the economic means to take on that sort of battle, concluding “We need your help!’”

The legislation passed the House unanimously last month, and it also includes sweeping changes to the licensing regime for digital music services. A Senate version was recently introduced.

The Senators seemed inclined to provide that help. Robinson received numerous compliments from Judiciary Committee members, including Chris Coons (D-DE) admitted “Motown hits were the soundtrack of my life,” adding, “the day we get to say I love you back and forth to Smokey Robinson in a Senate Judiciary Committee hearing is a good day,” with Hatch confessing,  “I’ve been a fan for years.” The enthusiasm didn’t end there.

Said Amy Klobuchar (D-MN): “If I wasn’t for this bill, I’d be in trouble in Minnesota given that it is the home to Prince and Bob Dylan. We miss Prince dearly. He was a fierce advocate, as all of you know, for the rights of musicians and songwriters.” The former state prosecutor said she “literally dressed up as ‘Purple Rain’ for a Halloween party,” a feat she approximated by wearing a plum-colored jacket to the hearing. Invoking “Come senators, congressmen please heed the call,” Klobuchar quoted Dylan, stating “The times they are a changin’” and citing a battle that will “soon shake your windows and rattle your walls.”

Evocative poetry for prosaic battles is in shorter supply today than in the ’60s when Dylan wrote his hit. “The number of professional Nashville songwriters has decreased by 80 percent,” offered Josh Kear, who co-wrote Carrie Underwood’s hit “Before He Cheats.” “An entire middle class of songwriters – they’re gone. That statistic is directly attributable to the way we listen to music in the digital era … under laws written in 1909.”

A sticking point at the Senate hearing was the unclaimed royalties fund. Dianne Feinstein (D-CA) questioned witnesses on whether the proposal would do enough to protect independent songwriters ― the one aspect that has received criticism from the creative community. Feinstein said she’s seen estimates may run into the “hundreds of millions” of dollars. Senator Mazie Hirono (D-HI) estimated that under current laws 15-20 percent of songwriters are not being paid because they are not appropriately identified (i.e., their names are not easily traceable to their works).

Under the current iteration of the MMA, unclaimed monies are to be distributed every three years and critics have expressed concern those funds would be dispersed mainly to the large publishers who will have 10 of 14 seats on a new board proposed by the bill (the remaining four going to unpublished songwriters). Both Grassley and Feinstein expressed concerns about an even number board in the event of a tie.

National Music Publishers Association (NMPA) CEO David Israelite stressed similarities between this new board and that of SoundExchange, which he said has “worked very well” and noted  that for anyone concerned with the board composition “all legal rights remain in place” and federal court remains a remedy as well as “the oversight that the copyright office has.”

Whether independent songwriters will have the financial means to advance such rights is questionable, and at least one observer, music attorney Kenneth Abdo, a partner at Fox Rothschild, speculates that the bill that ultimately passes the Senate will have added protections for smaller players. Overall, Abdo couched the MMA as “not a cure-all, just a good step in the right direction.”

One of the things the MMA doesn’t “cure” is music’s compulsory license, a part of U.S. Copyright Act that dates to 1909, and basically requires that any third-party that wants to distribute commercially recorded music can do so, at rates ruled by the government.

Israelite took multiple opportunities during the hearing to bash the compulsory license and laud the  MMA’s introduction of a “willing buyer-willing seller” component. Music Choice president and CEO David Del Beccaro testified forcefully against both the Senate and House version of the MMA, specifically criticizing the willing buyer-willing seller provision, which would close a loophole for pre-1972 digital services that had certain rate limiting protections “grandfathered” when Congress made a round of copyright law changes in 1995.

Also offering opposition testimony was Meredith Rose, policy counsel for non-profit consumer advocacy group Public Knowledge, arguing against the MMA provision that would grant royalties for pre-1972 songs ― which is exactly what Robinson and songwriters Justin Roberts, testifying on behalf of the Recording Academy, and songwriter Josh Kear, appearing on behalf of ASCAP, were opining for. Rose said she was opposed not to the need for pre-1972 payments, but for the manner in which the MMA addresses that need. Specifically, Rose objected to the CLASSICS provision of the MMA extending to 143 years copyright that for other works only runs for 95 years.

Israelite’s frequent compulsory license protestations seem a bellwether for where the industry will next be marshalling its forces once the MMA battle is won. Long a thorn in the industry’s side, the compulsory license prompted Songwriters of North America (SONA) attorney Dina LaPolt to opine last year that “songwriters are more heavily regulated than the pharmaceutical industry.” LaPolt, who flew to D.C. from Los Angles for the hearing, said afterwards that she and SONA were encouraged by what they heard. “We are thrilled that the Senate Judiciary has recognized the importance of modernizing legislation surrounding music creators’ rights in the era of digital distribution,” LaPolt told Variety. “It is decades in the coming and I am looking forward to the bill’s momentum passing through a full Senate vote.”

LaPolt’s opinion was in line with that of Hatch. “Every senator who has shown up here today is committed to solving this problem,” Hatch said during closing remarks. “Let’s get it out of committee and get it passed.”

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