Copyright is the most fundamental of all artists’ rights. We are currently living through the most intense and comprehensive expansion of technological change in human history. Consequently, I believe it’s no exaggeration to declare that now, more than ever, we need to insure stable, comprehensive copyright protections that safeguard the rights of all content creators. Without control over our creations, artists are helpless to shape our careers or lives.
Big Tech often misrepresents artists’ rights as a false choice between the wonders that tech innovators provide versus protection of the rights of content creators, as if these two are inherently incompatible. When examined from an historical perspective, however, it’s obvious that this bogus argument is designed to protect a status quo which profits Big Tech. Consider the hypocrisy of claiming to be the defenders of free speech while doing everything possible to undermine laws intended to protect the creators of the very content that is a manifestation of that free speech. That is what the astroturf groups that shill for Big Tech do. Of course, stealing and profiting from the work of others is nothing new. Today’s struggle for artists’ rights is just another in a long series of conflicts between those who create things and those who want to profit from the creations of others.
It is government’s responsibility to protect the rights of its citizens. Governments generally take these responsibilities quite seriously, especially when they impact commerce. Among other things, copyright laws are intended to foster a balance among the commercial concerns of three constituent groups: (1) those who create content, (2) those who consume content, and (3) those who provide access to content. From the perspective of most musicians, there is no longer any balance, only an imbalance skewed to primarily benefit the Big Tech platforms that merely provide access to our content without investing anything in the creation of that content!
Copyright law and technological progress have always been inextricably linked. However, the law generally lags behind the technological innovations lawmakers attempt to address.
Like most of our laws, copyright has a long history replete with numerous revisions, amendments and the passage of ancillary laws. A quick review of the history of copyright in the United States reveals that there have been over 100 actions and revisions. The pace of these revisions has accelerated over time, in keeping with the acceleration of technological innovations. From 1790, when the first U.S. copyright was enacted, to 1909, there were only seven acts or revisions. From 1909 to the end of the 20th century, there were 30. From 2000 to 2014, there have been 74. More have occurred since then.
Last year another such ancillary law was enacted: the Music Modernization Act. (Much of the following information regarding the Music Modernization Act is drawn from a piece by Stephen Carlisle that you can find at www.hypebot.com.)
There are consequential changes to copyright law in the Music Modernization Act, including:
- Significant changes to the compulsory licensing procedures for music, such as how licenses are obtained, how payments are made, and safe harbors for streaming services
- Full federal protection for pre-1972 sound recordings, including adjustments to the length of copyright term, and the pre-emption of state laws
- New rules regarding payments due to the producers of sound recordings
Under the Music Modernization Act, a new entity called the Mechanical Licensing Collective (MLC) was established. The Mechanical Licensing Collective will operate under a renewable five-year charter granted by the United States Copyright Office. Its duties apply to digital music, whether the delivery is facilitated by download or by streaming.
The Mechanical Licensing Collective is designed to:
- Offer and administer blanket licenses
- Collect and distribute royalties payable
- Create and maintain a “musical works database”
- Coordinate the identification of the rights holders/rights owners in a particular musical work or sound recording
- Process claims of ownership by authors and composers
- Collect the “administrative assessment” charge from the digital music providers
- Keep track of “non-blanket license” activity
The Mechanical Licensing Collective is composed of 14 voting members and three non-voting members: 10 voting members that are music publishers, 4 voting members that are professional songwriters, one non-voting member from a non-profit music publisher trade association, one non-voting member from the non-profit digital licensee coordinator, and one non-voting member from a non-profit songwriter trade association.
This may all seem complicated and convoluted, but the Music Modernization Act is essentially an agreement between digital service providers (like streamers) and “the music community.” It’s intended to get artists paid for licensed/legal digital uses of our music, while limiting liability for (and hopefully eliminating) unlicensed uses of our music.
The Music Modernization Act will usher in changes that affect the performing rights organizations. The major PROs in the U.S. are: ASCAP, BMI, SESAC and Global Music Rights. These changes include:
- PROs will now have a level playing field to help get their members fairer compensation for revenue generating uses of their music, because judges deciding rate issues will now be selected from a rotating list of available judges in the Southern District of New York. Previously, each PRO was stuck with one judge for life.
- Market info may now be presented in rate decision hearings. Previously, market data could not be presented as an indication of a reasonable market standard for rate payments. For example, ASCAP could not present the rate that another judge awarded BMI (or vice versa) for identical uses.
Unlike terrestrial broadcasts (that only pay composers and publishers in the U.S.), digital broadcasts (like streaming) require four payments: (1) songwriter/composer, (2) publisher, (3) artists and (4) record label/owner of the sound recording.
The Mechanical Licensing Collective will collect and distribute revenues paid by digital service providers for blanket licenses permitting them to legally broadcast our music. The Mechanical Licensing Collective is supposed to create and maintain a reliable, accurate, updatable database to determine who owns the rights to the music they will “sell” licenses for. This database will be the authoritative source for deciding who gets paid for digital uses of our music.
The requirements for acceptable verification of rights ownership within this database are:
- United States Copyright Office registration of your song(s)/composition(s)
- International Standard Recording Codes (ISRC’s) for each digital track
Registering your songs with the copyright office is pretty simple. It can be done online at www.copyright.gov.
For info on obtaining International Standard Recording Codes, visit www.usisrc.org. ISRC’s can be a bit trickier, because for most of the music available online, ISRC’s have already been assigned. Once an ISRC has been assigned, you cannot change it or assign a new one. This can be problematic, especially when there are metadata errors associated with ISRC’s assigned to your recordings, which is quite likely if you or your label previously relied upon any of the many “one-stop shop” vendors that cater to self-released and indie artists for digital distribution.
These one-stops can be an attractive option for getting your music out into the world, because they handle everything from designing and manufacturing your CD package, to mixing and mastering your sound recording, to fulfilling physical and digital distribution – all for a fee. However, they can also be very sloppy data-keepers.
Since digital distribution generally requires ISRC’s, these one-stops often assign them to each track they are hired to digitally distribute. While I’m not questioning the integrity of these one-stops, the data they associate with ISRC’s can be woefully inaccurate. Many of these inaccuracies seem to have occurred due to procedures followed by submitting entities adhering to the streamers’ requirements for accepting music submissions. The streamers required the submitting entity to claim to be the “label” making the submission in order to limit the streamers’ liability for accepting unlicensed submissions; otherwise the submission would be rejected. This frequently resulted in the submitting entities erroneously claiming to be either the record company/owner of mechanical rights or an associated rights owner of these recordings, and in some cases even claiming to be the publisher. This was all routinely handled by unpaid or underpaid interns for both submission and acceptance of music. So the submitting interns listed whomever they were working for (like the digital distributor or one-stop) as the label that owned the mechanical rights, whether that was true or not! And the receiving interns accepted it.
My understanding is that ISRC’s and related data are available upon request, though few self-releasing artists I know seem to have requested that info. I certainly failed to, in part because, until recently, I was unaware that ISRC’s had been assigned to my earliest releases. Consequently, one-stops rarely provided artists with a list of the ISRC’s and the associated metadata. So few artists ever checked for accuracy. This resulted in the proliferation of industry-wide inaccuracies. Furthermore, since each streamer has their own separate database, any discrepancies between streamers may compound these industry-wide inaccuracies. This could present a bureaucratic nightmare for the proposed Mechanical Licensing Collective database, especially if it relies on these conflicting and inaccurate databases to create their supposedly authoritative database.
I recommend that all indie and self-released artists who have ever had their music available in any digital format check all data associated with any ISRC’s that have been assigned to their digital releases.
There are several ways to do this. You can wait until the Mechanical Licensing Collective is operational on Jan. 1, 2021 to check their database. If you want a head start, go to the individual streamers and check their data, or go to SoundExchange (www.soundexchange.com) and check their information. To access SoundExchange data, you need a registered account, which is free. If you have a large number of recordings where you’re the featured artist, check by artist/band name. Otherwise check by song title. Once you’ve located the song(s), examine the ISRC’s and send SoundExchange a request for the data associated with the ISRC’s for your recordings to verify the related data for each song. SoundExchange’s correction procedures may require you to resubmit all the metadata for each and every song.
While procedures may vary between streamers, you’re basically checking four data fields: (1) songwriter, (2) publisher, (3) featured artist and (4) record label. You may also encounter a field for “distributor.”
If you prefer to wait until after Jan. 1, 2021, when the Mechanical Licensing Collective will be operational, there will be procedures (yet to be defined) for “correcting” inaccurate data in their database. But be aware that any unidentified music will have only three years to get “claimed.” After that time all revenues left undistributed to rights holders will be divided among the major music publishers by market share. This means you are not likely to see any of that money, even if it is rightfully yours!
As we strive to create a sustainable musical ecosystem online, one that fulfills the promise of empowering artists to go directly to our audience, remember that if you don’t do the business, the business will do you!
P.S. If any of this made your head spin, please come to the next meeting of the Local 802 Artist Rights Caucus and we’ll try to help you figure this all out. Join us on Monday, Dec. 30 at 4:30 p.m. in the Executive Board room of Local 802 (322 West 48th Street). E-mail us at firstname.lastname@example.org.
Guitarist Ken Hatfield is the co-chair of the Local 802 Artist Rights Caucus. He has been a member of Local 802 since 1977. Reach him at www.KenHatfield.com.