By Dawoud Kringle (with Ken Hatfield and Sohrab Saadat Ladjavardi)
On Tuesday, February 27th, the MFM Jazz Musicians Meeting #3 was held at Yeoria Studio. Organized by Sohrab Saadat Ladjevardi and Billy Harper, the agenda of the meeting was threefold. 1. Ken Hatfield and Sohrab Saadat Ladjevardi were to discuss the Music Modernization Act (MMA). 2. The rights and problems of women musicians. 3. Organizing a Musicians’ March in NY and DC in 2019.
The attendance of these meetings is growing. Attendees this night included Ricky Ford, Cynthia Scott, Stanley Banks. Jimmy Owens, Robbi Kumalo, Bill Saxton, Melanie Frey; and Gene Ghee.
Saadat opened the meeting with a brief introduction. Hatfield hit the ground running with his discourse about the Music Modernization Act, and other bills that affect the future of digital music production, distribution, and remuneration for creators. Ken Hatfield handed out a document he’d prepared (later, Saadat joked that he’d asked Hatfield to prepare a one or two page document; Hatfield came with 10 pages). This document formed the main body of his discourse, and it covered a lot of ground.
A wide variety of interrelated subjects and problems were brought up, discussed, analyzed, dissected, and argued over. This began with a historical perspective (including the fact that present copyright laws have remained almost unchanged since 1909). This overview included:
1. The 1996, the Digital Music Copyright Act (DMCA), a US copyright law that implements two 1996 treaties of the World Intellectual Property Organization. It criminalizes production of technology, devices, or services intended to circumvent measures that control access to copyrighted material (this became a necessity with the advent of the Internet; and the nature of digital music medium). One of the biggest problems with DMCA is section 512 (a.k.a. the “SAFE HARBOR” provision). This provision makes it impossible to sue the digital service providers (DSPs) when they violate our copyrights. Elimination (or as some propose revision / restriction) of section 512 would allow musicians a leverage similar to how the tobacco companies could be held financially accountable for the death and disease their product creates.
2. The Fair Play Fair Pay act (HR1836) which amends federal copyright laws to extend copyright owner’s rights to include the exclusive right to perform or authorize the performance of a recording publicly through the means of any audio transmission. It proposes that terrestrial broadcasters will have to pay the same four concerns that digital broadcasters now have to pay. Previously terrestrial broadcasts only generated revenues for composers and publishers (though at higher rates than those paid now by DSPs) while digital service providers pay (1) composers and (2) publishers…… each at much lower rates. Composers and publishers currently get 1/12th of what record companies and performers get) and also pay (3) owner(s) of the mechanical rights to the sound recording (generally a record company) and (4) the performing artist (i.e. the featured artists). Under FPFP all broadcasts would pay roughly the same (or similar) concerns and amounts. That is the game changer here.
3. The Classics Act: HR 3301, which was initiated by a bipartisan group of senators. If passed, HR 3301 could close major loopholes in US copyright law that left Artists out of the royalty payments of digital radio play in platforms such as Pandora and Sirius XM. Currently artists are not paid for their contributions/performances of digital broadcast of any recording created before 1972. This is the main loophole from the DMCA that the Classics Act closes.
4. The Case Act HR 3945. Copyright law is adjudicated in Federal Courts. Federal litigation is so expensive and complicated that most creators and small businesses cannot afford to enforce their own rights. Because of this, infringements regularly go unchallenged, and many creators feel disenfranchised by the copyright system. HR 3945 addresses the problem of federal courts having exclusive jurisdiction over copyright claims. Content creators will for the first times since DMCA be able to sue those that infringe upon our copyright and mechanical rights in small claims court for amounts up to $30,000 U.S.D. This also means that those guilty of infringement will (1) be limited regarding their delaying tactics, and (2) they will be more likely to have to pay and therefore will settle and hopefully cease and desist their infringements.
5. The Music Modernization Act. From legislative perspective this bill is important because 1. It is an omnibus bill that consolidates many of the best provisions of its predecessors into one bill and 2. It has substantial support from the major players in the music community, including ASCAP, BMI, RIAA, AFofM, and NMPA. The MMA promises to reform music licensing in ways that are advantageous to songwriters and composers in the modern digital age. The bill is, as of this writing, a work in progress. As such, some of the problems have yet to be worked out. The pros of the MMA include the fact that DSPs have finally agreed that they have to pay for every play/stream/broadcast use of our music (identified and unidentified). This money will go to the music community and no longer stay with the DSPs (as currently happens under the issuance of Notice Of Intentions (NOI) in lieu of or at least delaying our payments). This money will be distributed by a Collective (in some versions it is called the Mechanical Licensing Collective or MLC). This collective will be under the Library of Congress who will grant it a charter of 5 years duration.
This Collective will not only distribute tens (if not hundreds) of millions of dollars to writers and publishers, but it will also oversee (and create or choose/contract/outsource the creation of) a data base that all the DSP’s will rely on to identify and pay us accordingly for any and all of the music that the DSPs play/stream broadcast etc. or otherwise use to generate revenue for their business. The cons include the fact that the aforementioned collective as presently configured will be comprised of 10 publisher members and only 4 composer/writer members (and the publishers want to choose the writer members). There is little or no transparency for independent self-published writers /composers because the right to audit the Collective is limited to the Big Publishers (which means that Sony, Warner, and Universal will not only have the lions share of board members on the collective, but will be the only ones that can audit the Collective’s disbursements of the money they receive from the DSP’s). Additionally, it has been widely reported that these big publisher / record companies have substantial investments in several of the biggest streaming entities. This configuration of the Collective is clearly unfair when the writers are entitled (by law) to at least 50% of that revenue.
The music community will need to decide individually and collectively if we can live with the basic procedural intent of MMA while working to fix the issues we have with it before it is voted on by Congress. The DSPs see these issues as an internal disagreement within the music community (between publishers and writers), and do not care how we divide the money that they have agreed for the first time to pay us. The publishers may need this deal more than we do. However, it may be advantageous to accept the good provisions of the MMA, and deal with its problems later (with the exceptions of the Collective Board configuration and section 512, the Safe Harbor provision, which are unacceptable). Every single musician that writes any of their own material, and/or creates/produces their own recordings needs to educate themselves about the MMA and the 512 section of the DMCA and determine where they stand. Then they need to act accordingly to proactively help create a sustainable musical eco-system that we can all live with and prosper within.
The scope of this analysis is too complex to be sufficiently presented here; and is not complete. MFM is at work examining the dynamics of this, and especially the Music Modernization Act, which holds great promise. This publication will present MFM’s findings and position on these issues.
Hatfield brought up a few other related issues of importance that musicians need to be aware of. This includes the necessity of ISRC (International Standard Recording Code) codes, which will help to ensure that we get paid once a fair system is finally established.
The meeting was a fast paced and detailed analysis of the present situation we musicians are facing, and what can be done using the resources available to us. The streaming companies are willing to pay; though the details regarding method(s) of distribution of funds is still being fought out.
The subject of MMA was too complex a subject to simply skim over. And it brought a great number of other questions to the surface which has yet to be answered. Because of this, the other subjects of the meeting’s agenda (the rights and problems of women musicians, and organizing a Musicians’ March in NY and DC in 2019) were tabled for the time being.
In my review of the 2nd Jazz Musicians Meeting, I mentioned how MFM had reached a new milestone in its development as a musician’s advocacy organization. This night, that milestone was firmly established.
A handful of attendees agreed to work within the framework of a working group to address and act upon these issues. While the question remains whether they want to that privately or under the umbrella of MFM, an important step has been taken. This is where MFM can get into the game and affect real change for the music community.
While much work (both theoretical and practical) lay ahead, progress is being made. The agenda of MFM is no longer a mere theory. It is beginning to work.