Even a Divided Congress Can Agree on Copyright

Aloe Blacc, Booker T. Jones, Dionne Warwick and more testified at a House Judiciary Committee field hearing in New York on Friday organized to coincide with Grammy Week.

Congress is more divided, and deadlocked, than ever. But copyright is one of the few remaining bipartisan issues and some significant legislation may have a good chance to pass, judging by the mood at a House Judiciary Committee field hearing on Friday (Jan. 26) organized to coincide with Grammy Week and held at Fordham University School of Law in Manhattan. Among those who testified: Aloe Blacc, Booker T. Jones, Dionne Warwick and producer Mike Clink.

"If music can bring together a congressman from rural Georgia and one from Brooklyn and a liberal like Jerry Nadler and a conservative like Darrell Issa, we should be able to get this done," said Rep. Hakeem Jeffries (D-NY) to applause. He was referring to Rep. Doug Collins (R-Ga.) and himself, who co-sponsored the Music Modernization Act, although they probably don't agree on much else.

The various trade organizations and lobbying groups in the music business, which often disagree on too much to present a united front in Washington D.C., are cooperating as well. Since 2013, Rep. Bob Goodlatte has been working on a copyright reform process, which will almost certainly not be as ambitious as he hoped, since he has said he will not seek reelection next year. But there is now broad agreement on three bills that seem to have a significant chance of passing, according to both lobbyists and congressional staffers: The Music Modernization Act; the CLASSICS (Compensating Legacy Artists for their Songs, Service and Important Contributions to Society) Act, which requires satellite radio and online radio services to pay rights holders to play recordings made before 1972; and the AMP (Allocation for Music Producers) Act, which would change the way producers collect royalties.

At the hearing, the congress members and the musicians who testified mostly discussed the issue of pre-1972 recordings, which online radio services don't pay to use because they're not covered by federal copyright law. (They're covered by state copyright laws and whether services need to use them has been the subject of a series of lawsuits.) The Music Modernization Act was discussed as well and Collins announced that the National Association of Broadcasters had reached an agreement with ASCAP and BMI that would make it easier for the bill to move forward.

"In D.C. you're never going to have 100 percent agreement, but CLASSICS has the support of Pandora and DiMA, the Digital Media Association, which represents online music services," said Daryl Friedman, who oversees public policy work for the Recording Academy, in an interview before the hearing.

Jones, who testified, agreed: "The energies are coalescing for both sides."

Although these bills have been the subject of intense negotiations, that wasn't always evident at the hearing. There were disagreements, but most of them were cordial and muted and the congressmen agreed with the importance of compensating creators, even if they disagreed on how best to do so. Warwick suggested that the CLASSICS Act apply retroactively, so she could be paid for past uses of her work; later, after a congressman asked if she was kidding, she caused a stir by saying she was completely serious. (The bill would not apply retroactively.)

Several legislators and artists also addressed the issue of whether terrestrial radio should be paying to use sound recordings -- an issue addressed in the Fair Play Fair Pay Act. It's unclear how much support that bill now has, although the National Association of Broadcasters had been negotiating the issue with rights holders.

Although all the musicians who testified understand copyright, Aloe Blacc impressed many attendees with his ability to explain complicated issues -- no easy task given the complexity of mechanical licensing. At one point he introduced the issue of "DUH-DUH-DUH rate court," then explained both how it works and why it affects songwriters in a way that made it compelling.

All of the bills discussed are seen as flawed in some way by almost everyone involved, especially the Music Modernization Act, which would prevent rights holders from suing on-demand streaming services like Spotify for statutory damages over infringement of their mechanical rights. But they're all seen as helping the music business, on balance, and they could all change in the markup process and perhaps then again as the Senate considers parallel legislation.

In music copyright policy, as in U.S. politics in general, widespread agreement is rare. In this case, though, it may last long enough to result in significant legislation.