As part of a compromise that that brought music users like radio and music creators together last year in their unified support of the Music Modernization Act (S. 2823), broadcasters secured language in the sweeping copyright reform legislation that called for the creation of a database that would make it easier to determine who holds the rights to songs. The database would allow a station to not only ensure they were paying the right person or company for use of a song, but also help an outlet to steer clear of a record that include rights holders they hadn’t paid.
The U.S. Copyright Office has begun the process of creating that database, and in comments filed the MIC Coalition is urging the government not to overly limit the information included. In addition to the so-called mechanical rights that cover such things as interactive streaming services and digital downloads, the MIC Coalition says the database should include information regarding the public performance rights, which would cover radio airplay among other uses. “A database that only provided data for mechanical rights would leave in place a balkanized system, with no central authoritative repository with information about all the musical works rights that need to be cleared by digital music providers and other licensees,” it said. The MIC Coalition is a lobbying coalition made up of broadcasters, streaming services, restaurants and other music licensees.
The labyrinth of license holders has long been nearly impossible for music users like radio stations to navigate. It’s meant that most companies have opted to sign licensing agreements with the performance rights organizations rather than run the risk of playing a song it didn’t hold the rights to and face a copyright violation suit. Most recently, Entravision was sued by Global Music Rights for copyright infringement.
“Businesses that offer music have no ability to make rational decisions about which licenses best fit their music needs,” the MIC Coalition told the Copyright Office. It said music users like radio can currently only try to find all the rights holders in the proprietary databases maintained by the performance rights organizations. But at any given time, 15% of those music rights are in flux. “Those databases are not only not comprehensive or interoperable, they explicitly state that users cannot rely on the information to make licensing decisions,” it added.
ASCAP and BMI announced in July 2017 that they are working to build a joint database that would include works in both their repertoires, combining their individual ASCAP ACE Repertory and BMI Repertoire Search tools. The database would be made publicly available initially via ASCAP’s and BMI’s websites, and would feature aggregated information and indicate where other performing rights organizations may have an interest in a musical work. The initiative has been welcomed by radio and other music users. But nearly two years after it was announced, the joint database has yet to be unveiled – well beyond the expected late-2018 launch date.
Even if the private sector initiative gets off the ground, the MIC Coalition says it wouldn’t include SESAC and GMR, which it notes “aggressively license” their works with radio stations and other music users. “A database that is incomplete perpetuates the ability of any PROs not participating in the database to strong-arm businesses into paying for licenses they may not want or need, simply out of fear and uncertainty about their exposure to crippling infringement suits,” the Coalition said.
The first round of comments in the proceeding is now in the hands of the Copyright Office, with reply comments due by Dec. 9. Under the Music Modernization Act signed into law by President Trump last year, the Copyright Office should have its new database up and running by the end of 2021.