Protect Working Musicians Act of 2021
This bill allows certain individual music creator owners to collectively negotiate music licensing terms with dominant online music distribution platforms.
Individual music creator owners include musicians, producers, and technicians who own the copyright to a recording and either (1) earned less than $1 million in associated revenues during the prior year, or (2) qualify as a record production and distribution small business.
Dominant online music distribution platforms include interactive online services with annual revenues from music distribution of more than $100 million.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5713 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 5713
To empower independent music creator owners to collectively negotiate
with dominant online platforms regarding the terms on which their music
may be distributed.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 25, 2021
Mr. Deutch introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To empower independent music creator owners to collectively negotiate
with dominant online platforms regarding the terms on which their music
may be distributed.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protect Working Musicians Act of
2021''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Music is a cultural treasure and a unique source of
spiritual inspiration, emotional comfort, community connection,
and joy. It is also a powerful economic driver that directly
and indirectly supports nearly 2 million American jobs and
almost $150 billion in annual economic activity.
(2) A healthy music ecosystem is a fundamental bedrock for
a healthy society.
(3) Fair and competitive markets for the use and licensing
of recorded music are integral to a healthy music ecosystem.
(4) As music distribution has moved online, the market for
use and licensing has become distorted and imbalanced. The
largest Dominant Online Music Distribution Platforms use their
market power to distort legal requirements and force music
creators into licensing agreements that do not reflect market
value. Those agreements essentially dictate a price to music
creators. If music creators do not agree to licensing terms,
the online platforms profit from unlicensed uploads of music
anyway.
(5) These platforms game the system created by the Digital
Millennium Copyright Act, which allows dominant online
platforms to ignore and profit from unlicensed use of music and
places the responsibility for finding each and every instance
of unlicensed use of music on music creators. This ``notice and
takedown'' scheme has been described as a gigabit-speed game of
whack-a-mole.
(6) The trade association for the major record labels
spends millions of dollars engaged in this effort which it says
has grown to be ``largely useless.'' The trade association for
the independent record labels agrees, calling it a
``dysfunctional relic''.
(7) An effort that is largely useless for major and
independent record labels is an exercise in futility for
Independent Music Creator Owners--those who own the copyrights
and market their work themselves. Independent Music Creator
Owners lack the economic, legal, and political resources to
stand up to the Dominant Online Music Distribution Platforms
and have no way to meaningfully negotiate fair licensing rates
for their work.
(8) That power imbalance means that Independent Music
Creator Owners are forced to take whatever terms dominant
online platforms offer for their work. If they decline, the
platforms simply ignore them since in most cases lacking access
to any single artists' work does not present a threat to the
platforms' overall attractiveness to consumers.
(9) This imbalance has decimated careers in music at an
untold cost to our society and culture. Multi Grammy-award
winning musician Rosanne Cash recently lamented: ``I see young
musicians give up their missions and dreams all the time
because they can't make a living.''
(10) The antitrust laws were intended to and do provide
important economic and civic benefits.
(11) A central purpose of these laws is to promote,
protect, and strengthen fair and open markets, including those
for music.
(12) While antitrust exemptions are generally disfavored,
should the application of the antitrust laws ever be applied in
a manner that conflicts with their purpose--such as protecting
the online marketplace for creative works--it is the duty and
prerogative of the Congress to resolve the conflict.
SEC. 3. SAFE HARBOR FOR CERTAIN COLLECTIVE NEGOTIATIONS.
(a) Definitions.--For purposes of this section:
(1) The term ``Individual Music Creator Owner'' means any
musician or group of musician, producers, mixers, and sound
engineers that--
(A) owns the copyrights to one or more sound
recordings created by the musician or group of
musicians, producers, and sound engineers; and
(B) either:
(i) has earned less than $1 million in
licensing revenues associated with these
copyrights in the prior year; or
(ii) qualifies as a small business under
the Office of Management and Budget North
American Industry Classification System (NAICS)
code 512250.
(2) The term ``Dominant Online Music Distribution
Platform'' means any entity that--
(A) operates an app, website or other online
service that is used by members of the public to listen
to sound recordings, whether via a digital audio
transmission, an audio-visual presentation, or any
other means;
(B) has annual revenues related to the distribution
of music of more than $100 million; and
(C) is not eligible for a license under section
114(d)(2) of title 17 of the United States Code.
(3) The term ``antitrust laws'' has the meaning given such
term in subsection (a) of the first section of the Clayton Act
(15 U.S.C. 12), and includes--
(A) section 5 of the Federal Trade Commission Act
(15 U.S.C. 45) to the extent that such section applies
to unfair methods of competition; and
(B) any State law, rule, or regulation that
prohibits or penalizes the conduct described in, or is
otherwise inconsistent with, subsection (b) of this
section.
(b) Limitation of Liability.--An Individual Music Creator Owner
shall not be held liable under the antitrust laws for agreeing with
other Individual Music Creator Owners to collectively negotiate music
licensing terms with a Dominant Online Music Distribution Platform or
agreeing with other Individual Music Creator Owners to collectively
refuse to license their music to a Dominant Online Music Distribution
Platform, if--
(1) the negotiations are not limited to price, are
nondiscriminatory as to similarly situated independent creator/
owners;
(2) the coordination among Independent Music Creator Owners
is directly related to and reasonably necessary for
negotiations with a Dominant Online Music Distribution Platform
that are otherwise consistent with the operation of the
Antitrust laws; and
(3) the negotiations do not involve any person that is not
an Independent Music Creator Owner or a Dominant Online Music
Distribution Platform.
(c) Rule of Construction.--Except as provided in this Act, this Act
shall not be construed to modify, impair, or supersede the operation of
the antitrust laws.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
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