Copyright Catches Up


Copyright law has traditionally been the branch of Intellectual Property (“IP”) law that has lagged behind patents and trademarks. Although some can say that it is because the Copyright law faces technological challenges that Trademarks and Patents do not. Streaming has been a constant issue that has made it harder for Copyright laws to keep up with the technology. As a result, Congress has recently passed legislation to try to bring Copyright Laws up to speed with the rest of IP laws.  

Music Modernization Act

The Orin G. Hatch-Bob Goodlatte Music Modernization Act (“MMA”)[1] was signed into law on October 11, 2018. Its main goal was to modernize the various copyright issues for music and audio recordings that fell behind thanks to streaming capabilities. The MMA is actually three separate bills that have been consolidated.

Since the MMA was three separate bills that were consolidated, the Act consists three main Titles which each serves a purpose of updating the copyright laws. Title I- Music Licensing Modernization primarily serves the purpose of modifying the existing 115 “mechanical” license for reproduction and distribution of musical works in phonorecords. In the past, these mechanical licenses meant that a licensee would have to get a new license for every new work; or more commonly known as a song-by-song basis. The update will establish a new blanket license for digital music providers to engage in specific covered activities. These covered activities include permanent downloads, limited downloads, and streaming.

This blanket license excludes physical configurations of works such as CDs and vinyls. Title I further establishes a new legal standard that is market oriented and covers the new Section 115 mechanical licenses. There will be a transition period to move to the new blanket license which will allow digital music providers to limit copyright infringement liability. This liability will be limited so long as the provider engages in good-faith, commercially reasonable efforts to identify and locate musical work copyright owners. Lastly, Title I modifies the procedure that is used when selecting a federal district court judge to adjudicate the rate-setting disputes concerning performance rights organizations that are subject to consent decrees by the Department of Justice.

Title II- Classics Protection and Access, primarily brings pre-1972 sound recordings into federal copyright system by extending copyright infringement claims to owners of works that predate February 15, 1972. This section applies a statutory licensing regime similar to the one that’s applicable to sounds recordings that came after 1972. Title II further establishes a process for lawfully engaging in noncommercial uses of pre-1972 sound recordings not being used for commercial gain.

Title III designates SoundExchange, the congress created nonprofit, to distribute royalties on sound recordings, and to distribute part of those same royalties to a producer, mixer, or sound engineer who was part of the creative process that created the sound recording.


Although Copyright Law is still lagging behind the other two main branches of IP, the MMA is an important first step to bring Copyright Law up to speed with the ongoing technological boom.

At Rao DeBoer Osterrieder, our goal is to help you understand complex aspects of Copyright law as they apply to your business. As intellectual property strategies vary greatly between industries or even businesses, it is our aim to learn your business goals and function as an in-house IP attorney would for you. There are a number of strategies even after a copyright is registered that can help increase your bottom line.

Contact us so we can tailor a plan to your individual business goals and needs.  Make your Intellectual Property effectively work for you.

We look forward to speaking with you!


© 2018 Jorge Zamora

The views expressed in this article are those of the author and do not reflect the views of Rao DeBoer Osterrieder, PLLC, or any of its clients. All rights reserved.

[1] This is a version of the bill that was introduced in the House of Representatives, later passed in the Senate, and signed by the White House.