[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5713 Introduced in House (IH)]

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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.
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