Congressman's Sensenbrenner's Music Licensing Bill

Last month, Congressman Jim Sensenbrenner introduced the Transparency in Music Licensing and Ownership Act, which would require the Register of Copyrights to establish and maintain a publicly-available searchable database for music and sound recordings. In introducing the bill, Congressman Sensenbrenner said: “Streamlining the music licensing process into one, easily accessible database is a straightforward way to help our nation’s business owners while ensuring copyright owners are fairly compensated for their work.”

Congressman Sensenbrenner deserves credit for highlighting a problem that deserves attention. But his proposed solution – a new database built, operated, maintained, and updated by the government – is not the right solution. Government agencies, including specifically the Copyright Office within the Library of Congress, do not have a good track record of building and maintaining databases. The private sector can do this job more effectively and efficiently.

Here’s the problem that Mr. Sensenbrenner’s bill is attempting to address. When a commercial business, like a radio station or restaurant, wants to play certain songs or recordings, it must receive a license from the copyright holder. But not infrequently businesses do not know who to pay for the license to play or perform the music. The lack of such information can facilitate copyright infringement, thus harming artists and discouraging musical creation. Whatever difficulty exists in obtaining accurate information regarding copyright ownership also may leave businesses open to lawsuits for infringement.

To address this information deficit problem, businesses should have access to an up-to-date, comprehensive, and easily searchable database of musical works and recordings. The objective of Rep. Sensenbrenner’s bill, to streamline the music licensing process by creating such a database, is a proper one. But his proposal is not the most efficient of effective way to establish and maintain such a database.

Rep. Sensenbrenner’s bill would require the Register of Copyrights to create and maintain the database. But the Copyright Office does not have a good record when it comes to performing the most basic tasks assigned to it in connection with carrying out its copyright responsibilities –  registering copyrights and recording copyright transfers. It doesn’t make sense that in today’s digital age, the Copyright Office’s records, under the control of the Librarian of Congress, are still searchable on microfiche. That’s one reason why, on numerous occasions, Free State Foundation scholars have contended the Copyright Office should be restructured to allow it to act independently of the Librarian of Congress. (See here, here and here.) Then, hopefully, it will be better able to perform the basic registration and recordation functions that are vital to enabling the negotiation and free market exchange of the rights to artists’ creations.

Even though the Transparency in Music Licensing and Ownership Act proposes to provide the Register of Copyrights with updated technology resources and additional staff to create and maintain the new musical works database, given the Copyright Office’s heretofore lackluster record regarding efforts to modernize its existing copyright-related databases and computer technology, and the government’s overall failures regarding the creation and operation of digital databases,  it would be preferable for the private sector to undertake the task. Recalling the difficulties with the Healthcare.gov database and website and various Veterans Administration databases and websites does not inspire confidence in the government’s abilities in this area.

So, give Congressman Sensenbrenner credit for highlighting a problem that needs to be addressed. But it needs to be addressed in the proper way – and that’s for a private sector entity with acknowledged expertise in the music licensing field to lead an effort to contract with an independent entity for the establishment and operation of a searchable database of all copyrighted musical works and sound recordings. This private sector solution almost certainly will be the most effective, efficient, sustainable, and least costly means to achieving Rep. Sensenbrenner’s objective.