Today, the American Music Fairness Act (“AMFA”) will take a step forward as the bill is set for mark up with the House Judiciary Committee. The Copyright Act provides exclusive rights to publicly perform sound recordings by means of digital audio transmissions (e.g., internet and satellite), and AMFA is the latest attempt to extend such rights to analog audio transmissions (e.g., terrestrial radio).
Marking up the bill at this late stage of the Congressional term may mean the bill is tacked on to end-of-year spending packages (as with the CASE Act in 2020), or more likely that it will be taken up again next Congress. With bipartisan and bicameral support of members on the relevant Committees of jurisdiction, AMFA could still move in a divided Congress, making it all the more important for stakeholders to engage now if they want to support or make changes to the bill.
The AMFA Bill
The bipartisan AMFA bill was first introduced in the House on June 24, 2021 (H.R.4130), and its companion Senate bill followed on September 22, 2022 (S.4932). Rep. Jerry Nadler (D-NY) recently became the House bill’s primary sponsor after its original sponsor Rep. Ted Deutch (D-CA) left Congress.
The bill would amend Section 106(6) of the Copyright Act, which provides the exclusive right to publicly perform sound recordings via “digital audio transmission,” by deleting the word “digital.” AMFA also attempts to address some criticisms that faced similar predecessor bills. For example, AMFA proposes low flat fees for certain nonsubscription broadcast transmissions by public or smaller commercial stations, and other fees would be set in rate-setting proceedings before the Copyright Royalty Board. Such rate-setting proceedings would take account of economic, competitive, and programming information, and whether transmissions substitute for or promote record sales, and interfere with or enhance other revenue streams for sound recording owners.
The House Judiciary Committee marking up the bill this late in the current Congress creates a couple possibilities. Based on the fact that the bill also has bipartisan support in the Senate with Senators Alex Padilla (D-CA) and Marsha Blackburn (R-TN) as primary sponsors, it could be included in an end-of-year spending package. As with almost all legislation seeking to be added to an omnibus spending bill, this possibility is not particularly likely (although another copyright amendment, the CASE Act of 2020, is a recent exception). What is more probable is that the bill may be considered again next Congress. Rep. Darrell Issa (R-CA) is one of the main sponsors in the House and is expected to Chair the House Judiciary Subcommittee with jurisdiction over copyright issues, and Senators Padilla and Blackburn may very well remain on the Senate Judiciary Committee. With that sort of bipartisan and bicameral support, AMFA falls into the category of legislation that could still move in a divided Congress, making it all the more important for stakeholders to engage now if they want to support or make changes to the bill. Even after the House Judiciary Committee approves the bill, there is still an opportunity to implement changes before it is included in an end-of-year spending package or is taken up again next Congress. Specifically, with an eye toward next Congress, it is important for stakeholders to start voicing their opposition or support to important offices, or drafting relevant amendments for possible adoption.