Why the CLASSICS Act Should Be Removed from the Music Modernization Act

Leave a reply

Post written by the ARSC Copyright Committee. See also ARSC Position on the CLASSICS Act, published March 12.

The Music Modernization Act, which includes the CLASSICS Act, is about to be voted on in the U.S. House and Senate. CLASSICS should either be amended or removed to avoid compounding one of the worst mistakes ever made in federal copyright law.

In the 1970s, when it finally brought sound recordings under federal copyright protection, Congress made what is now generally considered a “mistake.”[i] Fearing that bringing recordings made before 1972 (the effective date of the new law) under federal law would somehow open them to piracy, it left those older recordings under state law. The assumption was incorrect, and resulted in a split system in which millions of older recordings remained under a confusing patchwork of state laws, hobbling the libraries and archives charged with preserving them and eliminating any real possibility of a public domain for very old and historic recordings. Recordings are today the only type of Intellectual Property saddled with these restrictions.

For the last ten years, as our fragile recorded legacy crumbles and is largely hidden from sight by copyright restrictions, many have urged Congress to fix this problem. Congress commissioned two studies of the issue, requesting a recommendation from the U.S. Copyright Office and a comprehensive audio preservation plan from the Library of Congress.[ii] Both of these solicited input from the public and private sectors, and from experts, and both strongly recommended bringing pre-1972 recordings fully under federal law.

Then a funny thing happened on the way to legislation.

Federal copyright is a balanced regime with benefits for everyone, rights holders, the public, and the libraries and archives that preserve our heritage and make it available to students. The large record companies (initially opposed to federalization) decided that they liked the benefits they would get, specifically streaming royalties, but not benefits for others. So they fashioned a law that essentially got them what they wanted, while giving nothing to others.

How to sell such a law? Dress it up with some famous names, claim that it benefits all creative artists (when in fact most revenue goes to the labels), and package it with a more popular piece of legislation, the Music Modernization Act (MMA). Winners will be the labels (especially the largest, foreign-owned, labels) and their million-dollar lobbyists. Losers are libraries, archives, and the public they serve. And they are not only losers today. It is generally agreed that given Congress’s difficulty modifying copyright, once this passes there will not be another opportunity to right this wrong for decades–probably for half a century, which is how long the current state-based regime is scheduled to last.

There is much that is worthwhile in the rest of the MMA. CLASSICS could conceivably be fixed, or at least made less harmful, by adding language to preempt state law and create a true public domain for recordings more than 95 years old, and applying all the exceptions granted to libraries and archives for preservation purposes. Or it could just be removed.

Once they have grabbed the piece they want, there will be no incentive for the labels to compromise with the public interest. Why should they?

Congress should defeat this land-grab, which ignores the recommendations of its own experts as well as the public interest in favor of the demands of one interested party. It is well documented that private rights holders have no financial interest in preserving or making available significant numbers of historical recordings.[iii] That’s the job of libraries and archives. Passage of the CLASSICS act will aid and abet both the gradual destruction of our audio heritage, and its availability to and appreciation by generations of Americans.

Will CLASSICS do actual harm? You bet it will. We will almost certainly be paying the price for this ill-conceived legislative add-on for many years to come.

Association for Recorded Sound Collections Copyright and Fair Use Committee, Tim Brooks, Chair – info@recordingcopyright.org

Notes:

[i] This is the term used in the discussion of legislative history in the U.S. Copyright Office report “Federal Copyright Protection for Pre-1972 Sound Recordings,” December 2011, 15. Hereafter “USCO 2011 Report.” Note that since Congress did not clearly indicate why it was excluding pre-1972 recordings two possible reasons are given, but based on the evidence “simple mistake” is cited as most likely.

[ii] USCO 2011 Report and National Recording Preservation Board, “The Library of Congress National Recording Preservation Plan,” December 2012, 42.

[iii] Tim Brooks, “Survey of Reissues of U.S. Recordings” (2005), commissioned by the Council on Library and Information Resources and the Library of Congress, documents that only 6% of historically important recordings made before 1940 are available from the rights holders; 2% of those made before 1920 are available.

ARSC Position on the CLASSICS Act

1 Reply

Post written by Tim Brooks, ARSC Copyright and Fair Use Committee Chair.

The Association for Recorded Sound Collections is concerned about major changes to copyright that are currently before the U.S. Congress. While the needs of financial stakeholders have been taken into account, those of libraries, archives – and the public – may not be.

Several bills are poised to be introduced in the near future, possibly within days, and are believed likely to pass. Details are still in negotiation. ARSC is most concerned with the CLASSICS act (House bill H.R. 3301, Senate bill S.2393), which would be an important win for recording copyright holders (e.g. Sony, Universal), granting them streaming royalties for recordings made before 1972. Current federal law only covers recordings made after 1972. We think that this fix is justified, and support that goal of the bill.

However, under normal copyright law such benefits are supposed to be counterbalanced by an eventual public domain for the public and exemptions for libraries and archives so that they can preserve and make available historical recordings. The legislation, as initially drafted, ignores the first issue and falls short on the second. Under present law, there is effectively no public domain for sound recordings in the U.S., and won’t be for at least another fifty years. Recordings are the only type of intellectual property in the U.S. with no public domain, and the U.S. is the only major nation that doesn’t provide for one.

Once this bill passes, it is unlikely that other copyright legislation will be enacted, possibly for many years.

ARSC along with other academic organizations urge that provisions be included in the bill that would establish a public domain for these newly covered recordings, consistent with other intellectual property, as well as allow archives to legally preserve all copyrighted recordings.

Commercial sound recording began in 1890, and since then a huge and rich cultural heritage has been built up, including the songs and speech of immigrant and minority groups, the early sounds of jazz, country music, the theatre, soul music, and so much more. The films of Charlie Chaplin are freely available, and so are thousands of literary works such as those of Robert Frost and O. Henry and The Wizard of Oz. Why shouldn’t recordings be treated the same? We believe this national treasure should be preserved and available to students and the public today. But virtually all of it is owned by copyright holders who are not equipped to permanently preserve it or incentivized to make it available. That is the job of libraries and archives. With no public domain and inadequate provisions for preservation activities, America’s sonic heritage is in danger of disappearing altogether.

The CLASSICS Act is being drafted by the House and Senate Judiciary Committees, which are chaired by Rep. Bob Goodlatte of Virginia and Sen. Chuck Grassley of Iowa, respectively. We urge them to consider the needs of the public, as well as the libraries and archives that serve it, in finalizing this legislation.

Contact:

Matthew Barton, ARSC President : sndtrackng@aol.com

Tim Brooks, Copyright and Fair Use Committee Chair : tim@timbrooks.net

References:

From Archive to Classroom: The Radio Preservation Task Force in 2018

Leave a reply

Post written by Christine Ehrick, University of Louisville

On November 2-4, 2017, the second national meeting of the Radio Preservation Task Force took place in Washington D.C. Created in 2014, the Radio Preservation Task Force (RPTF) is a project of the Library of Congress’s National Recording Preservation Board, tasked with locating, assessing, and facilitating the preservation of archival radio. In the past few years, the RPTF has grown into a wide-ranging association, comprised of hundreds of professors, archivists, collectors, and practitioners. The Task Force also has many affiliates and institutional partners, including the Smithsonian Center for Folklife and Cultural Heritage, the Hoover Institution Library and Archives, the International Communication Association, and the National Council on Public History.

Public Broadcasting at 50 – RPTF Conference 2017. Photo by Christine Ehrick

Organized around the theme “From Archive to Classroom,” the 2017 conference brought collectors, archivists, scholars, and practitioners together to discuss preservation strategies, grant writing opportunities, and best practices for bringing more archival radio into the classroom. The conference also featured special sessions of the Cold War Media Project, sponsored and partially hosted by the Woodrow Wilson Center and the Hoover Institution, and a discussion of the history of National Public Radio with one of its founders, Bill Siemering. Participants were also invited to attend a panel discussion on the Fiftieth Anniversary of the Public Broadcasting Act, featuring well-known public broadcasting veterans like Jim Lehrer, Cokie Roberts, and Dick Cavett. Working sessions covered a broad range of radio history and preservation topics, including panels on Native American and Spanish Language/Multilingual Radio, Podcasting, and Journalism. As opposed to a more traditional academic conference, with speakers presenting the results of past and current research projects, the November gathering was structured as a working conference: participants were encouraged to share experiences and discuss strategies for advancing the work of radio preservation in the US and beyond. With the New Year, the Task Force has begun to implement some of the plans made in November.

Of particular interest to this blog is perhaps the Endangered Collections panel, which focused on the challenges and opportunities facing endangered radio collections. Some of the main challenges:  radio still takes a back seat to media like film when it comes to archival preservation priorities; continued concerns and caution about intellectual property issues, especially among “risk averse” institutions such as university libraries; and significant shelf space limitations even among institutions who might otherwise be willing to accept endangered radio archives. Collections most likely to overcome the above obstacles, it seems, are those documenting the experience of marginalized communities (indigenous and other communities of color; broadcasts from the LGBTQ community). Task Force members were encouraged to engage in more aggressive marketing of its work and radio preservation generally. Among other things, raising awareness of the importance and fragility of this piece of the nation’s cultural history may help change the calculation (and allocation) of archival shelf space and collection priorities, hopefully without pitting endangered media against each other. The RPTF was encouraged to participate in wider conversations about the ethics (and ecology) of preservation and ongoing conversations about copyright and audiovisual preservation and access. The Endangered Collections group is currently working to identify collections and identify partnerships with academic institutions and educators, with the goal of facilitating the preservation, access, and use of endangered collections.

Even where there may be institutional support (and shelf space) for the preservation of archival radio, budget constraints can make places like university libraries hesitant to take on radio preservation projects.  Grant writing will thus be another important feature of this next phase of RPTF work. The Caribbean caucus for example, is working hard to find financial support and an institutional partner to preserve an endangered archive of a long-running Haitian-American radio program out of New York City. Thus in addition to documenting collections, Task Force members are encouraged to identify and pursue grants and other funding sources that can help these collections find a good archival home.

Finally, a key component of raising the profile of radio preservation is the expanded used of radio archives in the classroom. This was the main focus of the conference’s combined Education Sessions, which focused on three interrelated questions: how to promote the study of sound and radio history across a range of disciplines; how to devise effective assignments and learning materials that center on sound and make use of archival materials; and how to identify and address the challenges to integrating the study of radio and sound into curricula. In this large, informal session, participants shared their experiences with using archival radio in the classroom and discussed strategies for expanding that use into a variety of educational settings at a variety of levels.  Following up on the conference discussion, the RPTF Education Group has issued a Call for Materials asking group members to contribute syllabi, assignments, and other related educational materials that “promote and enhance the study of radio history and sound at all levels of the curriculum and across multiple disciplines.”  The RPTF will collect, organize and distribute to relevant professional associations. The group also plans to develop course templates for university and K-12 classrooms (on media history, U.S. history, and other relevant topics) using RPTF materials and raising awareness about and encouraging the use of archival radio in a variety of pedagogical settings.

The second conference of the Radio Preservation Task Force, in sum, was an inspiring and historic encounter of the varied individual and institutional components of any viable preservation strategy. Participants asked challenging questions, discussed innovative strategies, and made productive connections. The task in 2018 is to put this all this work into practice in order to continue and expand the RPTF’s urgent work to save a vital yet rapidly deteriorating piece of our collective cultural heritage. For updates about ongoing RPTF projects, please follow the official Twitter or join the join the discussion on Facebook.

Christine Ehrick is the Communications Director for the RPTF. Thanks to Alejandra Bronfman, Allison Perlman, Derek Vaillant, and Josh Shepperd for their input.