Post written by Tim Brooks, Copyright and Fair Use Committee Chair, and approved by Cary Ginell, ARSC President, as an official ARSC position. You can write Tim at info@recordingcopyright.org or Cary at originjazz@aol.com with questions or comments.
The Association for Recorded Sound Collections has long been concerned with aspects of U.S. copyright law that impede the ability of libraries and archives to preserve our recorded heritage, and make it available to scholars and the public. Chief among these is the exclusion of sound recordings made prior to 1972 from the normal federal copyright regime. Instead, millions of historical recordings have been left under state laws which are both inconsistent from state to state and for the most part fail to recognize the needs of libraries, archives or the American public.
The CLASSICS Act, a part of the Music Modernization Act (S.2823), will make this situation even worse. It extends to rights holders of pre-1972 recordings a new streaming benefit while ignoring the needs of other constituencies, reducing access to historical recordings, and lengthening the already overly long federal term of protection for many recordings.
Now there is an opportunity to correct this.
The Accessibility for Curators, Creators, Educators, Scholars and Society to Recordings Act (“ACCESS to Recordings Act”) (view press release / download bill text), recently introduced by Senator Ron Wyden, provides a simple remedy for most of these problems. It will bring pre-1972 recordings under federal copyright, making them consistent in term and protection with all other intellectual property. This will greatly facilitate the work of libraries and archives and make a great deal of historical material available to the American public, without harming rights holders in any meaningful way. In fact rights holders will get the same benefits under ACCESS that they reap under CLASSICS (i.e., streaming royalties), and other benefits as well (protection against unauthorized reproductions and performances in any format). ACCESS also serves the public by facilitating preservation and scholarly dissemination and, importantly, establishing a public domain for recordings more than 95 years old–consistent with all other Intellectual Property.
Congress commissioned two expert studies regarding pre-1972 recordings, and both strongly recommended bringing them under federal copyright.[i]
Copyright is supposed to be a balance between rewarding rights holders and serving the public interest. Carving out one rights-holder benefit (streaming royalties) while ignoring the needs of the public, as CLASSICS does, is hardly a balance.
We urge the Senate, and the Congress, to replace CLASSICS with the ACCESS act before moving forward with the Music Modernization Act.
Notes
[i] U.S. Copyright Office, “Federal Copyright Protection for Pre-1972 Sound Recordings,” December 2011, ix; and National Recording Preservation Board, “The Library of Congress National Recording Preservation Plan,” December 2012, 42.