Tag Archives: Copyright

The Music Modernization Act, With Changes Advocated by ARSC, Represents a Major Advance for Preservation and Access to Historical Recordings

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

On October 11, 2018, the president signed into law the Music Modernization Act, including provisions that greatly facilitate the work of sound archives and scholars. While by no means solving all the problems caused by draconian U.S. copyright law, it for the first time addresses some of those problems head-on and makes an impressive start on others. It is perhaps the most important copyright bill in forty years for those who seek to preserve and make accessible our recorded heritage.

The bill certainly did not start out that way, and the Association for Recorded Sound Collections, led by its Copyright and Fair Use Committee, has been deeply involved in ensuring that the legislation addressed the needs of the public as well as those of creators and commercial interests. Key provisions regarding sound recordings are as follows.

The Good:

  • Establishes a true public domain (all uses) for recordings for the first time. Initially this will be for pre-1923 recordings, but later it will include later years as well.
  • Applies federal exceptions and limitations for preservation activities (Sec. 107, 108) to all pre-’72 recordings.
  • Includes provisions to allow non-profit streaming of recordings which are verified to be out-of-print. This is a start on “orphan works.”
  • State law is preempted, ending the “patchwork quilt” of state laws that has so hindered archivists.

The Bad:

  • Pre-’23s will enter the public domain only after a three-year “transition period,” i.e. December 2021.
  • Later recordings get even longer “transition periods” tacked on to their nominal 95 year term. 1923-1946 recordings will have an effective copyright term of 100 years (95+5), and 1947-1956 recordings a 110 year term (95+15). Recordings made between 1957-1972 will go into the public domain in 2067, as previously.

ARSC has been actively involved in fighting for these changes for at least eleven years, against strong and entrenched interests in Washington, ever since the ARSC Board published its first public position on copyright in 2007. Its first goal was to bring recordings made before 1972 under federal (rather than state) law, which this bill accomplishes. ARSC was primarily responsible for instigating the U.S. Copyright Office study of the “desirability and means” of bringing pre-1972 recordings under federal control (2011), including addressing possible Constitutional issues, and contributed legal and other input to that study. It formed an industry coalition (www.recordingcopyright.org), submitted friend-of-the-court briefs in cases brought by “Flo and Eddie” which sought to head off compromise legislation by obtaining industry benefits through the courts, and it held numerous meetings with government officials and others to apprise them of the unique challenges regarding historical recordings.

Credit is due to many persons and organizations with whom ARSC worked in the course of this long endeavor, notably former Representative David Obey (who sponsored the legislation triggering the Copyright Office study), the U.S. Copyright Office (which carried the study out with thoroughness and professionalism), the public interest organization Public Knowledge (which took the fight to Congress in the critical final months), and Senator Ron Wyden (who championed key changes in the Senate). All were critical to the success of the legislation as enacted.

The Music Modernization Act is compromise legislation in the best sense of the word, where no one got everything they wanted but all benefited. It was totally non-partisan. It contains many provisions benefiting industry stakeholders, among other things streamlining music licensing by setting up a publicly accessible database and a collective to identify and pay owners of songs, distributing royalties for songs whose owners can’t be identified to current publishers, giving recording rights owners their long-sought royalties for streaming of pre-’72 recordings, and for the first time paying royalties to producers of recordings.

This is not the end of the battle for copyright law that better serves the American public. Many things still need to be done, including updating exceptions for preservation work, allowing broad use of orphan works, and reining in overly long copyright terms. I hope that a new generation of ARSC members will take up the fight. This success against overwhelming odds shows that it can be done.

ARSC Position on the CLASSICS Act

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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:

A Circle and a “C”: One Hundred Years of Recorded Music in American Copyright, Part 35 || By Bruce D. Epperson

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Part 35

Judge Graffeo then used Wheaton v. Peters as a springboard for a lengthy analysis that has been heavily criticized because it bounced indiscriminately back and forth between cases dealing with two different issues: does the issuance (“publication”) of phonorecords under the 1909-1976 Copyright Act divest the owner’s right to the sound recording; and, does it divest the owner’s right to the composition contained on the recording? As we have seen in the previous installments of this blog, these are very different issues, each with their own history and law, but Graffeo mashed them together indiscriminately.

The Fred Waring and Paul Whiteman cases from the 1930s, the Metropolitan Opera v. Wagner-Nichols case (1950), Capitol Records v. Mercury Records (1955), Goldstein (1973), Rosette v. Rainbow Records (1976), and even the Z. Z. Top and Rolling Stones cases from the 1990s — Graffeo threw them all into the rhetorical pot. It seemed at first reading to create a nonsensical mishmash. But if you dig deeper, you can discern in Judge Graffeo’s legal ping-pong a common theme:

State common-law copyright protection can continue beyond the technical definition of publication in the absence of contrary statutory authority . . .because the federal Copyright Act did not protect musical recordings, state common-law could supply perpetual copyright protection to recordings without regard to the limitations of “publication” under the federal act . . . until 2067, no federal or state statutory impediment constricts this common-law durational component for pre-1972 sound recordings.

This meant that no “rule of the shorter term” applied. Regardless of when a work’s copyright expires in its home nation, its copyright is perpetual in the State of New York. I have argued previously that given the convoluted language of section 301 of the 1976 Copyright Act, there is some question as to what exactly will happen to the legal status of pre-1972 phonorecords on February 15, 2067. I also looked for some hint in this case that Judge Graffeo thinks that New York common-law copyright will outlast the federalization of pre-1972 phono records. But, her language is pretty ironclad; she has no doubt that they will pass out of the control of state law on February 15, 2067, unless Congress changes the date:

With the 1971, 1976 and subsequent congressional amendments to the federal Copyright Act, New York common law protection has been abrogated . . . state common-law copyright protection is no longer perpetual for sound recordings not covered by the federal act . . .The musical recordings at issue in the case, created before February 15, 1972, are therefore entitled to copyright protection under New York common-law until the effective date of federal preemption—February 15, 2067.

And finally, tucked in at the very end of her opinion, was an admission that “New York provides common-law copyright protection to sound recordings not covered by the federal Copyright Act, regardless of the public domain status in the country of origin, if the alleged act of infringement occurred in New York” [emphasis added]. In addition:

A copyright infringement cause of action in New York consists of two elements: (1) the existence of a valid copyright; and (2) unauthorized reproduction of the work protected by the copyright. 

You can read Capitol Records v. Naxos of America up, down, forwards and backwards, and you will never read a flat-out conclusion that Naxos committed copyright infringement. And the reason I believe you won’t is because they didn’t. They did not reproduce any of the CDs that were the subject of the controversy in the State of New York. So, in accordance with the 1973 Goldstein decision, Naxos could not have violated any New York music piracy or state copyright law. Moreover, they did not distribute CDs in the state knowing they had been reproduced without the permission of a legitimate owner.

From the perspective of Judge Graffeo, this was never a case about what Naxos did or didn’t do—that was irrelevant. This was a case about power. It was about who got to determine whether something was “published” or not: the state of New York or the federal government. Moreover, it will be New York’s law, not the federal government’s, that will be compared with foreign law to determine how ownership and duration should be awarded to a foreign-origin work. In essence, in matters of common-law copyright, New York will act as its own sovereign nation.

Will Capitol Records v. Naxos of America change the legal landscape? I doubt it. I don’t see it being used much as legal precedent, even in New York. I think Capitol v. Naxos was a lot of smoke and noise that didn’t really stand for much—after all, it never reached a conclusion on the core issue of infringement. The only thing you can take from it is this: don’t press your reissue CDs in the State of New York. And, it would probably be a pretty good idea to avoid selling them there as well.

Finis…