Tag Archives: Music Modernization Act

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

1 Reply

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 Urges Passage of the Access to Recordings (ACCESS) Act

7 Replies

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.

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.