Of Course The RIAA Would Find A Way To Screw Over The Public In 'Modernizing' Copyright

from the modernization-for-us,-but-not-for-you dept

I haven’t had a chance to write much about the latest attempt to update copyright law in the US, under the title of the “Music Modernization Act,” but in part that was because Congress did something amazing: it came up with a decent solution to modernizing some outdated aspects of copyright law, that almost everyone agreed were pretty decent ideas for improvement. The crux of the bill was making music licensing easier and much clearer, which is very much needed, giving what a complete shit show music licensing is today.

There was a chance to have this actually create a nice solution that would help artists, help online music services and generally make more works available to the public. It was a good thing. But… leave it to the RIAA to fuck up a good thing. You see, with there being pretty much universal support for the Music Modernization Act, the RIAA stepped in and pushed for it to be combined with a different copyright reform, known as the “CLASSICS Act.”

What is the CLASSICS Act? Well, it’s actually based on a good idea — fixing the mess that is pre-1972 sound recordings. We’ve written about this for years, and without getting too deep into the weeds, the basic thing is that prior to February of 1972, sound recordings were not covered by federal copyright. Compositions were still protected, but not the actual recording. To deal with that, various states set up their own state-based copyright laws for those works — sometimes in statute, sometimes through common law. But, as part of the “transition” of bringing sound recordings into federal copyright, Congress also (ridiculously) said that sound recordings prior to 1972 would remain under whatever ridiculous state copyright laws existed until 2047. And thanks to Sonny Bono, that got pushed back to 2067. As Public Knowledge points out, that’s created a ridiculous situation, keeping important works out of the public domain for nearly two centuries:

State copyrights are, for all intents and purposes, indefinite. Back in 1972 — when Congress first federalized (new) sound recordings — Congress sought to ?fix? this problem by declaring that all state copyrights in pre-?72 sound recordings would expire on February 15, 2047. They picked 2047 so that recordings made immediately prior to the new law?s passage (i.e. the last sound recordings protected only by state copyright) would be kept out of the public domain for a full 75 years, the same as their newer, federally-protected counterparts.

However, because that 2047 date applied indiscriminately to all sound recordings made before 1972, recordings ended up with mind-boggling terms of potential state protection. Thomas Edison?s original sound recordings, made in 1877, wouldn?t be guaranteed to enter the public domain until 170 years after it was first created. Congress doubled down on this decision in 1998, pushing the date back another 20 years, to 2067. That Edison recording now is kept out of the public domain for 190 years — enough to provide theoretical royalties to eight generations of the original artist?s descendants. As a result, with a few exceptions (mostly when artists have affirmatively committed their works to the public domain) there are no sound recordings in the public domain in the United States, period.

As we’ve noted for years, the proper way to fix this is just to put pre-1972 sound recordings under federal copyright law, and give them the same public domain date they would have received if they had been covered by federal copyright law all along. This is not, by any means, a perfect solution. It has some additional drawbacks, but at a high level, it puts all sound recordings on a level playing field and makes sure that there isn’t confusion over different treatments for a song recorded in March 1972 from one recorded in March of 1971.

But that’s not what the CLASSICS Act does. While it claims to put those works on the same footing as federal copyright law, it only does that part way. It sets it up so that streaming services providers will now have to pay performance royalties on the pre-1972 works (after a bunch of court rulings — but not all — have suggested they don’t need to pay such fees). Again, that’s fine if it puts all the works on the same level playing field. But the CLASSICS Act doesn’t quite do that. It just adds the “pay the RIAA” part, and leaves out the “oh yeah and let these works go into the public domain on the same schedule as all other works” part. In other words, under the CLASSICS Act, these royalties will have to be paid way beyond when those works should go into the public domain.

Public Knowledge further points out that the CLASSICS Act also ignores termination rights, which would benefit artists (but hurt the labels) and could also cause serious harm to archives and libraries:

Most of the protections that libraries, archives, and other nonprofits rely upon apply specifically to reproduction and distribution of works, but not to their public performance. CLASSICS/MMA 2 creates a federal right that covers performance, but not reproduction or distribution — those parts of the copyright regime that serve as the lifeblood of these institutions.

EFF highlights some more issues with the CLASSICS Act, including how it would basically lock in existing providers like Pandora, Spotify and Sirius XM, but cause problems for any upstart:

Creating new barriers to the use of old creative works is not what copyright is for. Copyright is a bargain: authors and artists get limited, exclusive rights over their works as an incentive to create. In return, the public is enriched by new art and authorship and can use works in ways and times that fall outside the rightsholder?s zone of exclusivity. Creating new rights in recordings that have been around for 46 years or more doesn?t create any new incentives. It simply creates a new subsidy for rightsholders, most of whom are not the recording artists. The CLASSICS Act gives nothing back to the public. It doesn?t increase access to pre-1972 recordings, which are already played regularly on Internet radio stations. And it doesn?t let the public use these recordings without permission any sooner: state copyrights will continue until 2067, when federal law takes over fully.

The CLASSICS Act will put today?s digital music giants like Pandora and Sirius XM in a privileged position. Many of them already pay royalties for some pre-72 recordings as part of private agreements with record labels, on terms that simply won?t be available to smaller Web streamers like college and independent radio stations.

Unfortunately, this combined Frankenstein of the bill with both the good stuff and the bad sailed through the Judiciary Committee this week.

You will, undoubtedly, see stories celebrating this bill moving forward. And many of them will make accurate statements about how parts of this bill are really good. But parts of it are really bad and damaging to the public domain. The proper response would be to fix the CLASSICS Act such that it actually modernizes pre-1972 works by putting them under federal copyright law, rather than this half-assed way that only adds in the licensing requirements, without the rest of what copyright law is supposed to bring us.

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Comments on “Of Course The RIAA Would Find A Way To Screw Over The Public In 'Modernizing' Copyright”

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Anonymous Coward says:

PROPER proper fix

As we’ve noted for years, the proper way to fix this is just to put pre-1972 sound recordings under federal copyright law

Or how about we just put them in the public domain now? If someone hasn’t made money in 46 years or more, the next 46 years are unlikely to be much more profitable.

ECA (profile) says:

Love it..

No family left and the Corp gets all the money??

wonder WHY there are persons that RECORD EVERYTHING??
And HOW we got over 200+ TV broadcasts of Dr. WHO??
REALLY, the BBC had to run around this planet, FINDING people and companies that had MADE COPIES from 30+ years ago..

HOW about, that the recording Industry is as bad as the movie industry IN UPGRADING THE FORMATS…that Old TAPE is DEAD, and torn up and Static ridden…and magnetic TAPE slowly destroys itself…

OR, iots sold to private concerns/people into a collection WE WILL NEVER SEEEEEE….also, ASK them if they have the ORIGINAL BURN/COPY..the master..
Cause if they DONT…I dont think they have ANY RIGHTS LEFT./.

That One Guy (profile) says:

Re: 'You break the deal, yet expect me to uphold it? Yeah, no.'

I don’t bother myself(no need), but continued and consistent attempts to screw the public over do occasionally make me want to, for turnabout if nothing else. If nothing else acts like this do make it so that I just can’t find it in myself to condemn those who do engage in copyright infringement.

‘You repeatedly refuse to uphold your side of the bargain, and in fact time after time engage in acts making things even worse for me? Alright, the deal is off. If you’re not going to play fair, why should I?’

Anonymous Coward says:

Re: So...

If the elite ruling class does not control everything that means the pirates have won and we can not have that at all. Better to enslave everyone than risk even one potential piracy. This all makes sense because one recording is worth much much more than many human lifes. Think of the copyright for once – sheeesh.

That One Guy (profile) says:

Makes sense

To the copyright maximalists, copyright is still fatally flawed in that it isn’t literally eternal(just effectively), and that there still exists situations in which they might not get money, or as much money as they think they deserve(which of course is ‘all of it’).

As such any ‘modernization’ influenced or ‘guided’ by them would attempt to address these terrible ‘oversights’ in the law.

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