The One Situation Where Record Labels Fear Federal Copyright: Old Sound Recordings

Copyright

from the keep-the-public-domain-away! dept

Last year, we were among those who noted a significant problem for sound recordings from about a century ago. While under federal copyright law, works published before 1923 are in the public domain, when it comes to sound recordings, it’s a different story. That’s because, for quite some time, Congress did not even believe copyright law could apply to sound recordings (which is kind of funny when you realize how many in the recording industry now seem to assume that copyrights on recordings are some sort of birthright). Instead, however, various state laws covered the gap… and did so by creating copyright laws that were even more ridiculous than the federal one. Because of that, many old sound recordings may never enter the public domain, or if they do it won’t be for another 50 or 60 years. And, in the meantime, many of those recordings will disappear.

This is of big concern to those who wish to preserve and share the culture from a century ago. After this issue started to get some attention, the Copyright Office agreed to look into things and just held some hearings on the issue. Copycense attended the event and shared copious tweets on the events. As an experiment, I’m going to try to collate some of the more interesting tweets, embedded below, but provide commentary here. There are a few key statements that were made that I’ll address in separate posts, but this one will cover the general discussions held during the day.

What becomes clear is that there’s a big divide between the legacy industry (record labels & publishers) and librarians and cultural researchers who fear that these works are dying. The people actually concerned about preserving the works are horrified at what’s happening, noting that culture is disappearing — and predominantly impacting “people of color,” whose work would be freely available for all to hear if their recordings had been covered by traditional copyright, or done in any other country. Others point out that if librarians can’t preserve these works, they may disappear forever.

The response from the music business guys is ridiculous — but expected. They insist that covering these works under traditional copyright would harm artists (seriously). Rich Bengloff, the head of A2IM (mini-RIAA), insisted that covering these works under federal copyright law would “bring less investment to roots music.” Huh? How does that make any sense? The RIAA also worried that there would be “costs” associated with covering these works by copyright, and that it would “raise ownership questions.” This is laughable. There are already “ownership” questions, which is why we’re stuck in this quagmire in the first place. The RIAA pointed out that “we have concerns that federalization would negatively affect economic value.”

That, of course, is ridiculous. First, the vast majority of the works we’re talking about no longer are being marketed in any way shape or form. They’re disappearing. The few works that are still an issue would still have federal copyright law, which is already pretty strict. The only works that would really have a change are those from before 1923, and that’s fine. It’s what’s good about the public domain. Thankfully, one of the representatives from library groups pointed out that work that goes into the public domain “increases value to the public,” which is what copyright is supposed to be about. Furthermore, as others quite reasonably pointed out, just because something is in the public domain, it doesn’t mean you can’t make money off of it. Just look how many publishers make money selling public domain works.

The RIAA then tried a different tack, insisting that the libraries concerned about all this are being silly, because “according to our research,” no library has been sued over this issue. Isn’t that comforting? Of course, you never know when a lawsuit might be filed, and the law clearly allows one to be filed. Most libraries wouldn’t take that risk. Thankfully, the brand new Registrar of Copyrights, Maria Pallante, was quick to point out that simply wishing libraries become less risk averse is not a reasonable answer here.

Hilariously, the National Music Publishers Association people (NMPA) responded to a question about how taking away 50 different state laws, and moving these works under the single, well-known, standard of federal copyright law would make things “more confusing” by claiming that it would create “uncertainty.” Huh?!? On the one hand, we have 50 different, confusing and rarely tested laws. On the other, we have federal copyright law and loads of caselaw. And the NMPA is actually claiming that federal copyright law would be more confusing? Even more ridiculous is Bengloff’s claim that because under those state laws most works will go into the public domain in 2067, it “makes it easy to know what we’re working with.” Except we also know what we’re working with under federal copyright law.

Later, Bengloff claims that there’s a risk because labels have “invested millions of dollars” in these works. Again, this is misleading and ridiculous. The works still covered by federal copyright would remain in the control of the copyright holders. Furthermore, someone from the Library of Congress properly pointed out that the LOC (and other libraries) have also invested millions in trying to preserve these works. A representative from libraries reminded people that the public is a stakeholder here as well (though apparently not directly represented at the hearing).

Finally, at the end of the day, the real issue makes itself known. The labels and publishers want to avoid “federalization” because they know that this would bring back “termination rights” for the musicians themselves. As you hopefully know, the labels have been vigorously fighting the fact that the musicians themselves can reclaim their own copyrights by “terminating” the copyright assignment. A decade ago, the RIAA was able to sneak a law through Congress (literally by adding a line in the middle of the night that no one noticed until after the bill passed) that turned all such recordings into “works made for hire,” which removed termination rights. An outcry from artists (for once) resulted in Congress fixing that “mistake” quickly, but the labels are still infatuated with this, and are gearing up for legal fights over termination rights soon.

It appears the real issue here is that under these state laws, there are no termination rights, meaning the artists themselves can’t reclaim the copyrights, and the labels and publishers get to hang onto them for a few more decades. Putting things under federal copyright law would open up an opportunity for artists to get their copyrights back. And, we can’t have that.

What’s really appalling here is that the label/publisher representatives still pretend to represent artists here — and one even declares that the labels interests really are aligned with artists’ interests, when the subtext of this debate shows that’s not true at all.

If you want to see many of the key tweets this is based on, and are reading this via RSS or on the front page, click “read more” below to see a sampling of the key tweets.

Filed Under: copyright, public domain, sound recordings, termination