Compromise Music Modernization Act Will Bring Old Sound Recordings into The Public Domain, Tiptoe Towards Orphan Works Solution

from the some-good-things dept

Earlier this year we wrote about the significant concerns we had with the CLASSICS Act, that sought to create a brand new performance right for pre-1972 sound recordings, requiring various internet platforms to pay for that additional right to stream such music. As we've discussed for years, pre-1972 sound recordings are kind of a mess in the copyright world. That's because they weren't covered by federal copyright law -- but rather a mess of state laws (some statutes, some common law). Historically, none of that included a performance right, but some courts have recently interpreted one to exist (while others have said it doesn't). On top of that, some of those state laws mean that certain works will remain covered by copyright for many decades after they would have gone into the public domain under federal copyright law.

Many people have advocated for "full federalization" of those pre-1972 works, taking them away from those state copyright laws, and putting them on an even playing field with all other copyright-covered works. There is an argument against this, which is that doing so also creates brand new rights for works that are decades old, which clearly goes against the purpose and intent of copyright law (incentivizing the creation of new works for the public), but given what a mess having two (very different) systems entailed, it seemed like full federalization was the most sensible way forward.

Of course, rather than pursue that path, the RIAA pushed through something much worse and totally one-sided. The CLASSICS Act created a new performance right for pre-1972 sound recordings, but left out the federalization part. In other words, the copyright holders would get all of the benefits of this new law, and the public would still be unable to have these recordings go into the public domain for many, many decades. Senator Wyden introduced an alternative bill, the ACCESS Act, which pushed for full federalization.

Over in the House, the CLASSICS Act was unfortunately merged with a separate bill, the Music Modernization Act (which is mostly uncontroversial) and voted through unanimously. However, it hit a stumbling block in the Senate -- leading to negotiations to create a compromise between Wyden's ACCESS Act and the original CLASSICS Act. That compromise has now been released and... it's actually fairly decent. To be clear, this is not how anyone would draw up copyright law from scratch, and there are still bits and pieces that concern me in the bill. But compared to where we were with the CLASSICS Act, this is a pretty big improvement. It does still create this brand new performance right for pre-1972 works, which seems to totally undermine the point of copyright law, but seeing as that was going to happen no matter what under the original CLASSICS Act, the compromise here seems much better -- as it makes sure that even as those works get this new right, they also will move into the public domain much faster than they otherwise would.

The key elements in this compromise bill include full federalization of pre-1972 sound recordings, putting all copyright works under the same system. There is a slightly weird tiered system for gradually moving pre-1972 sound recordings into the public domain where they belong. The new rules set a copyright term of 95 years after the date of publication -- bringing works into the public domain much sooner than they would have been if they remained under state law (where the term could have gone up to 190 years or so). And then there's a set of "transition" periods for works to get them into the public domain:

PRE-1923 RECORDINGS.—In the case of a sound recording first published before January 1, 1923, the transition period described in subparagraph (A)(i)(II) shall end on December 31 of the year that is 3 years after the date of enactment of this section.

1923 - 1946 RECORDINGS.--In the case of sound recordings first published during the period beginning on January 1, 1923, and ending on December 31, 1946, the transition period described in subparagraph (A)(i)(II) shall end on the date that is 5 years after the last day of the period described in paragraph (A)(i)(I).

1947-1956 RECORDINGS.--In the case of sound recordings first published during the period beginning on January 1, 1947, and ending December 31, 1956, the transition period described in subparagraph (A)(i)(II) shall end on the date that is 15 years after the last day of the period described in subparagraph (A)(i)(I).

The really key part here is that first batch. Those are works where they should already be in the public domain under US law, as pre-1923 works are deemed to be in the public domain under federal law. But, since state laws have gone on much longer, we've locked up tons of important early US sound recordings, especially a ton of early jazz recordings that almost no one can hear. Under this law, those works will come into the public domain three years after the law is in place. Some will argue (reasonably!) that this is already too long, and you'd be right (also, that it's weird to give those very old works a new right just for a three year period). But it's better than having to wait until 2067 for them to be freed up entirely.

Now there's a second important idea put into this new bill -- which is a very, very, very light touch "orphan works" proposal. For decades now, plenty of people in the copyright space have fretted over what to do with the orphan works issue. This is an issue created by our own stupid copyright policies, in which, because the law no longer requires registration, there are billions of works where it is unclear who holds the copyright on those works, or even if there's any copyright at all. It's been a problem for many years that can seriously impact our ability to preserve historical culture, among other things.

Of course, every time Congress (and the Copyright Office) suggested proposals to deal with this issue (even bad suggestions and really bad suggestions), some copyright holders (mainly photographers) would freak out, and misleadingly claim that orphan works laws were designed to strip them of their copyright.

So, this new amended bill creates a very minor tiptoe towards an orphan works concept, just with sound recordings and only for "certain noncommercial uses of sound recordings that are not being commercially exploited." This is way, way, way too limited, but it's a start. Under the rules, someone engaged in non-commercial use (and boy, I can't wait to see the litigation fights over what counts as commercial v. non-commercial use...), has to make a "good faith, reasonable search" to see if a work is being commercially exploited. Following that, they have to file a notice with the Copyright Office announcing their intention to use the sound recording, allowing a 90 day period for someone to object. If there are no objections then, the work may be used in such non-commercial projects. This is extremely limited (way too much so), but hopefully will be useful to sites like the Internet Archive and various libraries. It would be nice if it went much further, but considering that no attempt to deal with orphan works has ever gone anywhere, this seems like at least a tiny step in the right direction. At the very least, hopefully it can be used to show that the world doesn't collapse when there is a way to make use of orphan works when the copyright holder cannot be found.


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  • icon
    Ninja (profile), 19 Sep 2018 @ 4:28am

    Cue copymorons mass hysteria and random, unrelated "BUT PIRACY" yells.

    So to summarize you got a ton of works under a Hellish patchwork of eternal copyrights and brought them to an equally bad federal law that at the very least chops the "eternal" out of the equation for the current generations?

    reply to this | link to this | view in chronology ]

  • icon
    Killercool (profile), 19 Sep 2018 @ 6:07am

    I fear it's inevitable...

    Should we assume that works from the specified time periods, that are already public domain, will be stolen by copyright for another 8 to 23 years?.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    P I Rates, 19 Sep 2018 @ 6:11am

    "the purpose and intent of copyright law" is protect Creators,

    NOT "(incentivizing the creation of new works for the public)".

    Your assertion there has the usual piratey / Googly / Youtube self-serving purpose of getting hold of works (new or old) for free.

    1A) The amount created increases automatically as becomes more valuable in more populous times and with complex hardware that provides ease of access. What ALWAYS matters is the protection, otherwise there's ZERO incentive to create new.

    1B) Young people want new crap, not old crap, therefore again automatically ensuring more creation. Much of what's "created" now doesn't even need to be "incentivized", that's just a false premise in your attack on the fundamental reasons for copyright at all.

    2) Since old works STILL have value in the current milieu, then it's proper to direct whatever income to more or less "rightful" owners, rather than allow undeserving grifters to use them for free.

    3) The notion that you push of old works being in public domain while still have commercial value is just wrong. The old time limits are what's out-dated, needed greatly expanded in our new modern world. That longevity was not anticipated a couple hundred years ago.

    4) IF your notions on "capitalism" were consistent, then you'd advocate as BEST way to ensure works are available is to provide possibility of profit for publishing / archiving, NOT languishing in haphazardly funded random places run by one eccentric.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 19 Sep 2018 @ 6:22am

      Re: "the purpose and intent of copyright law" is protect Creators,

      NOT "(incentivizing the creation of new works for the public)".

      Fascinating bullshit you spout:

      Article I Section 8. Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

      reply to this | link to this | view in chronology ]

      • identicon
        John Smith, 20 Sep 2018 @ 3:49am

        Re: Re: "the purpose and intent of copyright law" is protect Creators,

        "Limited time" = "the length of time it takes for the4 first and only person to purchase the work legally to upload it to a torrent network.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Sep 2018 @ 6:18am

          Re: Re: Re: "the purpose and intent of copyright law" is protect Creators,

          Funny thing, Labels, studios and publishers are still profitable even though piracy exists, and has always existed. Also many creators making a living from their creativity while giving away what they create, as what they can monetize is their ability to create new works.

          reply to this | link to this | view in chronology ]

    • identicon
      Rich, 19 Sep 2018 @ 6:36am

      Re: "the purpose and intent of copyright law" is protect Creators,

      You might want to read the actual intent laid out in the Constitution. No where does it say anything about "protecting creators."

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2018 @ 9:39am

        Re: Re: "the purpose and intent of copyright law" is protect Creators,

        yep, but it is a shame that "Moral Rights" do not have special protection. I would rather let "people/individuals" not "businesses" have lifetime rights to copyright while businesses are only allowed to have a maximum of 10 years.

        Which means if a business wants to create a copy-written work they are required to employ or pay licensing to that person.

        After 10 years the work needs to become part of the Public Domain where the culture can enjoy the work without limitation.

        reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 19 Sep 2018 @ 12:54pm

          Re: Re: Re: "the purpose and intent of copyright law" is protect Creators,

          After 10 years the work needs to become part of the Public Domain where the culture can enjoy the work without limitation.

           

          Personally, I think Derek Khanna's idea of a sliding scale for copyright renewal is the best:

          ...a sliding scale for copyright renewal, after a free initial term of 12 years. The fee for renewal would be a percentage of revenue from the work, and that percentage increases with each additional renewal term. Under such a system, those who are still exploiting the copyright can continue to hold one, but for most, where there is greater benefit to have the work in the public domain, the work goes into the public domain. Source

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2018 @ 6:50am

      Re: "the purpose and intent of copyright law" is protect Creators,

      First off -- go re-read the Copyright Clause in the Constitution.

      Second: going through your points:

      1A) Have you ever considered that profit is not the sole motive (and *should not be the sole motive*, otherwise you get bland commercialized trash instead of inspired artistic works) for creators?

      1B) Not only <citation needed> for your first point, but if people are creating without taking advantage of (or even in spite of, Beastie Boys anyone?) copyright, then is that not a sign that the copyright system is failing at its Constitutionally-declared purpose?

      2) Who is the "rightful owner" of, say, Shakespeare's works, if not the body public? Do you honestly believe that there should not be a public domain, a published embodiment of culture that belongs to society as a whole?

      3) Are you saying that it's not possible to sell copies of a work that's in the public domain? That a professional press and bookbinder can add no value to a PDF copy of Beowulf?

      4) When were libraries ever for-profit operations?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2018 @ 6:51am

      Re: "the purpose and intent of copyright law" is protect Creators,

      What is it that makes you an expert in the field,
      and why should I even consider what you have typed?

      Music is dead, people like you killed it.

      reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 19 Sep 2018 @ 7:54am

      Re: "the purpose and intent of copyright law" is protect Creators,

      Everything you say here is wrong.

      --- "the purpose and intent of copyright law" is protect Creators"

      Have you read the constitution? The purpose and intent is pretty clear.

      --- "What ALWAYS matters is the protection, otherwise there's ZERO incentive to create new."

      Nobody's saying there shouldn't be protection. The question is how much is beneficial to society.

      --- "Much of what's "created" now doesn't even need to be "incentivized""

      So you're saying there's no need for copyright? And why are "created" and "incentivized" in quotes?

      --- it's proper to direct whatever income to more or less "rightful" owners,

      Many of these works don't have rightful owners, which is why they're not available.

      --- rather than allow undeserving grifters to use them for free.

      You mean grifters like Walt Disney? Do you not have a clue how the public domain benefits contemporary culture? "Grifters" using the public domain for free is one of the primary things keeping those old works relevant.

      --- old works being in public domain while still have commercial value is just wrong.

      The vast majority of old works don't have any commercial value. Just because some old movies and few books and songs are still popular doesn't mean everything ever created will make money in the marketplace, or that if it can't make money that it's not still valuable.

      --- NOT languishing in haphazardly funded random places run by one eccentric.

      I didn't realize all of the world's public domain was restricted to one person. I thought works were in housed in libraries and archives around the world.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2018 @ 8:21am

        Re: Re: "the purpose and intent of copyright law" is protect Creators,

        So you're saying there's no need for copyright? And why are "created" and "incentivized" in quotes?

        More importantly, blue just threw away his right to bitch about piracy.

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 19 Sep 2018 @ 4:10pm

        Not a bad song, but still...

        Everything you say here is wrong.

        And now I've got the Weird Al song running through my head, thanks.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2018 @ 9:47am

      Re: "the purpose and intent of copyright law" is protect Creators,

      >2) Since old works STILL have value in the current milieu, then it's proper to direct whatever income to more or less "rightful" owners, rather than allow undeserving grifters to use them for free.

      So Disney was grifting when they used all those public domain works to make a fortune!

      reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 19 Sep 2018 @ 12:36pm

      Re:

      the purpose and intent of copyright law" is protect Creators,

      As others have pointed out - that is not the purpose and intent of copyright.

       

      What ALWAYS matters is the protection, otherwise there's ZERO incentive to create new.

      Really? So nothing was ever created prior to copyright laws?

       

      The notion that you push of old works being in public domain while still have commercial value is just wrong.

      No, that is actually the "purpose and intent of copyright law". Authors are given a limited time to monetize their works in exchange for turning them over to the public domain eventually.

      You really should research some copyright history and you will find that when copyright was only 14 years with an option to renew another 14 years only about 12% of the copyright holders choose to renew their copyrights. This indicates that majority of money made off of works happens in the first 10 years.

      The only thing that 70 year copyright terms are incentivizing is the creation of lazy grandchildren, IMHO.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2018 @ 12:45pm

      Re: "the purpose and intent of copyright law" is protect Creators,

      NOT "(incentivizing the creation of new works for the public)".

      Literally not what the Constitution says. Also, are you saying that artists should just be creating works for themselves and not letting the public have access to them at all? Talk about starving artists.

      Your assertion there has the usual piratey / Googly / Youtube self-serving purpose of getting hold of works (new or old) for free.

      And yours is free of any facts or even tenuous hold on reality.

      with complex hardware that provides ease of access

      Tell that to the MPAA and RIAA who keep trying to make it more difficult to distribute and would get rid of the internet if given the option. Just because you are too stupid to understand how the internet works, doesn't mean the rest of us are too.

      Young people want new crap, not old crap

      Then explain why old music is extremely popular with young people, and the current popularity of all things "retro" with young people. Also, if this were true, Beethoven's works and popularity would have died with him.

      Since old works STILL have value in the current milieu

      But wait, you just got done saying young people don't want old crap.

      direct whatever income to more or less "rightful" owners, rather than allow undeserving grifters to use them for free.

      I agree, so how about we shut down all the recording labels so the artists get 100% of what they earn instead of a fraction of that and the rest goes to the labels?

      The notion that you push of old works being in public domain while still have commercial value is just wrong.

      Oh so the light bulb should still be locked up under copyright then? Please, feel free to give back all your lightbulbs, you filthy pirate.

      The notion that you push of old works being in public domain while still have commercial value is just wrong.

      You mean like self-publishing on the internet where you get to keep close to, if not the entire, 100% of profits?

      NOT languishing in haphazardly funded random places run by one eccentric.

      You mean like how it currently works where the MPAA and RIAA basically have everything locked up in their vault and refuse to release it for public sale or access?

      reply to this | link to this | view in chronology ]

  • identicon
    KB, 19 Sep 2018 @ 9:08am

    We will wosh theamp act was not included. Most do not know how the business side fruly works...the loop holes and accounting is a mess....but they work it well....

    reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 19 Sep 2018 @ 9:39am

    Point by point

    Drop a large point by point attack and run away when everyone calls you on it - Check!

    If only people could see, the fools, so deluded, I must show them the TRUTH with more CAPS until they LOVE copywrong.

    reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 19 Sep 2018 @ 10:05am

    I'll take it.

    Small, incremental steps in the right direction are where reform starts.

    I think it will take generations for copyright to be properly reformed -- I think it's bound to happen eventually since younger generations have a very different understanding of sharing and redistributing works than people did in 1976, 1988, 1992, and 1998. But a journey of a thousand miles begins with a single step.

    reply to this | link to this | view in chronology ]

  • identicon
    John Smith, 20 Sep 2018 @ 3:47am

    In olden days copyright locking
    Was looked on as something shocking
    But now, Congress knows
    Anything Goes

    reply to this | link to this | view in chronology ]

  • identicon
    Châu, 21 Sep 2018 @ 1:09pm

    Copyright, Patents

    reply to this | link to this | view in chronology ]


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