How should pre-1972 ‘oldies’ be overhauled by the Music Modernization Act? That’s the focus of a brand-new battle on Capitol Hill, one that could seriously sideline broader copyright reforms.
So much for the spirit of compromise. Now, it looks like the Music Modernization Act (MMA) is mired in acrimony, with oldies recordings a key area of contention.
The controversy involves recordings released prior to February, 1972, the last time that music copyright was seriously updated in the U.S. An earlier bill, called the CLASSICS Act, calls for a broad expansion in copyright protection for pre-1972 works, even beyond the terms applied to post-1972 works.
That drew howls of protest from technology companies and preservationists, among others, who argued that CLASSICS was a mere subsidy to major recording labels. Perhaps overconfident following a unanimous House approval of the broader MMA, labels refused to cede ground.
Which made the next development rather predictable. A brand-new bill, dubbed the Accessibility for Curators, Creators, Educators, Scholars, and Society (ACCESS) to Recordings Act, was introduced by Oregon Senator Ron Wyden. The bill calls for exactly the same copyright protections for all recordings, pre-1972 or post-1972, while shifting the jurisdiction for older recordings entirely to the federal government.
“The ACCESS to Recordings Act, by applying the same term limits and rights and obligations that apply to other copyrighted works, would help preserve our cultural heritage and open up older works to rediscovery by scholars, creators and the public,” Wyden declared last month.
“I have serious concerns about the lengthy terms in current U.S. copyright law that tip the balance toward limiting rather than promoting creativity and innovation, but until Congress is willing to reconsider it, we shouldn’t go beyond those protections and provide unprecedented federal copyright term for sound recordings.”
Frankly, that sounds like a simplified improvement, and one likely to increase investment and market clarity. Instead of a complex patchwork of state and federal laws, ACCESS puts it all under one roof. It also vastly simplifies copyright terms by erasing the 1972 divider completely, something that makes it easier for both content owners and licensees to understand.
A large number of music industry groups sharply disagree, however. And they’ve decided to fight Wyden’s bill tooth-and-nail.
Just this morning, seven different organizations petitioned the Senate to ditch ACCESS in favor of CLASSICS. The American Federation of Musicians, Content Creators Coalition, Future of Music Coalition, The Living Legends Foundation, the Recording Academy (which oversees the Grammys), The Rhythm & Blues Foundation, and SAG-AFTRA slammed Wyden for taking money away from aging artists.
“Wyden’s bill would undermine the retirement security of elderly artists,” the group noted in an email sent to DMN. “These artists are literally watching the clock run out on their ability to receive fair pay for their work while digital radio makes billions of dollars a year from airplay of those same recordings.”
Supporters of Wyden’s bill contend that artists are rarely receiving the money anyway.
Instead, the money is typically captured by labels, estates, and other intermediaries, especially if the artists themselves are dead. Accordingly, Wyden has blasted CLASSICS for being a subsidy to major recording labels, who are trying to extend copyright control over a range of lucrative classics. That includes a raft of iconic groups from the 60s, starting with The Beatles.
(Update: the Content Creators Coalition has just responded to this accusation, telling DMN that the CLASSICS Act would split royalty payments 50/50 with the label and artist, similar to the arrangement created by SoundExhange on the interactive digital performance side. They also noted that the surviving Beatles (expectedly) support CLASSICS.)
Indeed, those groups are critical revenue-generators, though the question is whether it makes sense from a policy perspective to extend their copyrights beyond the 95-year term. Strangely, the CLASSICS advocates are arguing that digital radio would somehow dodge payments on pre-1972 recordings if ACCESS passes, though platforms like Pandora and Sirius XM Radio will actually pay under both bills.
In their defense, CLASSICS advocates state that pre-1972 terms aren’t actually being extended.
They cite measures like the Sono Bono Copyright Term Extension Act of 1998 to reaffirm that these extensions have already been granted. But other arguments are muddy, and certainly devoid of any compromise.
All of which may seriously endanger the previously fast-tracking MMA, for obvious reasons.
Here’s the full letter sent to the Senate this morning (June 13th).
June 13, 2018
As unions, membership organizations, and advocacy groups representing recording artists, performers, vocalists, musicians, producers, and songwriters, we write to state our strong opposition to the newly-introduced “ACCESS to Sound Recordings Act” (S.2933) and to reiterate our enthusiastic support for the Music Modernization Act (S. 2823) (“MMA”). We strongly support the portion of the bill that would ensure compensation for airplay of pre-72 works known as the “CLASSICS Act” (S. 2393). We also affirmatively reject any proposals that would leave in place a below-market rate payment standard to artists for exploitation of their work.
The CLASSICS Act is vital, time sensitive legislation that is critical to thousands of artists who recorded music or spoken word performances before 1972. These artists are literally watching the clock run out on their ability to receive fair pay for their work while digital radio makes billions of dollars a year from airplay of those same recordings. The CLASSICS Act would ensure that artists who created and contributed to timeless songs finally get their due and would bring much needed certainty to one of the most contentious and confused areas of music licensing today. It is the product of a lengthy, considered process stretching back over several Congresses and represents a carefully balanced compromise that virtually all stakeholders have come together to support.
We are disappointed that the introduction of the “ACCESS Act” was done without consulting any artist group, organization, or union who would have made it clear that the bill’s eleventh-hour introduction is not a viable solution. The “ACCESS Act” would undercut the goals of the MMA by cutting compensation for the older artists that it is expressly designed to benefit. It would unfairly shorten the period in which pre-72 recordings produce royalties for the artists and copyright owners effectively shutting down a critical lifeline of payments to artists who need it most.
Proponents of the ACCESS Act claim, incorrectly, that the CLASSICS Act extends the term for pre-72 recordings and that their bill provides a fix. The CLASSICS does no such thing – Congress set the term for these copyrights in the Copyright Act of 1976 and the Sonny Bono Copyright Term Extension Act of 1998; the CLASSICS Act doesn’t alter it in any way.
Indeed, it is the “ACCESS Act” that would alter existing state and federal copyright terms, eroding protection for older artists by 15-20 years in some cases. This would arbitrarily and unfairly result in older artists receiving less copyright protection than younger artists – reinstating exactly the kind of imbalance and differential treatment the CLASSICS Act and the broader MMA are trying to fix.
We also note that one entity, Music Choice, has very recently raised concerns about the performance right rate setting reforms in the MMA and has incorrectly asserted that these reforms are “last minute.”
For twenty years, the law has applied a fair market value “willing buyer/willing seller” standard when determining royalty rates for thousands of digital services streaming sound recordings under statutory licenses. However, three services (Music Choice, Sirius XM, and Muzak) have paid below market rates thanks to a special subsidy provision created back in the 1990s for certain “pre-existing” services, resulting in a deeply distorted market and unfair competitive advantage.
Congress has been considering options to end this subsidy rate and restore fair competition – and fair market pay for artists – for years. There is nothing new about this debate. The Senate Judiciary Committee held a hearing on the issue on July 29, 2008, and it was aired at length during the music licensing hearings held by the House Judiciary Committee. The Copyright Office recommended the change in its 2015 report on music licensing reform. The “Fair Play Fair Pay Act,” first introduced in April 2015 and reintroduced in March 2017, included this change, and the music community issued a joint press release in January 2018, supporting this reform.
This is a matter of basic fairness that would create a level playing field for all digital market services and ensure fair pay for artists.
We urge you to pass the CLASSICS Act as part of the Music Modernization Act and reject proposals that would undermine the legislation’s core purpose.
American Federation of Musicians
Content Creators Coalition
Future of Music Coalition
The Living Legends Foundation
Recording Academy (GRAMMYs Organization)
The Rhythm & Blues Foundation