Congress must update music licensing for the modern era

Congress must update music licensing for the modern era
© Greg Nash

As Mike Godwin wrote about music licensing in 2014, there are a few things on which almost everyone in copyright policy can agree: “markets should be competitive; the public has an interest in copyright; and public policy should meet its constitutional aim to encourage both creative and technological innovation.”

A bill introduced last year — and now strategically folded in with the eminently more-reasonable Music Modernization Act — does nothing to achieve any of these goals. The Compensating Legacy Artists for their Songs, Service and Important Contributions to Society (CLASSICS) Act  (now Title II of the new Music Modernization Act) compounds the problem by adding new rights and regulations designed to transfer wealth to legacy industries. Simply put, the act is a handout to big content companies, tailor-made to legally mandate new payments (which prevent new music startups) while conveniently skirting many protections for libraries, consumers and artists.

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When the 92nd Congress drafted the Copyright Act of 1972, it did not extend federal copyright to sound recordings created before Feb. 15, 1972. Songs before that date are protected by state copyrights, which vary by state in scope, duration and other factors. This has had a chilling effect on libraries, educational institutions and researchers who want to make these works available to the public. Artists are also bogged down in uncertainty, faced with the Sisyphean task of figuring out which of the 50-plus schemata protects their works, in what contexts and for how long.

 

Rather than harmonizing the system for everyone by putting these recordings under current federal copyright law, record labels have persuaded legislators to introduce a convoluted, piecemeal approach that will ultimately hurt those with the least political power. The more complex the law, the harder it is for artists — especially small, independent artists — to receive what they are due. And this is precisely how this bill would operate.

In addition, the bill would make it even more difficult for archivists by locking down works created as early as the 1920s until 2067, nearly a century and a half after they were made. Artists deserve to be fairly compensated for their work, but these absurdly long terms serve no purpose except to keep culture locked away from scholars and the public.

There is no good reason why these recordings should receive longer periods of protection than any other work created prior to 1972. A book written in 1924, for instance, will enter the public domain and be freely and openly available to anyone beginning in 2020. There is no policy, legal or moral reason for locking up sound recordings for an extra 47 years — or, in human terms, another two generations of an artist’s estate.

But that is far from the only problem with the CLASSICS Act. It also excludes legacy entities from being held to the same standards as new market entrants, such a digital and satellite radio.

The bill deliberately cherry-picks the most lucrative part of music copyright — performance rights — and excludes legacy entities from paying for them. A performance right is exactly what it sounds like: the exclusive right of copyright holders to receive compensation when their work is performed. Under current law, digital and satellite services must pay for a performance right. Broadcasters have managed, through political pressure, to avoid this requirement for decades, even as their market relevance wanes. This is simply bad policy. Terrestrial broadcasters should be held to the same standards as their digital competitors.

To add insult to injury, the process of developing these bills has epitomized the worst parts of Washington money-politics. Negotiations took place behind closed doors between only the largest corporate stakeholders, while detractors were iced out. Briefings for legislative staff almost completely excluded other stakeholders, such as performance rights organizations, civil society, and even the very artists whose livelihoods depend on getting this issue right. If legislators want to help artists, they need to do so with diverse stakeholder input.

Musicians of all stripes, big and small, need to be properly compensated for their work. And this Band-Aid remedy is not the solution. If you are going to reform the system, at least do it right.

Sasha Moss is federal affairs manager and policy counsel for the R Street Institute. Meredith Rose is policy counsel for Public Knowledge.