January 1, 2019 will be the first time in twenty years that works in the United States will once again join the public domain through copyright expiration. A growing public domain means more access to works and the ability of other artists to build on what came before. And as we get closer and closer to finally growing the public domain, big content holders are going to push harder and harder to lock it all down again. CLASSICS is the first step in that direction.
CLASSICS is a very bad bill that has been bundled with the largely-good Music Modernization Act (MMA). That bundle was passed in the House of Representatives and is currently sitting in the Senate. The original text of MMA created a new way to compensate songwriters and publishers for music played on digital services. CLASSICS, on the other hand, took advantage of a messy and confusing situation—not unusual in copyright—in order to let labels find new ways to make money off of music that should be in the public domain.
The situation is this: sound recordings didn’t used to be protected by federal copyright law. As a result, states came up with their own laws, creating a patchwork. Congress did eventually get around to bringing sound recordings under federal copyright law, but only for recordings made in 1972 and later. Older recordings remained under the old crazy quilt of state law. This meant they did not enter the public domain when they should have. State laws continue to govern the pre-1972 sound recordings until 2067. Music from World War I is locked under copyright until nearly the 150th anniversary of the war. After so much time, even finding the rightsholders to ask for permission to copy a recording is a daunting task.
CLASSICS doesn’t fix the problem of sound recordings being kept out of the public domain. What it does do is create a way for music labels—and some lucky recording artists—to collect money from streaming services for these recordings. It also makes it legally risky for music libraries, archives, and fans to digitize music that is decades old, raising the possibility of massive, unpredictable federal copyright penalties. CLASSICS simply does not fit the purpose of copyright, as 42 intellectual property scholars explained in a letter to Congress [pdf].
CLASSICS leaves the current state copyrights in place, some lasting more than 144 years, while simultaneously creating a federal system to collect money that federal copyright might not entitle them to.
Of course, these recordings could just join the public domain on the same schedule as everything else. That’s what Senator Ron Wyden’s ACCESS to Recordings Act does: applies the federal rules to all recordings. It’s a far superior solution to CLASSICS.
Big rightsholders—studios, labels, and so on—don’t want to see creative works enter the public domain and exit their control. We, as people, benefit from shorter copyright terms and a robust public domain. It means rare books can be copied and distributed without risk, saving them from the dustbin. It means that artists can build on existing work to further enrich culture. It means information can be more easily shared.
It is far easier to simply monetize existing works forever than to create new works. Or to be the only ones who can use a certain story, song, or character, as opposed to having to be the one using it best. And so, as the public domain approaches again, we can expect to see big content owners working to undermine it.
It may take the form of seeking, once again, a law that extends copyright term. It may take the form of legislation in the SOPA/PIPA vein. But, in all likelihood, it will take the form of legislation in these more esoteric, slogan-unfriendly areas of copyright law.
They’re hoping it’s harder to mount resistance to things like CLASSICS than to blatant term extensions like the Sonny Bono Act. So we, the “public” part of the “public domain,” need to make sure that they learn we’ll keep fighting.
Tell the Senate to Vote No on CLASSICS
