From CLASSICS 2 ACCESS: A Long Day’s Journey into Night

by Neil Turkewitz

In response to the House of Representative’s recent unanimous passage of the CLASSICS Act as part of the Music Modernization Act — a bill that would finally clarify the right of performers and labels to be paid for the digital transmission of pre-72 works, Senator Wyden has introduced the ACCESS to Recordings Act. His bill would achieve some of the same results but within a framework that would preempt all state laws and bring all protection of pre-72 recordings under federal law — an approach referred to as full federalization. ACCESS has been immediately embraced by a number of organizations traditionally skeptical about copyright — groups like EFF, Public Knowledge (PK) and the American Library Association. If that raises a red flag, it should, for ACCESS has little to do with addressing the injustices faced by pre-72 performers, and everything to do with trying to prevent adoption of CLASSICS as part of the Senate version of the Music Modernization Act. A game played by people that can afford to play games while performers continue to be denied their due.

Since even the supporters of ACCESS don’t care very much about its substance, I won’t spend much time analyzing it here either. I will quickly note that there are reasonable motivations for seeking full federalization of the protection of pre-72 sound recordings as proposed by ACCESS, and to its credit, PK has consistently supported full federalization. But there are nonetheless significant Constitutional and practical problems with ACCESS — aside from the fact that it is a delaying tactic rather than a thoughtful proposal for legal reform, including the fact that there is a 180 day safe harbor in which an infringer could continue its infringing conduct without facing the possibility of being on the hook for statutory damages or attorney’s fees — a provision built on the mistaken notion — oft-repeated in recent days, that legislation is resuscitating works from the public domain necessitating protection for parties that had relied upon these works as residing in the public domain. I should also note that this provision requiring a rights owner to file a notice on the infringer has no counterpart in the existing copyright law, and is not therefore properly captured by the notion of “full federalization.”

But let me return to the political realm, because understanding the context is essential. The Copyright Office released its recommendations on full federalization back in 2011. Why wait 7 years if it is such an important part of modernization? The answer is straightforward: no one expects ACCESS to pass. Full federalization is complicated. Not impossible, but complicated. Wyden’s ACCESS bill should be renamed the “STOPPING CLASSICS ACT,” rather than ACCESS. Readers might also want to look at the carefully orchestrated and highly deceptive campaign launched by opponents of the CLASSICS bill itself. It is nicely explored here, here, here and here.

In short, opposition to CLASSICS is premised on sometimes misleading, and sometimes outright false, information: (1) that granting a new right to an existing work not already protected under the Copyright law would exceed Congressional authority as established in Article 1, Section 8, Clause 8 of the Constitution; (2) that CLASSICS was in fact pulling works out of the public domain where they were free to use and making them proprietary, thereby excluding them from broad dissemination; (3) that CLASSICS would establish a term of 144 years for these newly protected pre-72 sound recordings; and (4) that CLASSICS was a land grab by labels that wouldn’t benefit performers.

I won’t here rebut these assertions at length, but I do hope that interested parties will read the linked pieces above. But here’s the very abbreviated version: (1) the claim about Constitutional limits and the purpose of Article 1, Section 8, Clause 8 was specifically rejected by the Supreme Court in numerous decisions, including most recently in Eldred v. Ashcroft, and Golan v. Holder; (2) CLASSICS doesn’t pull anything out of the public domain. These recordings are already protected under various state laws. CLASSICS merely creates a single federal right for works already protected, and would do nothing to “lock these recordings away”; (3) CLASSICS doesn’t even address term, other than mirroring the existing preemption of state laws under 17 U.S.C. 301(c). Term is a principally a matter of state law before CLASSICS, and remains a matter of state law after CLASSICS; and (4) CLASSICS makes licensing of non-interactive communications subject to statutory licensing in which performers are paid directly by the relevant collecting society (SoundExchange). Every performer group that I am aware of supports CLASSICS.

It is important to understand the false claims about CLASSICS in order to understand ACCESS, since ACCESS itself is built from the foundations of this deceit. I personally don’t know whether Senator Wyden was misinformed — whether he was part of the game, or gamed by PK, EFF and others. But I do know that the views he expressed upon the introduction of his bill reflect a misunderstanding of the situation — a misunderstanding which closely reflects the views of parties opposing CLASSICS. Even the name is based on the false suggestion that his bill would, unlike CLASSICS, create greater access to the recordings in question — a suggestion which has no bearing to reality.

Wyden starts off seemingly neutral: “Currently, pre-1972 sound recordings are governed by state law which leads to uncertainty in certain areas, including the right for music streaming services and others to digitally transmit such recordings.” But notice the word choice — the current application of state laws creates confusion for “the right for music streaming services and others to digitally transmit such recordings.” But music streaming services have no rights in law or equity to transmit recordings. The relevant rights here are of the creator — rights not worth even a mention in the articulation of the goal of the legislation. One might observe that the bride has been stripped bare.

Wyden continues his misinformed advocacy, and assault on CLASSICS by highlighting that: “Copyright reform for pre-1972 sound recordings must consider the interests of all stakeholders — not just those of the for-profit record labels.” Wyden appears to believe that the bill he hopes to kill via ACCESS only favors labels and not performers. And let’s put aside the totally bizarre reference to “for profit labels.” Is commercial enterprise something that we want to discourage? I missed that — I actually thought we were trying to expand the economy and employment…but I digress. Back to the labels thing, and a plea to Senator Wyden:

Senator Wyden, if you are reading this, please speak to performers. There are lots of organizations and unions with whom you could discuss the merits (and drawbacks) of CLASSICS and the Music Modernization Act. Like most pieces of legislation, various groups made different compromises, and no one came away completely happy. But one issue that never came up, as far as I am aware, is the relationship between performers and labels under CLASSICS. You know why? Because it’s not an issue. Someone told you it was. They were lying or misinformed. Same for the issue of term. You said in your statement that: “we shouldn’t go beyond those [existing] protections and provide unprecedented federal copyright term for sound recordings.” But CLASSICS doesn’t provide ANY term to pre-72 sound recordings. Not 144 years. Not 95 years. Not 70. It doesn’t address term at all, other than aligning the right of public performance with the provisions on preemption already provided in the Copyright Law. I don’t expect EFF or ALA to change their spots — they are pretty firmly rooted. But Senator, I expect you care about artists. The more you learn about CLASSICS, and the level of support it has in the artist community, the more you will appreciate the hard work and compromises that allowed the House to pass it unanimously. These performers of pre-72 recordings need your help. ACCESS is not the path to justice. It ends dreams rather than sustaining them.

The CLASSICS Act would remunerate legacy artists whose music is being commercially streamed, and it provides legal certainty to services that are facing lawsuits today. For an excellent analysis of CLASSICS, see this piece by Matt Barblan and Kevin Madigan of the Center for the Protection of Intellectual Property at Antonin Scalia Law School, George Mason University entitled: “CLASSICS Act Provides Long Overdue Recognition for Legacy Recording Artists.”

Moreover, it is part of a broader music package that has found near universal support after years of discussions, and can be on the president’s desk this year, thereby moving us into a more just world. It may not solve every problem in the music ecosystem, but it moves us away from darkness, and that should be cause for celebration, and deserving of support.