Congress Claims To Help Musicians, But…

By Alasdair MacKenzie and Danny Holt

When we aren’t fighting for democracy reform with Equal Citizens, we are musicians.

Few things lift our spirits like creating new music and sharing it with fans. Writing music and playing in bands are work- and time-intensive pursuits, but we wouldn’t trade them for anything. In many ways, they are who we are.

There is a critical prerequisite for our work: access to already-created music. For many, listening to music is a pastime and source of enjoyment. For us, it is the linchpin of music creation. As songwriters, we hear seeds of new compositions in the melodies, rhythms, and textures on other artists’ recordings. As instrumentalists, recordings show us technical excellence to study and creativity to aspire. As makers of sample-based music, we incorporate other recordings into the fabric of our own work. Culture is additive — we create the future from the past. As such, access to all types of music, from Top 40 hits to flops, is imperative.

Unfortunately, Congress is about to limit this access.

Thanks to intense lobbying effort from major record labels, Congress is on the verge of passing the CLASSICS Act, a revision to the copyright laws governing sound recordings. While the main focus of the CLASSICS Act is to compensate legacy artists, which we firmly support, this bill will likely hurt artists like us and our ability to access our culture’s past.

Let us explain. Our current copyright system is a mess. Right now, pre-1972 sound recordings are governed under state and common law — not federal law — so that the rights-holders of those works are not under federal copyright protection when the songs are streamed or played on internet radio. This clearly hurts artists, and we agree that reform is needed. Under the CLASSICS Act, sound recordings made between 1923 and 1972 will be given a federal “pseudo-copyright” protection until 2067, so that the rights-holders of recordings made during those years can demand royalties as dictated under federal copyright laws. Using those recordings without a license will put users at risk of federal copyright’s massive, unpredictable penalties.

The problem is that such a blanket copyright expansion will unintentionally impact the availability of lots of music and sound recordings. Don’t worry: the most popular pre-’72 recordings will still be available, as digital music companies like Pandora and Sirius XM already pay for many popular works as part of private agreements. And these companies will continue to do so, since famous works will remain in high demand among listeners. (But still, there is concern that accessing famous older recordings will be difficult, as their rights-holders are increasingly hard to find.)

The real rub is that streaming services and internet radio stations will have no incentive to pay for less commercially viable recordings. Much of this music therefore could disappear from streaming services. And what is unavailable to stream is effectively unavailable in general, as streaming is the predominant form of music consumption in the United States today. This would gut the primary way that we are exposed to new music.

As Lawrence Lessig and other prominent copyright scholars have argued, it isn’t just about streaming music. Creators of any existing work that includes pre-1972 sound recordings will have to secure new permissions from the owners of each retroactive copyright in each sound recording. This will likely remove some popular audio documentaries and podcasts from the public’s reach.

On the surface, the number of commercially non-viable works affected by the CLASSICS Act may seem insignificant, but copyright experts estimate that commercially non-viable works comprise around 95% of recorded music from before 1972. In this way, the vast majority of half a century’s recorded sound culture would become more difficult, if not impossible, to access under the CLASSICS Act.

We care deeply about these lesser-known recordings and their continued accessibility. Recordings, no matter how obscure, are extremely valuable resources to our growth and creativity. Moreover, in a broader sense, they are historical documents and need to be continually accessible, for we cannot fully understand our past and present without them. Having these works languish in the cultural abyss, out of the public domain until 2067, would be a tremendous loss.

So yes, rewarding artists for their work is important (trust us, we want to be compensated!). But we also have to fix the negative effects of this copyright change.

And this isn’t difficult. One simple change to the CLASSICS Act would prevent most of its impediments to creativity. Congress could add a stipulation that the expansion of copyright will only be granted to recordings that are registered with the U.S. Copyright Office. In other words, if you make the effort to register your work, you receive the Act’s expanded protection. Under this scheme, the most profitable recordings would be registered — as their rights-holders would want to profit from streaming — while the remaining recordings, the ones that have no commercial value and whose rights-holders either cannot be bothered to register or who are unaware of what they own, would remain freely streamable. If those recordings became profitable at any point before 2067, their rights-holders would be free to register them.

A registration requirement amendment would allow the CLASSICS Act to fulfill its stated mission of rewarding artists for their “important contributions to society,” while also protecting sources of creativity for striving artists like us.

As musicians, we uniquely understand the tender balance between getting paid and having access to our culture. We urge Congress to appreciate it as well. Please sign Equal Citizens’ petition demanding the Senate add a registration requirement to the CLASSICS Act today.

Alasdair MacKenzie is a research intern at Equal Citizens and a rising senior at Harvard College. He performs and records with the band New Dakotas and produces recordings for numerous other artists.

Danny Holt is a research intern at Equal Citizens and a rising sophomore at Wesleyan University. He records solo work under the name Soggy Jockey and plays drums in the band Not the Village.