War Breaks Out Over pre-1972 'Oldies' Legislation. Will This Kill the MMA?

How should pre-1972 ‘oldies’ be overhauled by the Music Modernization Act?  That’s the focus a brand-new battle on Capitol Hill, one that could seriously sideline broader copyright reforms.

So much for the spirit compromise.  Now, it looks like the Music Modernization Act (MMA) is mired in acrimony, with oldies recordings a key area 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 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 approval 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.”

+ Is the Pre-1972 ‘ACCESS to Recordings Act’ Really So Bad?

Frankly, that sounds like a simplified improvement, and one likely to increase investment and market clarity.  Instead a complex patchwork state and federal laws, ACCESS puts it all under one ro.  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 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 CLASSICS.  The American Federation Musicians, Content Creators Coalition, Future 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 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 dollars a year from airplay those same recordings.”

Supporters 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 lucrative classics.  That includes a raft 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 support CLASSICS (go figure!))

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 1998 to reaffirm that these extensions have already been granted.  But other arguments are muddy, and certainly devoid any compromise.

All 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).