ALTERNATIVE TAKE: How Recording Industry Hid A New Attempt To Expand Copyright
Some of the new music legislation currently sailing through Congress has received criticism from music rights advocates. Not so with the CLASSICS ACT. But here, Mike Masnick of Techdirt shares his belief that some provisions in the bill represent a recording industry effort to expand copyright and why he opposes it.
Op-ed by Mike Masnick from Techdirt
Last month, we wrote about the problems of the CLASSICS Act that the House was voting on. There's a lot of background (much of it included in that post), that is not worth repeating, but the very short version is that sound recordings from before 1972 are treated somewhat differently under copyright law than songs recorded since February of 1972. Specifically, pre-1972 sound recordings are not covered by federal copyright law, but by a weird batch of state laws. Due to a bunch of shenanigans, many of those works will not be put into the public domain until 2067, even if by any other measure they should be in the public domain. The RIAA has always liked this aspect of pre-1972 songs. However, there are other aspects of pre-1972 songs that the RIAA does not like, and that's mainly that the lack of federal copyright coverage means that those works (mostly) don't get any performance rights, since most state laws didn't have such a concept. That's money the RIAA feels is being left on the table.
One way to handle this would be to just federalize the copyright on pre-1972 works and put all works on an equal footing. Easy, right? But that's not what the CLASSICS Act does. Instead, it just modernizes the parts of copyright for those works that help extract more money from people (such as adding in performance rights) while refusing to bring with it the parts of copyright law that protect the public — including the timeline for things moving into the public domain.
Larry Lessig has a piece over at Wired where he explains how this is really just the latest attempt at copyright extension. Earlier this year, we had noted (happily!) that it appeared that the usual crew of copyright maximalists had appeared to give in, saying they had no intention to push for any sort of copyright term extension this year, meaning that for the first time in decades in the US, some works may actually enter the public domain on January 1st next year. And while the CLASSICS Act isn't a straight-up copyright term extension, it is a form of copyright expansion on old works, done for no other purpose than to give the copyright holders more ways to extract money, without any corresponding public benefit. As Lessig notes, this is explicitly a welfare system for musicians:
That this statute has nothing to do with the constitutional purpose of “promot[ing] Progress” is clear from its very title. The “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” (or CLASSICS) is as blatant a gift without any public return as is conceivable. And it's not just a gift through cash; it's a gift through a monopoly regulation of speech. Archives with recordings of music from the 1930s or 1940s would now have to clear permission before streaming their musical content even if the underlying work was in the public domain.
Yet there is no registry of these owners anywhere. And while massive digital suppliers, such as Apple Music and Spotify, could probably afford to carry the burden, no public or non-profit website could even begin to bear the cost of assuring they were not committing a crime. The act doesn’t harmonize American law with international law. Indeed, it creates more disharmony. No other jurisdiction creates a similar right anywhere. The act is simply a gift, paid for by further weakening the ability of archivists to keep our culture accessible. That’s why more than 40 professors of intellectual property of all political stripes signed a letter this week asking Congress to reject the CLASSICS Act.
Now that the bill is in the Senate, EFF is asking people to contact their Senators telling them to vote no on this bill.
Now, I should note that I've seen some recording industry lobbyists mocking Lessig's piece, claiming that how could he be against supporting musicians. This, of course, is the whole setup of this bill. It's designed — like so many copyright expansions in the past — to make it hard for people to question, because, really, who doesn't want to support the content creators we like? But that ignores the other side of this equation. Copyright is designed to benefit the public. The whole setup is to give an exclusivity to content creators for a limited time in order to give them the incentive to create.
For EVERY SINGLE WORK that would be impacted by this bill, that incentive worked. It worked decades and decades ago. Those recordings were all created prior to 1972. So why do they now need more incentive for the works that were already created? And why, if we're giving them more incentive, does the public not get anything back in return? That's the hidden part that the lobbyists and think tank shills for the recording industry are hoping you'll ignore. The "expansion" here is at the expense of the public. And it's a big expense. For no benefit at all. The copyright system was an incentive system for creation, in the recognition that it would then help the public get access to content. But the CLASSICS Act flips that over. It takes away from the public and provides no new incentives to anyone.
Instead, it's just a welfare bill for musicians. And, hey, Congress can set up a welfare system for musicians if it wants to, but it should be described as such and debated as such. Instead, this is being positioned very differently, because of course that's how the RIAA plays things.