Intellectual Property

Will Music Modernization Copyright Bills Extend Copyright Term Up To 144 Years?

Let’s hope that the Senate figures out how crazy it would be to add to the mess of copyright term and fix the bill.

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Congress is on the verge of amending copyright law around music, portions of which make absolutely no sense. The House Judiciary Committee, has been considering copyright reform for quite some time, with changes to provisions relating to music often targeted. Over the past year, there have been a number of bills on copyright and music introduced, before the House decided to roll four separate bills — some good and some bad — into a single bill known as the Music Modernization Act. That bill passed the House unanimously, in a 415-0 vote.

Now, one might think that a bill with that kind of support must be a good one that solves an identifiable problem in a sensible way, with broad stakeholder agreement and compromise. Nope. That’s just not how copyright legislation works. Here’s an example of bad policy passing by wide margins: the Copyright Term Extension Act (CTEA), extending copyright to eternity minus one day the life of the author plus 70 years, or 95 years for most corporate works (like films or sound recordings), passed unanimously through both the House and Senate in 1998. Copyright term extension has been criticized far and wide, even by some rightholders groups that typically advocate for stronger copyright protection. Take the Authors Guild, for example, which stated it “does not support extending the copyright term, especially since many of our members benefit from having access to a thriving and substantial public domain of older works . . . If anything, we would likely support a rollback to a term of life-plus-50 if it were politically feasible.” I’ve complained about it before, but I’ll say it again: copyright term is simply too long and extensions do nothing to actually incentivize creation, while harming the public domain. If anything, longer copyright terms hamper creation and innovation.

And yet, even with the knowledge that copyright term extension was a colossal mistake (while SCOTUS found CTEA to be a constitutional exercise of Congressional authority to extend copyright in Eldred v. Scott, SCOTUS never ruled on whether its wisdom — in fact, the majority notes that “we are not at liberty to second-guess determinations and policy judgments of this order, however debatable or arguably unwise they may be” (emphasis added); Justice Breyer is much more direct in his dissent, noting that the extensions makes “copyright term not limited, but virtually perpetual . . . its practical effect is not to promote, but to inhibit, the progress of ‘Science’ — by which word the Framers meant learning or knowledge”) . . . here we go again.

Some portions of the Music Modernization Act, particularly what was in the original bill with the same name from a year ago, were designed to address some significant and legitimate problems in the music industry. Songwriters often have difficulty in collecting royalties from streaming music services. Unfortunately, the House Judiciary Committee rolled the initial Music Modernization Act in with the Compensating Legacy Artists for their Songs, Service and Important Contributions to Society (CLASSICS) Act, which can only be described as a flawed bill. The biggest issue is that CLASSICS extends copyright term for sound recordings beyond what a sound recording today would be granted.

The last time Congress passed comprehensive copyright reform was 1972 and, when it did so, it failed to extend federal copyright to sound recordings created before 1972. Instead, a patchwork of state laws protect recordings created before that date. The CLASSICS Act was designed to address the lack of federalization, but instead creates a convoluted and unequal system that harms the public domain.

Again, current copyright term in the United States is already too long, but CLASSICS would make this problem even worse. Think 95 years is excessive? How about 144 years? Yes, that’s right. In Congress’s infinite wisdom, in what some members of Congress claimed to be an effort to create greater equity, sound recordings fixed between 1923 and 1972 will claim copyright protection in 2067. This means that sound recordings fixed in 1923 will get a term of protection of 144 years, 49 years longer than a sound recording fixed in 1973. Where’s the equity in that?

By creating yet another copyright term instead of simply lining it up with current U.S. law, Congress is contributing to what can only be described as an already extremely complex system for determining the term of protection of a particular work. Although works today can be calculated under the simple life plus 70 years or 95 years for corporate works formula, because of changes to copyright laws regarding formalities (notice and registration), term extension and other issues, it can be difficult to calculate term for older works. One must figure out when a work was first registered or published and, depending on the year of publication, must determine whether it was published with notice, whether copyright was renewed, the location where it was first published, what type of work it is, etc. Cornell has a handy chart to help determine when a work will enter the public domain — and it’s a great illustration of how complicated term can be. Ultimately, this portion of the Music Modernization Act only makes copyright law more convoluted.

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It appears that now that the bill has cleared the House, the Senate is preparing to introduce its own version of the Music Modernization Act. Let’s hope that the Senate figures out how crazy it would be to add to the mess of copyright term and fix the bill to ensure that pre-1972 sound recordings are not afforded greater protection than sound recordings created today.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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