Is the ACCESS Bill Mean-Spirited or Ill-Advised?

Last week, Senator Ron Wyden (D-OR) suddenly—and I do mean suddenly—introduced a bill in the Senate that many of the usual copyright-haters are applauding as an “alternative” to the CLASSICS Act.  It’s hard to decide whether Wyden and whatever narrow constituency he’s serving are using this bill as a political stunt aimed at killing CLASSICS, or if they’re really arrogant enough to believe this bill would not become the legal briar patch the authors of CLASSICS worked hard to avoid for the time being.  In fact, just dropping this bill in the Senate’s lap at the eleventh hour has the potential to upset the entire, multi-stakeholder-negotiated Music Modernization Act omnibus package—the one in which digital platforms like Spotify have a stake—and which passed the full House with a vote of 415-0.

Despite all that, Wyden unilaterally chose to disregard the many years invested by his colleagues in the House Judiciary Committee, the volumes of testimony and negotiations, and the 2011 recommendations of the Copyright Office, to introduce a counter-proposal called the ACCESS to Recordings Act.  The acronym stands for the Accessibility for Curators, Creators, Educators, Scholars, and Society.  Seriously?  I know legislation can get a bit agitprop in its nomenclature, but ACCESS?  The curators, creators, educators, scholars, and society have access!  We’re awash in access!  What we need is fairness in the commercial markets for the artists whose works we access all the time.

Anyway, the bills …

The function of the CLASSICS Act is fairly simple, and for good reason—because the current copyright status of these pre-1972 sound recordings, protected under myriad state laws, is complicated.  For instance in one state, the owner of a physical master recording may be considered the rights holder of the underlying work but not so in another state.  The list of potential variables is long, but suffice to say CLASSICS doesn’t address any of this common law complexity because, as noted in an earlier post, it would be an undertaking lasting many years, possibly achieving nothing.  By contrast, ratification of CLASSICS, as part of the MMA, means these legacy artists get paid immediately, and the relevant digital streaming services achieve legal certainty in a historically gray area that has incubated numerous lawsuits.

CLASSICS leaves the common law protections for these sound recordings in place, along with the existing copyright expiration date for all of these works of February 15, 2067.  The only thing CLASSICS does is to create a new federal protection exclusively for non-interactive (e.g. SiriusXM or Pandora) digital transmissions where these recordings are played all the time but without compensating the artists.  As Robert Levine, reporting for Billboard, writes, “…a few big companies will pay artists and labels a bit more money. That’s it.”

ACCESS is Sham Full Federalization

It is important to keep in mind that the detractors currently attacking CLASSICS cannot point to single constituency whose interests are in any way diminished from the status quo.  Yet,  rather than endorse a simple solution to compensate these relatively contemporary artists through one narrow licensing regime, the anti-copyright forces, including library organizations, have chosen to crash the legislative process with this bill.  ACCESS is a ham-handed version of what these parties really want—full-federalization of pre-72 recordings—but both the timing and substance of the proposal blithely glosses over the complexity of this more ambitious agenda.

For instance, ACCESS presumes to erase all common law copyrights and migrate these sound recordings into their own niche of federal protection with the stroke of a pen.  But as Levine observes in that same Billboard article, this could be interpreted as an unconstitutional “taking,” an obstacle which alone suggests the bill is not designed to pass so much as it is to stymie the MMA until it perhaps expires with the mid-terms.  Additionally, this over-simple proposal to federalize this collection of sound recordings could trigger a festival of litigation among artists and labels over issues pertaining to who owns what, all in reaction to such a radical and ill-conceived change in legal status.

The ACCESS bill proposes different expiration terms than CLASSICS for these works, namely a flat 95 years from publication date, even though the meaning of “publication” under the presiding 1909 Act is a bit of a challenge in itself.  While this proposal would mean more of these works falling into the public domain sooner, this would largely be a symbolic “victory” for the copyright haters providing little value to the general public and varying degrees of unfair treatment to the artists.  (And that’s if the act didn’t cause any other chaos.)

For instance, Don McClean’s “American Pie” would expire one year earlier under ACCESS than under CLASSICS; Smokey Robinson’s “Shop Around” would expire thirteen years earlier; and Artie Shaw’s “Stardust” would expire thirty-one years earlier.  And while all that may make some anti-copyright folks feel good about themselves, it is demonstrably irrelevant to us consumers because we already enjoy anytime-anywhere access to these popular recordings, and copyright term expiration cannot improve on 24/7 availability.  At the same time, it’s worth noting that for many of these recordings which are not commercialized, all the major labels have granted free licenses to the Library of Congress’s National Jukebox to provide free, public access to these works.

Finally, the ACCESS bill contains what can I best describe as a three-year grace period during which a major, corporate user may get away with all the infringement possible of these sound recordings.  The logic is labyrinthine, but it says that a rights holder must notify an alleged infringer no later than six months prior to taking action in a claim; and this limitation lasts for three years after passage of the act.  This provision can only be explained as a favor to the commercial digital broadcasters because, of course, they need Congress to protect them from the musicians.

What About Libraries?

The libraries have applauded the ACCESS bill, though it’s hard to fathom exactly why, other an appetite for futile defeat and antagonism.  While it cannot be denied that full federalization of these sound recordings would benefit libraries and archives, ACCESS will almost surely not achieve this goal.  Consequently, these organizations are either being naïve or callous in their support for Wyden’s tossing a legislative grenade at this late stage of the process.

The specific needs of libraries are entirely separate from the purpose of CLASSICS.  Yet, rather than engage in the normal legislative work needed to obtain the statutory exceptions libraries would like to see, they choose to back a dead horse and, once again, needlessly position themselves in opposition to a group of artists.  Then, as if to exacerbate the decision, they make inaccurate public statements that stretch way beyond their sphere of interest.  For instance, the Library Copyright Alliance published a letter signed by its member library associations, which states:

“While the ACCESS to Recordings Act provides more protections to artists than CLASSICS, it also provides more protections to libraries, archives, and museums.  The federal copyright standard provided by the ACCESS to Recordings Act includes important exceptions that permit digital preservation of pre-1972 sound recordings. These uniform exceptions would enable cultural heritage institutions to engage in critical preservation activities without concern about violating a multiplicity of different state law regimes.”

That first part of about providing “more protections” to artists is not exactly true from the artists’ perspective.  The libraries make this claim because ACCESS would transport all  the exclusive rights—reproduction, performance, derivative works—into federal protection, but the nation’s librarians are in no way qualified to say whether this is better or worse than the state laws currently protecting some of these works, thus implicating the aforementioned “takings” problem in the proposed bill.

As for the libraries, it is true that the common law status of many pre-72 sound recordings can be an obstacle to certain preservation activities, but none of that will be solved by endorsing a makeshift proposal that is almost certainly destined to fail.  Meanwhile, the CLASSICS Act explicitly extends library-focused exceptions that would enable these institutions to make recordings available that are otherwise not found in the commercial market.  (Isn’t that what the public really needs a library or archive to do anyway?)  But rather than win this small provision in CLASSICS today and collaborate on the more complex issues tomorrow, the library groups are going to endorse a fatally flawed bill and persist in their adversarial relationship with artists and authors for no imaginable reason.

What’s Really Behind This?

The ACCESS proposal cannot help but implicate the Gordian issues that legal experts, artists, and legislators sought to at least postpone with the narrowly-tailored CLASSICS Act.  It seems reasonable, therefore, to assume that Senator Wyden and his bill’s supporters know this to be the case and that the introduction of ACCESS is designed solely to run out the clock on the Music Modernization Act. Not only would this trash years of work by a lot of people, but there is not a single provision in the omnibus package which would negatively affect the parties suddenly endorsing ACCESS.  Hence, one can only conclude that this belated proposal is either mean-spirited or ill-advised.  Though it is arguably a bit of both.

© 2018, David Newhoff. All rights reserved.

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12 comments

  • The bill can be found via a link at: https://www.finance.senate.gov/ranking-members-news/wyden-introduces-bill-to-provide-fairness-for-all-sound-recordings-including-introduction-to-the-public-domain

    After reading the above webpage, I have little doubt that on this bill can be found the fingerprints of businesses who benefit from the current state of affairs, as well as several of the academics you and The Trichordist have been writing about.

    • David Newhoff

      Thank you. This particular attack is odd because the DiMA platforms have worked to be partners in the MMA, so it’s not quite the usual tech v. author narrative we’re used to. It’s also very hard for the usual suspects even to invent a “victim” if CLASSICS passes because it’s so narrow in scope. It’s hard to know whether there’s a real financial interest behind this assault or if it’s mostly misguided ideology.

      • Why not both?

        Here’s some strategic thinking I find plausible: the alternative solution to the “pre-1972 problem” presented in ACCESS threatens to delay the passage of the MMA. There’s a lot of back-and-forth and the whole “running out of time” issue is brought up. Then a suggestion appears: “pre-1972 recordings are a point of contention, so let’s just strip those provisions from the much-needed bill and hammer out the details separately”.

        Mission accomplished.

      • David Newhoff

        Hey, Faza. So, stripping CLASSICS from the MMA appears to be the goal of these parties, and for no good reason. As mentioned, nobody who’s targeting CLASSICS can point to any constituency that is harmed by it; all it does is get a certain group of artists paid by a certain group of corporate users. “Hammering out the details” amounts to a much larger project of full federalization, which will at least take years or may never happen. My/our attitude is to pay these artists now and then continue that process if there is the political will to do so. CLASSICS doesn’t foreclose full federalization; it can be seen almost like a continuing resolution to make sure people get paychecks while Congress continues to debate the budget. Not a perfect analogy, but that’s about how “controversial” this bill should be.

      • I may be wrong about this, but CLASSICS seems to me the sweetener that makes the MMA palatable to the music community. I mean, the core of the MMA seems to be focused on protecting the… ahem… ACCESS models from Bad People like David Lowery et al. I’ve yet to have anyone point out anything good for musicians in the MMA, other than the pre-’72 provisions via CLASSICS.

        Of course, CLASSICS is exactly what the core constituency that wants the MMA (Big Internet) would like to avoid, if at all possible – hence the shenanigans we’re seeing now. You don’t get to be the biggest businesses on the planet by actually paying for stuff, amirite?

      • David Newhoff

        So, I think it’s probably a stretch to view CLASSICS as the honey to get musicians to swallow MMA. MMA has largely been endorsed by the songwriting community, which is the main constituency that stands to benefit from the new licensing system it creates. CLASSICS only benefits performing artists with pre-72 recordings and only in a specific market. So, although there will be some crossover — singer/songwriters with pre-72 recordings — if the music community were generally opposed to MMA, it would be tough to use CLASSICS as an incentive. Additionally, the fact that CLASSICS, MMA, and the AMP Act were combined into an omnibus package is more a procedural matter than anything else. All bills before Congress will expire with the mid-term elections this November, and Congress will be focused on said mid-terms in a few months. So, any bill that’s going to move has to pretty much move now or hope to start over again with a new Congress next year.

  • I don’t mean to derail the topic, but I just thought it would be somewhat appropriate to ask you if you already know about the EU Copyright Reform proposal that has been getting some steam lately… you know, that one with the “Article 13” that EFF and Mike Masnick claim will “create Censorship Machines”?

    As someone who lives in the EU and someone who gets sick of the EFF and Masnick, I would really love to hear your take on it…

    • David Newhoff

      Xiristatos —

      Thank you for asking. I admit that I have not had the bandwidth to really examine the Article 13 proposals for myself. Masnick offers little other than to repeat the word “horrible” a lot and to back Julia Reda, which tells us nothing about the specifics. History tells us when this group of people all sing in such perfect harmony from the same hymnal, some truth is missing, I just don’t know exactly what it is. Like you, I tire of being told that the internet will be destroyed, but I just haven’t had the time to adequately track this proposal in order to comment on it with any integrity. This is further complicated by the fact that it’s European law, which is an are of expertise unto itself. That said, I will try to find information beyond the doomsday rhetoric.

      • I understand, different countries mean different areas, how could I forget? Hard to tell when this world is so globalized already…

        At the very least, there are a few fairly informative articles I’ve found on this matter; one from someone who genuinely supports copyright: http://mistercopyright.org/usual-suspects-fight-effort-to-impose-online-accountability-in-europe

        Also, our good friend Andrew Orlowski also has something: https://www.theregister.co.uk/2018/04/27/eu_copyright_leak/

        But y’know, I thought it was worth asking, ’cause y’know… I love your takes on everything copyright-esque and all.

      • Oh, and I almost forgot… Julia Reda, the one who created the word “Censorship Machines” to describe this proposal, is a member of the “Pirate Party Germany”. Make of that what you will.

      • David Newhoff

        Yeah, I’m highly skeptical of any member of a “Pirate Party,” am no fan of a number of Reda’s statements, and do realize she invented that term. All of that strikes against her credibility for me, but that’s not sufficient to say how or why she’s wrong about Article 13. And thank you for your other comment and kind compliment. Kevin and Andrew are both very good. I knew there was a post I’d seen recently that I couldn’t remember, and it was Kevin’s. So, you’re at least as up to date as I am! Still, I’ll look for some other material. It’s always frustrating when people shout that a law is bad but tend to avoid explaining in detail how it will be bad.

        Meanwhile, if you never saw it, here’s a very entertaining response by John Degan to Reda on copyright and The Diary of Anne Frank: https://medium.com/@jkdegen/why-i-bought-anne-franks-diary-for-a-german-pirate-ddabe6b43a0a

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