What does Public Knowledge have against the CLASSICS of music?

On April 25, a pretty extraordinary thing happened. Especially in a time of staggering political dysfunction, it was pretty impressive to see the House of Representatives pass an omnibus bill overhauling copyright law for music in the digital market with a vote of 415-0. Now headed to the Senate, the bill, known generally as the Music Modernization Act (MMA), combines three major pieces of legislation that have been in development for several years—the MMA, the CLASSICS Act, and the AMP Act.

In very simple terms, the legislation achieves the following results: 1) better and more accurate payments by digital service providers (e.g. Spotify) to songwriters (MMA); 2) federal protection for certain digital public performances of pre-1972 sound recordings (CLASSICS); and 3) compensation for engineers, mixers, or producers where they contribute to co-authorship of sound recordings (AMP). The entire package represents unprecedented examples of compromise between the digital service providers (DSPs) and the music industry; and in simple terms again, what the DSPs get out of the deal is an easier licensing regime and a new blanket liability protection that will put an end to the types of class-action lawsuits that Spotify faced for streaming unlicensed songs.

As the entire bill moves to the Senate, certain critics like Public Knowledge are now targeting the CLASSICS Act as “bad law,” recommending the Senate “consider” it separately from the rest of the omnibus bill passed by the House. Of course, if PK thinks CLASSICS is “bad law,” then I assume we can read “consider” to mean “kill,” which is certainly the assumption made by David Lowery in this post on The Trichordist. “Now it appears that through the use of proxies and two-faced lobbying DiMA [Digital Media Association] is trying to abrogate the entire compromise by stripping out the Pre-1972 and producer/mixer protections,” Lowery writes.

For an organization that claims to be a public advocate, Public Knowledge demonstrates remarkable consistency in advocating copyright policy most favorable to the business interests of internet service providers; and their objection to the CLASSICS Act is just the latest example. I’ll address a few specifics in a subsequent post, but the bottom line for the average consumer is this: having the digital service companies pay license fees to stream pre-1972 recordings will not in any way negatively affect the quality of our music-streaming experiences. I mean you don’t walk into a coffee bar with its comfy couches, free WiFi, and friendly service and say, “Wait a minute! They sell fair-trade coffee in this place?? I’m outta here.”

What the CLASSICS Act Addresses

Sound recordings were added as a category of works protected by federal copyright law on February 15, 1972. But for reasons nobody is quite sure about, recordings fixed prior to that date were exempted from the federal statute and left to the protection of common law copyright in each state. At the time, all copyrights and works were still subject to the 1909 Act until the new federal law, the 1976 Act, went into effect for works created after January 1, 1978. And although sound recordings were a protected category, the radio broadcasters successfully lobbied against licensing for “public performance” of sound recordings on the then not-unreasonable claim that radio broadcast played a substantial role in record sales.

Later, with advances in digital and subscription services, a 1995 amendment added copyright protection (§106(6) of the statute) for “public performance of sound recordings by means of digital transmission.” But this still did not apply to recordings made before February 15, 1972. Fast forward to the current market, when digital streaming now owns a huge portion of the “radio” market and obliterates the need for record sales for a growing number of consumers, and this leaves performance licensing as almost the only source of revenue for sound recordings. Meanwhile, more than a few great sound recordings were made before 1972 that consumers are going to stream millions of times. So, the CLASSICS Act creates a means by which the performing artists who made those recordings can share in the new market.

Why Does Public Knowledge Care?

If streaming services have to pay royalties for these sound recordings, that’s as it should be; and if it has no bearing on consumers (in fact, it is more likely to improve our listening experience), why is Public Knowledge even piping up on the issue? It’s tempting to say that organizations like this just plain hate copyright and will, therefore, assail any proposal that strengthens the position of any rights holder. Or one might conclude, as Lowery does, that PK is acting as an industry-funded proxy to save the streaming services money by trying to kill this bill in the Senate.

Still, PK and other critics have presented a few law & policy arguments, and I’ll look at those in my next post on this topic. As a prelude, let me say for now that pre-72 recordings is an oddball in copyright law, allowing critics to cite a lot of draconian-sounding theory, even fogging the discussion by alluding to Edison’s 1877 sound recordings as remaining in a theoretical state of perpetual copyright. In practical terms, the CLASSICS Act is simply about compensating the artists (most likely active from the 1950s-1970s) who made the sound recordings you and I listen to all the time. And in legal terms, the bill actually appears to solve some of the problems Public Knowledge cites in its objections. But that’s for the next post.

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