That was almost too easy. After music and technology lobbyists hammered out a series of complicated compromises, Representatives combined several bills into the Music Modernization Act, which passed the House unanimously last month. Now that the legislation has been introduced in the Senate, Sen. Ron Wyden (D-Ore.) has introduced an alternative bill that could slow it down.
Wednesday (May 23), Sen. Wyden introduced the Accessibility for Curators, Creators, Educators, Scholars, and Society (ACCESS) to Recordings Act, which would essentially federalize recordings made before 1972, which are currently covered under state law. This would allow rights holders and performers to collect royalties when their works are streamed online, which they currently can’t do. But the bill wouldn’t be as good for creators and rights holders as the current version of the Music Modernization Act, which would grant them this right without otherwise changing the way they’re covered under state law. How much support the bill will gather isn’t clear, but it’s possible that it could slow down -- or alter -- the broader legislation.
While the relevant provision of the Music Modernization Act would let rights holders of pre-1972 recordings collect money until 2067, Wyden’s bill would have these acts enter the public domain sooner: either 95 years after they were released or 120 years after they were recorded, whichever comes first. That means that some recordings would begin entering the public domain before 2067. The most valuable pre-1972 recordings, made in the 1960s and very early 1970s, would begin doing so in 2055.
Wyden’s bill also calls for all pre-1972 recordings to lose all of the protection they currently have under state law. Under current law -- and the Music Modernization Act wouldn’t change this -- all state law protection expires no later than 2067, although in some jurisdictions it could run out sooner. It also says that works recorded between 1923 and 1930 will enter the public domain if they’re not used, and it offers a three-year window from liability for statutory damages in some cases.
“Copyright reform for pre-1972 sound recordings must consider the interests of all stakeholders -- not just those of the for-profit record labels,” Sen. Wyden said in a statement. This has become a talking point of anti-copyright activists, who have characterized the Music Modernization Act as a copyright term extension -- inaccurately. Also, any reform of pre-1972 recordings would help not only labels but performers, who are paid directly by SoudExchange when the works are transmitted digitally on interactive services like Pandora and SiriusXM.
It has been suggested that any reduction in state law copyright protection would constitute a “taking,” and thus be unconstitutional. But this bill seems intended as a way to negotiate changes in the Music Modernization Act, so it’s unlikely that will ever be tested.