US Congress considers extending copyright term

A Bill has been put before the US Congress that extends copyright protection for sound recordings (that were fixed before 1972) until 2067. This could mean that sound recordings fixed as early as 1923, would remain out of the public domain for evvvveeerrrr 144 years.
How long?!
Photo: Kathleen Bladen


The Bill currently being debated in the Senate and House aims to amend title 17 of the US States Code in order to "provide Federal protection to the digital audio transmission of a sound recording fixed before February 15, 1972." As such S.2393 of the Classics Act amends title 17, United States Code by adding the following: 

"(a) Unauthorized Acts.—Anyone who, prior to February 15, 2067, performs publicly by means of digital audio transmission a sound recording fixed before February 15, 1972, without the consent of the rights owner, shall be subject to the remedies provided in sections 502 through 505 to the same extent as an infringer of copyright.

(b) Certain Unauthorized Transmissions.—Transmissions of sound recordings fixed before February 15, 1972, shall be considered authorized and with the consent of the rights owner for purposes of subsection (a), if—

(1) the transmissions are made by a transmitting entity publicly performing sound recordings protected under this title by means of digital audio transmissions subject to section 114;

(2) the transmissions would satisfy the requirements for statutory licensing under section 114(d)(2) or would be exempt under section 114(d)(1), if the sound recordings were fixed on or after February 15, 1972;

(3) in the case of transmissions that would not be exempt under section 114(d)(1) as described in paragraph (2), the transmitting entity pays statutory royalties and provides notice of its use of the relevant sound recordings in the same manner as required by regulations adopted by the Copyright Royalty Judges for sound recordings that are protected under this title; and

(4) in the case of transmissions that would not be exempt under section 114(d)(1) as described in paragraph (2), the transmitting entity otherwise satisfies the requirements for statutory licensing under section 114(f)(4)(B)."

The new Bill was introduced in Senate by Christopher A Coons and put before the Committee of the Judiciary on the 15th May 2018. The Classics Act would be the 12th time that the US Copyright term has been extended since the 1970s. 

The consideration of the Classics Act is combined with the Music Modernization Bill which intends to "modernize copyright law." These reforms where noted by the AmeriKat in her Fordham 2018 report here. At which point, the conference panel agreed that these bills were sensible pieces of legislation.

The extension of copyright usually sparks a heated healthy debate, which this Kat discovered when asking copyright stakeholders about their views on policy such as this, as part of the Copyright User project: 

“Copyright now endures for so long that by the time it expires it cannot be said to be satisfying its original purposes.” (Archive Expert)

Here's what EFF thinks: "Recognizing and celebrating the contributions of classic recording artists is a worthy goal, but creating new rights in pre-1972 recordings is unnecessary and sets a dangerous precedent."

This Kat would be very interested to hear readers view on the matter... 

US Congress considers extending copyright term US Congress considers extending copyright term Reviewed by Hayleigh Bosher on Monday, May 21, 2018 Rating: 5

4 comments:

Anonymous said...

The headline is a bit misleading. Under existing law, pre-1972 sound recordings are protected under state law, generally without any term of protection. Federal law provides that "With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067." 17 U.S.C. 301(c). The Classics Act would federalize the public performance right for sound recordings, and because under current law those sound records are potentially protected until Feb. 15, 2067, the Classics Act would retain that term of protection.

Rather than being viewed as an extension of the term of protection, the Classics Act is more properly viewed as retaining the current term of protection for the public performance right, which would now be governed by federal law. To be sure, as a matter of policy there is a good argument that this is much too long -- especially for sound recordings that were created almost 100 years ago. [Sound recordings created before 1923 are not covered by the Classics Act.] And the existence of a public performance right under the laws of the various states is inconsistent and, for the most part, unknown. But in any event, the decision to retain the 2067 expiration date was motivated not by a desire to extend the term of protection, but rather to prevent the taking of property (copyrights) that is currently owned by copyright owners.

Anonymous said...

(part 1 of 2)

Hayleigh, you seem not to be supporting a balanced argument, indicated by your choice of quote extracts from "stakeholders".

I'll not address the specific material at hand, but rather the general concept of term extensions/term lengths. There are problems on both sides of this argument:

- The property deniers (opposing long/extended terms) are really trying to build an argument against the small percentage of works that are still financially viable, and that have not been abandoned by their owners, while seeming to ignore the fact that the vast majority of all copyright protected work ever created is discarded/unexploited within a short period of its creation.

- On the other hand the propertisers (those arguing for extended rights) ignore that what they seek for that small percentage of works that have value, also extends to a vast rump of works that are financially unviable.

Effectively we have very little notion of property abandonment in this area.

Attempting to address one of the quotes you have used above, I have to ask: would the draughters of the 1709 Act, or the 1790 Act, have had any concept of what a sound recording was (let alone a computer program), in order to engage with the philosophical/economic debate that modern copyright embodies. That's without even taking into account the very low costs of reproduction that are enabled by current technology.

If you take Jefferson's "taper" argument, for example, which many anti-copyright protagonists use. This is clearly an argument of its time which is anachronistic today. But still the unenlightened rely upon it.

At the same time, Locke, more than 300 years ago, supported the idea of copyright terms of life plus 70 years - truly a man ahead of his time.

Anonymous said...

(part 2 of 2)

As a direct example of how quickly economic viability decays, take Stieg Larsson's "Girl with the dragon tattoo". In 2010, probably supported by the film release (the original Swedish version), it was the best selling book in the UK, 1.16 million copies. The following year it was ranked seventh with 329,000 sales and in 2012 it was 38th with 169,000. In 2018 I would estimate, based on current Amazon rankings, that it will sell no more than 2,000 copies in the UK. Ok, that's not "unviable", but one can imagine that it has very little worth in another 20 years or so, let alone 100 or more (although in this case the author is already dead, but term extensions cannot be ruled out).

Perhaps somewhat in contrast, older works like Steinbeck's "Of mice and men" or Orwell's "1984" may be selling 25-50,000 copies per year in the UK alone. For expired works the best selling editions of "Wuthering Heights" or "Pride and prejudice" probably manage around 5-10,000 - where lesser works by the same authors probably struggle to sell a few hundred and, far from the end of the long tail, lesser authors will struggle to shift a few dozen copies a year.

While there are arguments against long terms, even Paul Heald concedes that there is a valid concern about husbandry when works are no longer "owned". And in reality, having a term expiry doesn't donate a work to the public (they already have full access to it), it just donates it to the profits of a different set of entrepreneurs. This is an issue that has come to the fore as technology has changed - reproduction and origination costs no longer act as a brake on the market.

Rather than attempting to find the answer to unanswerable questions about the perfect length for copyright terms (we may as well ask "what is the length of a piece of string?") we should be focusing on how to focus rights on the works that are viable over the long term, without extending that protection to works that are abandoned. While I'm not really a big fan of registration, I believe that Landes and Posner have already suggested an answer to this problem.

After all, if term lengths for sound recordings in the UK had not been extended a few years ago, then almost the entire Beatles catalogue would now be unprotected today. Personally, I find that unthinkable.

THE US anon said...

144 is simply not reasonable if one is looking at rewarding a real-life person.

This is ONLY pushed for the benefit of juristic persons.

In the US, the powers (and benefits) to juristic persons have become unhinged with reality - with all too real, and dire, consequences. And not just in the IP realm. In the US, we have lost our way. Or rather, our way has been co-opted by the powers of Big Corp, who have captured our legislative function with the likes of Citizens United, and the equating of money with larger shares of "voice" and other unnatural (as in, real people cannot exercise power in the manner that Big Corp can) manners.

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