Classics, ACCESS and Pre-1972 Recordings

Music & Politics

Volume 118, No. 7July, 2018

Chris Carroll
Christopher Carroll

Christopher Carroll

The last 18 months will be remembered for many things in Washington. President Trump’s social media habits, constant turnover in the West Wing and Cabinet, Robert Mueller’s investigation, the questionable ethics of administration officials, fighting with the G-7 allies, tariffs and the North Korean summit have dominated news coverage of late. With national attention so scattered, musicians can be forgiven for not realizing that 2017 and 2018 have been a period of intense legislative action regarding copyright. Though perhaps drowned out by national debates involving the president, copyright – and how copyright law relates to artists and songwriting – have become major topics on Capitol Hill. These are strange times indeed.

During this Congressional session, there have been many significant pieces of legislation introduced in the House: Fair Pay Fair Play; the Copyright Alternative in Small-Claims Enforcement Act of 2017 (CASE); the Compensating Legacy Artists for their Songs, Service and Important Contributions to Society Act (CLASSICS); the Register of Copyrights Selection and Accountability Act; and the Allocation for Music Producers Act (AMP). Each bill has been extensively discussed and debated, and each bill represents important gains for musicians and creators looking to protect both their copyright and their digital rights.

Efforts made and energy spent on many of these bills over the last year and a half have culminated in the Music Modernization Act, a package of bills that was brought to the House floor and passed unanimously. Though certainly imperfect, the Music Modernization Act represents a clear and important step forward for musicians and creators, including creating a “willing-buyer, willing-seller” model for copyright valuation, and the guarantee that musicians who recorded music prior to 1972 receive the public performance rights they justifiably deserve. These were hard-fought wins.

The flurry of legislative activity during this Congress continued on May 23, when, after the Music Modernization Act was introduced in the Senate, Ron Wyden (D-Oregon) introduced the Accessibility for Curators, Creators, Educators, Scholars and Society Act (ACCESS). This bill competes directly with the CLASSICS act, a narrowly-tailored component of the Music Modernization Act package that would provide non-interactive public performance rights to musicians of pre-1972 recordings. With this bill, Senator Wyden has introduced precisely what critics of the Music Modernization Act have long wanted: competing ideas that could confuse and complicate an already tenuous balance. At stake is years of steady progress and compromise.


The ACCESS bill was drafted either with a misunderstanding of what CLASSICS does, or as a disingenuous solution in search of a non-existent problem. ACCESS would federalize all pre-1972 copyright protection rather than maintain current copyright jurisdiction with the states. Serious questions about the constitutionality of this action alone would make ACCESS difficult if not impossible to pass, suggesting that this bill was never intended to pass during this session of Congress. Furthermore, pre-1972 artists are less concerned about whether state or federal jurisdiction applies, because they don’t get these non-interactive performance rights in the first place.

Beyond the structure of the bill, ACCESS has clearly been influenced by organizations like Public Knowledge and the Electronic Frontier Foundation, organizations that are predisposed to believe that copyright protections for creators are unnecessary.

Contrary to what these organizations may have you believe, CLASSICS does not pull music out of the public domain and does not extend copyright protection for 144 years. Instead, it ensures the existence of a public performance right for works that are already under federal copyright protection. The length of term does not change. Granted, because Section 512 of the Digital Millennium Copyright Act – the ultimate shortfall for musicians in any copyright conversation – is ineffective in today’s digital era, the length of protection won’t mean a great deal for consumers who can find access to music for free so long as they don’t live under a rock.

Ultimately, ACCESS is a disingenuous bill at best, heavily influenced by those who are incentivized to have free access to music, designed to serve either as a bargaining chip to undercut gains made in a very narrowly tailored CLASSICS bill or as a method to stop the Music Modernization Act package from passing through the Senate at all.


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