Though I have doubted in the past (and continue to doubt) that any real, substantive copyright reform will make it through Congress any time soon, there have been a few recent legislative proposals that I want to recognize.
First there is the is the Compensating Legacy Artists for their Songs, Service, and Important contributions to Society (CLASSICS) Act (115th Cong. H.R. 3301), introduced by Rep. Darrell Issa (R-Cali.). Jonathan Bailey wrote a great summary of it at Plagiarism Today, and I encourage you to check it out yourself. In short, this legislation aims to make sense of the copyright regime for sound recordings that were created before 1972. As you may recall from my post about Spotify the other day, music you hear is protected by two different copyrights: the musical work, which covers the notes and lyrics of the song, and the sound recording, which covers the performance of those notes and lyrics. While musical works have been protected by copyright for a very long time, sound recordings didn’t come under federal law until 1972, when the Sound Recording Amendment of 1971 took effect. Notably, though, this act did not apply to any sound recordings that existed before 1972. So, sound recordings made before this time are not protected by federal copyright law, but instead are covered by state common law and/or statute. This is particularly weird because the 1976 Act essentially eliminated all state copyright except for in sound recordings.
Though it’s just a start, the CLASSICS Act addresses at least some of the consequences of this odd duality in copyright for music. It extends to pre-1972 sound recordings the prohibition on unlicensed digital transmission and also makes them subject to the same compulsory license scheme that I mentioned in my Spotify post. Furthermore, it also brings pre-1972 works under safeguards like the DMCA safe harbor. All in all, this act seems like a step in the right direction to modernize copyright with regard to sound recordings.
Second, and most recently, is the Transparency in Music Licensing and Ownership Act (115th Cong. H.R. 3350), introduced by Rep. Sensenbrenner (R-Wisc.), again addressing sound recordings. Interestingly, this act directs the Copyright Office to create a database for nondramatic musical works and sound recordings. It then limits the remedies of copyright owners who do not provide information about their works to the database to actual damages (which are often smaller and harder to prove than statutory damages) and injunctive relief to stop any future or continuing infringement. So, it puts the onus on copyright owners to stake their claims in their works and offers a degree of protection for users of those works if the owners do not take action. Unsurprisingly, this legislation is a bit controversial. Nevertheless, it’s certainly an interesting proposal to deal with sound recordings.
Still, even with these proposals, I’m skeptical that much will actually happen about copyright any time soon. Right now, Congress has more pressing things going on, including trying to pass tax reform. Indeed, consider another recent copyright proposal, the Register of Copyrights Selection and Accountability Act of 2017. As you may already know, this act would make the Register for Copyrights a position appointed by the President with approval by the Senate, rather than appointed by the Librarian of Congress. After easily passing the House 378-48, it has stalled in the Senate. Perhaps this is because of organizations like the Electronic Frontier Foundation fighting against the Act, or perhaps it’s because Congress has other things to focus on. Who knows. Either way, it’s not clear that anything will happen with this — or any other copyright proposal — soon.
Ultimately, I’m hopeful Congress will address at least some of the areas of copyright law that are in desperate need of updates, but I’m not going to hold my breath. Still, it’s important to keep our eyes on what Congress is doing and advocate for the changes that copyright needs to work for the future.