Home » Copyright/Intellectual Property » Senate passes copyright bill to end 140-year protection for old songs

Senate passes copyright bill to end 140-year protection for old songs

11 October 2018

From Ars Technica:

For the last decade, the Congressional debate over copyright law has been in a stalemate. Content companies have pushed for stronger protections, but their efforts have been stopped by a coalition of technology companies and digital rights groups.

But on Tuesday, we saw a rare moment of bipartisan and trans-industry harmony on copyright law, as the Senate unanimously passed the Music Modernization Act, a bill that creates a streamlined process for online services to license music and federalizes America’s bizarre patchwork of state laws governing music recorded before 1972. That will mean effectively shortening the term of protection of older music published between 1923 and 1954—under current law, these songs may not fall into the public domain until 2067.

. . . .

US law provides two different types of copyright protection that apply when someone streams a song online. There’s protection for the composer or songwriter, and there’s a separate copyright for the music recording. Services like Pandora and Spotify typically need licenses for both types of rights in order to stream a song online.

Right now, the system for licensing the songwriters’ copyright (known as “mechanical rights” for historical reasons) is a mess. Streaming services have had trouble identifying the owners of music rights, which has led to songwriters not getting paid and streaming services periodically getting sued for non-payment.

The Music Modernization Act aims to establish a modern system for licensing mechanical rights. It creates a new national database that will aim to cover all copyrighted music in the United States. If all goes according to plan, this new organization will offer streaming services “one stop shopping” for getting songwriters’ licenses for all the songs they want to stream, with the database helping to get the funds to the appropriate songwriters and music publishers.

This would make the licensing of mechanical rights more like the system used for licensing yet another music-related copyright: the right to perform music publicly. If you own a concert hall or other venue where music is played publicly, you sign licensing agreements with three national organizations—ASCAP, BMI, and SESAC—which together have arrangements with the vast majority of the nation’s music publishers.

That gets venues a blanket license to play any music they want to. It’s the job of ASCAP, BMI, and SESAC to figure out which music gets performed most often and divvy up the revenue accordingly. Companies that stream music online would like to have a similar arrangement, and the Music Modernization Act aims to give it to them.

. . . .

The legislation also changes how copyright law treats sound recordings made prior to 1972. Prior to 1972, the composer of a song could get copyright protection, but a recording artist couldn’t get copyright protection at all. Instead, song recordings were covered by a patchwork of state-level laws, some of which gave artists copyright-like protection, and others did not. Under existing federal law, these state-level laws will eventually be preempted but not until 2067.

. . . .

According to Public Knowledge’s Ryan Clough, works published before 1923 would expire three years after the legislation was passed. Works published between 1923 and 1946 would get the same 95-year term as other types of work—albeit with an extra five-year “transition period” following the 95-year term. Works published between 1947 and 1956 would get a total of 110 years of protection, while works published between 1957 and 1972 would expire in 2067—the same as under current law.

That’s a long time, but it’s arguably an improvement over existing law, where a song recorded in 1927 gets 140 years of state quasi-copyright protection before officially falling into the public domain in 2067.

Link to the rest at Ars Technica

PG is an advocate for strong copyright protection for creators. (Among many other reasons for PG’s advocacy is that Mrs. PG receives benefits from the copyrights she owns for the books she has written.)

The U.S. Constitution gives Congress the ability “…to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The underlying policy basis for the protection of creators via copyright and patents is that the federal government passes laws that enable creators to exclusively profit from their creations for a period of time in exchange for the creators sharing their creations via a filing with the government that discloses their creations.

For patents, the disclosure in the patent application must be in clear, full, concise, and exact terms to enable any person skilled in the art or science to which the invention pertains to make and use the same. In exchange for patent protection, including the right to prevent others from making the invention without a license from the patent holder, the creator must disclose (as opposed to keeping confidential) how to make and use the invention.

For patents, the general public benefits because creators who are rewarded for their useful inventions are incented to create additional inventions, such disclosures encourage the progression of discovery and development in the fields for which patents may be granted – devices, machines, manufactured items, chemical compounds (drugs), processes, designs, plant varieties that are asexually produced, etc., etc. Even though the creator has exclusive control over the patented inventions, everyone is free to review the patent which describes the inventions and general knowledge about the subject of the patent is increased.

With copyrights, the public benefits from the creation of more expressive works (fiction, non-fiction, art, etc.) because creators can control ownership of expressive works, receive payment for their works, etc.

However, if patent and copyright protections are in place for an over-long period of time, competitors may be discouraged, the financial benefits of the creations flow to people who are not the creators and, if the creator has assigned exclusive rights to a third party, the creator may be prevented or discouraged from making further related creations because doing so might infringe upon the rights of the new owners of the patent or copyright.

 

Copyright/Intellectual Property

12 Comments to “Senate passes copyright bill to end 140-year protection for old songs”

  1. “However, if patent and copyright protections are in place for an over-long period of time, competitors may be discouraged, the financial benefits of the creations flow to people who are not the creators and, if the creator has assigned exclusive rights to a third party, the creator may be prevented or discouraged from making further related creations because doing so might infringe upon the rights of the new owners of the patent or copyright.”

    And Trump just signed the Music Modernization Act (MMA) into law …

  2. However, if patent and copyright protections are in place for an over-long period of time, competitors may be discouraged…

    How are competitors encouraged to write books by an expiring copyright?

    There certainly are people who want to channel financial benefits from a work to themselves after expiration, but I don’t consider them competitors.

    • Well, not having to compete with Tolkien would help high fantasy sales. 😉

      It’ll vary by genre but readers typically can read more than they can buy so removing deep backlist from the spending pool means the money gets redirected to other options.

      We’re already seeing something similar with Indies and KU drawing sales volume away from pricey frontlist: readers are spending the same or more but spreading it around. Indie income up, BPH income flat or lower.

      • Well, not having to compete with Tolkien would help high fantasy sales.

        Why won’t they have to compete with Tolkien books? If Tolkien’s books lose copyright, and are gone from the backlist, I’ll post his trilogy myself, compete with every fantasy author, and pocket the cash.

        I doubt that would happen, because his publisher will probably just keep sending the books to market, and pocket more cash because he no longer has to pay royalties.

        If the publisher dropped the ball, Amazon could sell the book themselves. With eBooks, all they do is erase the publisher’s name from the book page, insert their own, and pocket the cash.

        And in the unlikely event that everyone dropped the ball, I will selflessly step up, save our literary heritage, and pocket the cash.

        That long tail everybody was talking about a few years back just keeps getting longer and longer.

        • If the books are PD they only compete for eyeballs, not cash.

          And, sure, you can try to charge for the books…to the unwary. But the well-informed will go to Project Gutenberg, Feedbooks, or any of the free ebook sites all over. And pretty much every fantasy site will be passing on the word. PD day on Tolkien will be a fantasy holiday. 🙂

          In fact, if Australia doesn’t change its copyright regime, Tolkien books published during his lifetime will enter the PD there in 2023. Just five years. That’s THE HOBBIT, and LOTR, for starters.

          And the books will be up on Gutenberg Australia the next day. Safe bet that one.

          Also, expect a ton of derivative works to follow. Frodo in space! (Aussies have all the fun.)

          • But the well-informed will go to Project Gutenberg, Feedbooks, or any of the free ebook sites all over.

            Who cares where the dollars come from? As long as they get into my pocket I don’t care if they come from well-informed or morons.

            Tolkien then competes because morons like me buy from Amazon because of the lower transaction costs, and the well-informed like everyone else here get the book from Gutenberg.

            I don’t see how an expired copyright on Tolkien means people will write more books. In any case, Tolkien isn’t going anywhere.

            • They’ll write Middle Earth stories they can’t write now. 🙂
              Tons of Legolas erotica.

              • Tons of Legolas erotica

                Felix, you do realise that this is a really strong argument that the PD should not exist?

                Quite a few of my free PD books actually come from Amazon Classics rather than Project Gutenberg simply because it is more convenient and I suspect that this will, eventually, apply to LOTR as well (though not for me as I’ve already paid for the e-book as well as three different paper versions).

  3. The easy solution here isn’t to limit copyright (because all that helps is the big companies) it’s to make copyright non-transferable. I, the creator, will always have the copyright. I can lease it to someone for 7 years but then it is mine again. That would solve the problem for the most part. No more work-for-hire. No more being forced to give up your rights for life+70 years.

    • There could still be work-for-hire, but it would be stated as such up front.

      “You are designing/writing/building this for me for $$$$ to then do with what I see fit.”

      Much as I pay my painter or plumber today.

    • Copyright doesn’t force you to give up your rights for Life+70 years. Choosing to give up your rights for the length of copyright is a personal business decision that copyright and congress have nothing to do with, and should absolutely have no say in.

    • No more being forced to give up your rights for life+70 years.

      Since they are my rights, I want to do whatever I choose with them. Eliminating the right to sell them reduces their value. The fact that some object to my choices doesn’t matter.

      One of my choices is to submit to traditional publishing and give up the rights for a given period. Another choice is to click the Amazon KDP upload button. Nobody is forcing me to do either.

      And work-for-hire? I’ll work for anyone I want. There is nothing special about writing or writers. It’s a service that can be traded in the economy just like any other service.

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