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Arguments supporting preservation ignored

At Tuesday’s Senate Judiciary Committee hearing on the Music Modernization Act (S.2344) otherwise engaged Senators were not interested in preservation concerns brought to their attention by Meredith Rose from Public Knowledge (PK). In addition to PK, Meredith spoke on behalf of the Library Copyright Alliance (LCA), the Music Library Association (MLA), and the Association for Recorded Sound Collections (ARSC).

If you were at the hearing you would have thought that the Music Modernization Act is one of the most glorious copyright legislative efforts ever. Senator Hatch noted that “it’s not perfect,” but the music industry and artist stakeholders have reached consensus on a bipartisan bill that will finally right some historical wrongs associated with music licensing. And it’s not every day that Smokey Robinson, a legendary singer and songwriter sits before you as a hearing witness.

The legislation brings together three bills – the original Music Modernization Act, the Compensating Legacy Artists for their Songs, Service, and Important Contribution to Society (CLASSICS) ACT, and the Allocation for Music Producers (AMP) Act. The legislation modernizes music licensing, federalizes a digital public performance right for pre-1972 sound recordings, and provides royalties to music producers and engineers for the first time.

LCA’s focus has been on the CLASSICS Act. Note that the other rights of copyright (reproduction, distribution, the right to make derivative works) are not federalized in the CLASSICS legislation. Because of prior poor policy decisions made by Congress, pre-1972 sound recordings are not protected by federal copyright law, but by a hodge-podge of differing state laws that bring undue confusion and frustration to anyone who wants to use pre-1972 sound recordings, including libraries that want to preserve music collections.

By federalizing one aspect of a public performance right—digital streaming—musical artists who wrote and performed music before February 15, 1972 finally will be compensated whenever their songs are played on digital radio. Good. Of course, the record labels benefit because they have a share in the royalty money as well—50%.

We agree that artists should be fairly compensated for their work, but our concern is that other music policy issues in the public interest could have been addressed in the landmark legislation but were not. Yes, the legislation includes copyright exceptions that libraries rely on—fair use §107 and library reproductions §108—but these exceptions do not apply to the proposed federalized right of digital public performance. LCA was able to get Section 110 exceptions which do apply to public performance in legislation, but we fought for more. A small improvement—the right to preserve music held in libraries and archives—would be welcome. Ironically, the labels, artists and songwriters I doubt would care about the works that libraries want to preserve because most have never been commercially viable—spoken word collections that document history, home recordings of local bands playing Irish music to preserve their culture, and other unique collections that may be one of a kind.

Some doubt that any other music legislation will see the light of day because it is not in the interests of the music industry. At the same time, the music industry is not against preservation. They just care about the music that they hold rights to.

Senator Kennedy (R-LA) who also sets on the Senate Appropriations Committee said that “we cannot be a civilized country if art is not protected,” a comment to remember when the time comes to fund National Endowment for the Arts (NEA) and National Endowment for the Humanities (NEH).

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Carrie Russell

Carrie Russell is the director of the Program on Public Access to Information in the Washington Office. Her portfolio includes copyright, international copyright, accessibility, e-books, and other public policy issues. She has an MLIS from the University of Wisconsin-Milwaukee and an MA in media arts from the University of Arizona.

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