Shortly after Congress reconvened from its August recess, the Senate approved amendments to update the Music Modernization Act (MMA), including a substantial change from previous versions that would have extended copyright protections for some music to almost 150 years.
The most troubling provision of the previous MMA was from the CLASSICS Act, a separate piece of legislation that was consolidated into the MMA. This would have given copyright holders for pre-1972 recorded music the rights to digital production or distribution, whereas it is now in the public domain.
It also would have extended the “crazy quilt” of state copyright laws, which fail to offer some of the creative protections of federal law and extend some rights for up to 144 years.
After a great deal of public input, especially from music libraries and archives, which would have been particularly harmed by CLASSICS, the MMA received some substantial edits. As Mitch Stoltz of EFF summarizes:
The new “Classics Protection and Access Act” section of MMA clears away most of the varied and uncertain state laws governing pre-1972 recordings, and in their place applies nearly all of federal copyright law. Copyright holders — again, mainly record labels — gain a new digital performance right equivalent to the one that already applies to recent recordings streamed over the Internet or satellite radio. But older recordings will also get the full set of public rights and protections that apply to other creative work. Fair use, the first sale doctrine, and protections for libraries and educators will apply explicitly…
The new bill also brings older recordings into the public domain sooner. Recordings made before 1923 will exit from all copyright protection after a 3-year grace period. Recordings made from 1923 to 1956 will enter the public domain over the next several decades. And recordings from 1957 onward will continue under copyright until 2067, as before. These terms are still ridiculously long — up to 110 years from first publication, which is longer than any other U.S. copyright.
This updated version also contains an “orphaned works” (copyrighted material where the rightsholder can’t be identified) provision to cover music when a rights holder can’t be found. Anyone can use a pre-1972 recording for noncommercial purposes, provided they file a notice with the copyright office and wait the required 90 days for a rights holder to emerge and object. (Even if the rights holder does object, the would-be user can still argue their use is fair.)
The bill still leaves much to be desired, but the new guardrails (influenced in large part by Ron Wyden’s ACCESS to Recordings Act) are an important check against the increased IP rights copyright holders would be given under MMA.