The US Congress is looking to effectively extend copyright on some sound recordings to a staggering 144 years – making it the twelfth time copyright rules have been extended or expanded since the 1970s.
The CLASSICS Act being debated in the Senate and House would create a new federal copyright rule for sound recordings made between 1923 and 1972 that would keep them out of the public domain until 2067.
The proposed act is being combined with another bill – the Music Modernization Act – which is aimed at ensuring that musicians are paid for their music as we enter the digital streaming era, under the logic that it makes sense to pull together a patchwork of laws under one regime.
The upshot, however, is that recordings from the 1920s to the 1970s cannot be streamed without a license.
While it's understandable that the enormous value of music ranging from Ella Fitzgerald to Elvis Presley to David Bowie should be protected, critics are frustrated that lawmakers are effectively condemning vast swathes of culturally important recordings to the dustbin of history by expanding a blanket copyright rather than requiring copyright holders to assert their rights.
In many cases, it is not clear who owns the copyright to a recorded work – so called "orphan works" – and it can be a difficult and time-consuming process to track down who holds it and reach agreement on a licensing fee.
That is not the case for the vast majority of commercially valuable recordings which has a huge and established system for paying license fees. But copyright holders – typically large corporations – don't want the hassle of having to actively assert their rights and so have successfully lobbied for there to be no such requirement.
And that means that everything else is protected to the extent that it can't be played. Until 2067. Although presumably long before then Congress will have passed more laws extending or expanding copyright further and further into the future.
Originally, copyright was seen as something that would extend to the end of someone's life and this a certain amount of time after their death. It was, after all, their work and so once they were gone, it didn't serve any purpose to have its rights controlled.
But of course those rights are worth money, leading initially to artists' estates taking in revenue. Very quickly corporations realized the value of licensing old work. And then we got to the point where big artists – like Michael Jackson and David Bowie – used their inherent value and future earnings from song rights to borrow money.
While there's still money to be made, you can expect to see that copyright expanding and extending ad infinitum. Will people in 2067 still be listening to Bing Crosby sing White Christmas? Probably, yes. Kerr-ching!
But this revenue protection racket is coming with an increasing cultural cost, critics charge, and we risk being robbed of recordings of huge cultural value simply because they don't have a commercial licensing structure behind them.
Protect the big guys
There's also another strange side-effect of the CLASSICS Act – it will give the current streaming giants of Pandora, Spotify and Sirius XM a competitive edge over others. Those companies already have agreements – private agreements it should be noted – with record labels that provide better terms than anyone else, now and in future.
As such, the entire approach will effectively lock in giant corporations on both sides when it comes to listening to 50 years' worth of recordings.
Some groups like the EFF are organizing to try to persuade lawmakers why they should take a more nuanced view of copyright, and avoid locking away cultural heritage by coming up with compromises solutions. As ever, the best thing you can do if this issue bothers you is to fund such groups and/or contact your representatives in Congress to express your view. ®