Neil Portnow and Booker T. Jones
Photo: Sean Zanni
Why The Artist Community Doesn't Support Sen. Wyden's Misleading ACCESS Bill
In April, the Music Modernization Act passed the House of Representatives by a unanimous 415–0 vote, proving itself as a mutually beneficial piece of legislation reform agreed upon by a wide range of stakeholders willing to set aside political and organizational differences to finally unite in the name of updating our music licensing system for the digital era.
Now, a new bill introduced by Sen. Ron Wyden (D-Ore.) threatens to stifle that progress with a misleading alternate, the Accessibility for Curators, Creators, Educators, Scholars, and Society (ACCESS) to Recordings Act.
The ACCESS to Recordings Act's 11th-hour introduction is a thinly veiled attempt to disrupt the MMA's progress, which is now under consideration in the U.S. Senate.
As for the bill itself, the ACCESS to Recordings Act appears to be a response to criticism of the CLASSICS Act portion of the MMA offered by some law professors and anti-copyright interest groups. In a letter to the Senate Judiciary Committee, these law professors perpetuated the false claim that the CLASSICS Act includes an extension of copyright term. Actually, CLASSICS does nothing to alter or extend the length of copyright term, which is clearly established by federal copyright law. All the bill does is ensure that pre-1972 sound recordings are treated the same way as any other recording when played on digital radio so that all artists are fairly compensated for their work.
The professors' arguments not only create an erroneous perception that the MMA seeks to extend copyright term, they also asserted that the CLASSICS Act "arbitrarily exempts pre-1972 sound recordings from almost all the statutory copyright limitations that apply to other types of works." But the CLASSICS Act explicitly extends fair use protections for libraries, archives, and educational institutions.
While these finer points of contention are easily provable as false, the misleading rhetoric also extends to criticizing the MMA's relationship to the overall purpose of copyright and what's good for the public. Astonishingly, the professors behind the letter accuse the CLASSICS act of doing nothing to incentivize the creation of new works, which posits a narrow definition of the purpose of copyright and misreads the effects of rewarding pre-1972 recording artists for their creative labors. In fact, by leveling the playing field for all artists, the bill builds confidence in the creative community that their creative works will be protected in the future.
Wyden's ACCESS to Recordings bill undermines the closing of copyright loopholes, shortens copyright term, and even goes as far to strip pre-1972 recordings of protection they currently have under state law. And this reveals the bill’s true aim: to actually weaken the protections for these recordings and push them into the public domain faster.
"Copyright reform for pre-1972 sound recordings must consider the interests of all stakeholders — not just those of the for-profit record labels," Wyden said in a statement.
In truth, the interests of all stakeholders — including artists, songwriters, studio professionals, music publishers, technology companies, and record labels — have been considered and satisfied by the MMA. That’s why iconic pre-1972 artists like Booker T. Jones, Dionne Warwick, and Smokey Robinson have all testified before Congress in favor of the CLASSICS Act as part of the comprehensive MMA. But the ACCESS bill, on the other hand, has absolutely zero support from the artist and creative community. This is not the case with the MMA, as artists, songwriters and producers alike have testified on its behalf.
At this historic moment in legislative history, when the MMA is on the cusp of finally bringing our music licensing system into the 21st century, the music community can ill afford to lose ground because of unfounded claims, misleading facts, and a disruptive bill that only confuses and abuses the process.