Three Problems with the ACCESS Act

As I was hitting publish on my previous piece about the CLASSICS Act, Senator Ron Wyden introduced the “Accessibility for Curators, Creators, Educators, Scholars, and Society to Recordings Act” or the “ACCESS to Recordings Act”.

The act is another attempt to address the issue of pre-1972 sound recordings but this act takes a different approach. Where the CLASSICS Act aims to strategically smooth out some of the rougher edges of pre-1972 sound recordings, the ACCESS Act aims to bring those works fully under federal protection.

Philosophically, I agree with this idea. Though it may not always be a popular view, I believe that having two separate copyright systems with different rules, courts and laws is untenable. Full federalization, in my view, should be the ultimate goal.

The problem is that there are several key challenges that make full federalization of pre-1972 sound recordings incredibly difficult. If it had been easy, it probably would have been done in 1972 when newer sound recordings were put in federal protection.

Either handling these challenges poorly or ignoring them not only risks making the pre-1972 sound recording situation worse, but could end up damaging our entire copyright system.

Unfortunately, that’s exactly what the ACCESS Act is, an act that either ignores or poorly addresses key challenges in bringing pre-1972 sound recordings under federal protection and the act risks doing far more harm than good.

A Brief Recap: How We Got Here

As we discussed in more detail here, pre-1972 sound recordings are not protected under federal copyright law. Instead, they are covered under a hodgepodge of state and common law.

This is because the Copyright Act of 1909 did not automatically extend copyright protection to new technologies (unlike the Copyright Act of 1976, which replaced it). Though Congress moved to extend federal protection to sound recordings in 1971, it only applied to works created on or after February 15, 1972. All sound recordings from before then remained under the old system.

This created a lot of problems as time went on, including how do pre-1972 sound recordings work under the Digital Millennium Copyright Act (DMCA), which provides safe harbor to web hosts and other service providers, and under the Digital Performance Right in Sound Recordings Act, which gave sound recordings a limited public performance right when streamed digitally.

The CLASSICS Act, which we wrote about here, is an attempt to smooth out some of those rough edges. It aims to grant pre-1972 sound recordings the same digital public performance rights as later songs. It, along with the Music Modernization Act it is a part of, would also make a compulsory license for that right and create an agency for the handling of royalties. The CLASSICS Act would also clarify that pre-1972 sound recordings are covered under the DMCA.

However, the CLASSICS Act would not provide full federalization. Most of the rights in the sound recordings would remain with state law.

This has led to some criticisms of the CLASSICS Act. Though it doesn’t alter the date of expiration and only federalizes rights that pre-1972 artists have won in court (at least in practice), it has been called by some a rights grab or a copyright extension, though it is neither.

As a response to those criticisms comes the ACCESS Act, which aims to fully federalize copyright protection for pre-1972 sound recordings. However, it does so in a way that is dangerous not just to owners of pre-1972 works, but to all content creators.

The Basics of the ACCESS Act

The ACCESS Act is a relatively short bill that basically makes it so that, in one fell swoop, all pre-1972 sound recordings would come under federal protection.

The act makes it clear that whoever is the copyright holder currently would remain so. There would also be a three year grace period where such rightsholders could still receive statutory damages and attorneys fees without a timely registration and it would adjust the term of copyright on such sound recordings to match the current law, either 95 years after publication or 120 years after creation, whichever is less.

This would mean that many sound recordings would likely lapse into the public domain immediately or soon after the act is passed. However, for sound recordings published between January 1, 1923 and December 31, 1930, there would be a grace period where the work would not expire until December 31, 2025.

However, that grace period would only apply if the rightsholder complied with regulations created by the Register of Copyrights and the work was available for normal commercial exploitation.

Beyond that, the act doesn’t say very much, which is a huge problem since there are some significant challenges that the ACCESS Act fails to address.

Problem 1: The Registration and Deposit Requirement

Under U.S. copyright law, copyright is imbued in a work the moment it is fixed into a tangible medium of expression. However, if you want to sue over an infringement of your work you’ll have to register the work with the U.S. Copyright Office and deposit the work with the Library of Congress.

Furthermore, if you want to collect statutory damages and attorney’s fees, you’ll have to register the work timely, which is either within three months of publication or before the infringement takes place.

However, pre-1972 sound recordings are not registered with the U.S. Copyright Office. There was no reason to do so as there was no federal protection. Any act that attempts to federalize pre-1972 sound recordings must address this issue, otherwise, millions of rightsholders may not be able to go to court to address infringements.

The ACCESS Act, however, doesn’t really address this problem. Though it grants a three-year grace period for filing registrations, it leaves it up to the Register of Copyrights to determine what changes need to be made to the registration and deposit requirements. However, those changes won’t be announced for up to one year after the bill is enacted, meaning right before the bill’s effective date.

But the copyright registration process is already a big mess. According to Copyright Office, even under ideal circumstances (web claim with no correspondence) it takes an average of 7 months to turn around a copyright registration. Adding millions of more works (nearly 50 years of sound recordings) onto this pile without a concise plan is going to cause the time to increase exponentially.

To make matters worse, the process is financially burdensome to rightsholders. Currently a standard application costs $55 and a single application (one work, one author) costs $35, not count the time and expense in preparing the applications (I charge a minimum of $150 for the service). This amount, as we’ll see in a second, is about to get even more burdensome.

While it may not be hugely onerous for one or two applications, many rightsholders are going to be tasked with filing thousands of applications within a few years, creating a huge burden for many of them.

But as bad as it is for rightsholders, it’s equally bad for the Copyright Office. According to a recent evaluation, the Copyright Office loses between $35 and $51 per registration filed. In short, the Copyright Office will likely lose millions trying to keep up.

Because of this loss, the Copyright Office has proposed increased fees of $75 for a standard application and $55 for a single application, which increases the burden on creators without fully eliminating the burden placed on the Copyright Office.

In short, the copyright registration process is barely functioning as is. Though modifications to the registration and deposit requirement could limit the impact, the bill makes it so that we don’t know what those modifications might look like until a year AFTER it’s passed.

This could harm not just owners of pre-1972 sound recordings, but ANY creator that wants to register their work.

Problem 2: The Notice Requirement

The Copyright Act of 1976 eliminated any requirement to have a copyright notice placed on  it. However, prior to that, it was a requirement if a work wanted copyright protection.

There are many examples of works losing copyright protection for being distributed without a notice, one of the most famous is the film Night of the Living Dead.

However, pre-1972 sound recordings were often distributed without a copyright notice. Since they weren’t covered under federal law, the notice requirement didn’t apply.

If federalization of pre-1972 sound recordings were to maintain the notice requirement as is, many such recordings could lose protection simply for following the law as it was written when they created their work.

While it would be simple to eliminate the notice requirement for pre-1972 sound recordings, the act doesn’t do that. Instead, it once again puts the onus on the Register of Copyrights to come up with appropriate modifications to the notice requirement within a year of it passing.

In short, another important question the act could have and should have answered is punted on, letting the Register of Copyrights address the issue a year after the act is enacted.

Problem 3: The Takings Clause

Note: Once again, Terry Hart at CopyHype has a longer post on this topic. I highly recommend checking it out if this interests you. 

The Fifth Amendment states, among other things, that no private property shall be taken for public use “without just compensation”. This is known as The Takings Clause and applies to copyright.

In 2011, when the U.S. Copyright Office evaluated the prospect of providing federal copyright protection to pre-1972 sound recordings, they recognized the takings clause as a serious issue.

Basically, the Copyright Office felt that, as long as all state rights had a federal analogue, there was no takings clause claim on the rights themselves. However, by shortening the term of the copyright, such federalization could open the door to the takings claims as it would be taking private property, some of it still is significant economic value, and making it available for public use (placing it in the public domain) without compensation.

The Copyright Office came up with a novel solution. Grant pre-1972 sound recordings the default copyright term (95 years after publication or 120 years after creation) but makes the eligible to be protected until 2067, the current term.

To secure the 2067 date, rightsholders would have to take some additional action, including  making the work commercially available and providing notice to the Copyright Office that it is. Since, according to the Copyright Office, such steps would not be identified as a taking under the Fifth Amendment, it complies with the the Takings Clause.

However, the ACCESS Act doesn’t do that. Instead, it provides the current default term and uses a similar principal of commercial sale/notice requirements but only to extend the copyright term on 1923-1930 sound recordings to 2025. Outside of early 1972 sound recordings, no pre-1972 sound recordings would have a term of 2067 under the ACCESS Act.

While there are many legitimate reasons to express concern over such a lengthy copyright term. The fact is that reducing it opens up the ACCESS Act to constitutional challenges, challenges the Copyright Office feels have a good chance of succeeding.

This, in turn, risks making an even bigger mess of pre-1972 sound recordings, placing the ultimate impact (or even existence) of the ACCESS Act in the hands of judges and rulings that likely won’t come for many years.

Bottom Line

As I said above, I philosophically support the idea of federalizing pre-1972 sound recordings. However, there are many challenges to doing so and those challenges haven’t gotten easier with time.

The ACCESS Act either fails to address those challenges or simply punts on them, asking the Register of Copyrights to solve them AFTER the act is enacted.

The danger here isn’t just to pre-1972 sound recordings. Anyone who wants to register their work with the U.S. Copyright Office needs to pay attention as it could easily impact them.

The lack of attention to these issues lends credence to the idea that the ACCESS Act is not a serious act, but rather, an attempt to derail the CLASSICS Act and the Music Modernization Act it is currently a part of.

While I agree with the ultimate goal of federalizing protection for pre-1972 sound recordings, doing so is difficult. That’s why it hasn’t been done before now.

Any serious attempt to do as such needs to address these and other issues, which the ACCESS Act doesn’t. The CLASSICS Act isn’t perfect, but it doesn’t raise any of these issues  and attempts to smooth out some of the worst rough edges.

So, while the CLASSICS At may be an ill-fitting bandage, it’s better than a rushed and unplanned open heart surgery, which is what the ACCESS Act is.