The Music Modernization Act: Extending Copyright Protection to Pre-1972 Sound Recordings

Citation
The Music Modernization Act: Extending Copyright Protection to Pre-1972 Sound Recordings, CRS Legal Sidebar (LSB10181) (Oct. 15, 2018) (full-text).

Overview
On October 11, 2018, President Trump signed the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (H.R. 1551) (the MMA) into law. The final bill reflects a compromise reached in the Senate regarding Title II of the bill, which was formerly called the Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act (the CLASSICS Act).

In this Sidebar, the CLASSICS Act would have granted limited federal copyright protection for digital public performances of sound recordings made before February 15, 1972. Until the MMA, federal copyright law did not cover pre-1972 sound recordings. As originally designed, the CLASSICS Act would have granted a blanket copyright term to these older sound recordings, with the new federal protection lasting until February 15, 2067, regardless of when the recording was created. However, this proposed term attracted some criticism concerning its potential impact on the public domain.

As enacted into law, Title II of the MMA, now called the Classics Protection and Access Act, extends copyright protection to pre-1972 sounds recordings on essentially the same terms as post-1972 sound recordings. Specifically, anyone who engages in “covered activity” with respect to a pre-1972 sound recording is liable “to the same extent as an infringer of copyright.” “Covered activity” is defined to include any activity that “the copyright owner of a sound recording would have the exclusive right to do or authorize. . . if the sound recording were fixed on or after February 15, 1972. Equivalent state law copyright protections for pre-1972 sound recordings are generally preempted, which is a broader preemption provision than those contained in the earlier CLASSICS Act.

Under the MMA, instead of a blanket term lasting until 2067, federal protection for pre-1972 sound recordings will expire 95 years after the date of their first publication, with an additional number of years added to the term depending on when the sound recording was first published. For pre-1923 recordings, this “transition period” is three years; recordings published between 1923 and 1946 get five additional years; and recordings from 1947–1956 get 15 additional years. Protection for recordings published between 1957 and February 15, 1972, as in the earlier version of the CLASSICS Act, will not expire until 2067. The new law also contains an “orphan works” provision that permits certain noncommercial uses of pre-1972 sound recordings when the user cannot determine whether the recording is being commercially exploited despite a “good faith, reasonable search” for the rights holder.

The other two main provisions of the MMA remained largely the same. Title I of the law, the Musical Works Modernization Act, creates a blanket compulsory license for certain digital music services to make and distribute musical works online, to be administered by a newly created nonprofit Mechanical Licensing Collective (MLC). These changes are intended to streamline and modernize how copyright royalties are determined and paid when musical works are streamed or distributed online. (One significant change in the final amendments limits the licensing activities of the MLC to administering the new blanket license.) Title III, the Allocation for Music Producers Act, permits royalty payments to music producers and sound engineers under certain circumstances. More detail on how these provisions will impact music licensing is available in this report.