May 25, 2018

    United States Senate Committee on the Judiciary
    224 Dirksen Senate Office Building
    Washington, DC 20510

    Dear Chairman Grassley, Ranking Member Feinstein, and Committee Members:

    On behalf of the hundreds of thousands of members of our respective organizations, we write to express our opposition to S. 2393, the CLASSICS Act (“the Act”), an act which would extend parts of federal copyright to pre-1972 sound recordings. The Act would create new rights in recordings that are nearly half a century old, generate massive inconsistencies in federal copyright law, and do nothing to incentivize new creative works.

    Currently, such pre-1972 recordings are governed through various state laws. The Act seeks to apply a federal framework to these recordings, but in doing so, upends the system and leads to manifestly unjust results.

    If enacted, recordings made between 1923 and 1972 could not be streamed online without a license. This means that such recordings would enjoy significantly longer copyright terms than those for later sound recordings and other types of work. Typically, sound recordings published on or after February 15, 1972 enjoy 95 years of protection. But under the Act, which fixes the end of the digital audio transmission copyright term to the year 2067, early recordings would receive far more than 95 years of protection. For a recording made in 1923, the Act would grant protection for a staggering 144 years after its creation. No other copyright law anywhere affords such an unreasonably long term of protection.

    Importantly, when considering that fact, it becomes clear that the Act generally does not benefit the artists who recorded sound from 1923-1972, but unreasonably rewards their subsequent rights holders while depriving the public equitable access to these recordings.

    To say that the Act would upend the current copyright landscape is an understatement, especially given the retroactive nature of the Act’s protections. Creators of any existing work that includes pre-1972 recordings would have to secure new permissions from the owners of each retroactive copyright in each sound recording. Simply put, the Act’s real-world effect would be so burdensome as to effectively remove many works, including some popular audio documentaries, podcasts, etc., from the public arena.

    We strongly urge the committee to reject the Act as written, or alternatively, to adopt an amended version which would remedy the Act’s most troublesome effects. At the very least, among other important amendments, the Act should provide that pre-1972 recordings enjoy the same protection term as more-recently published sound recordings, which generally expire 95 years after creation.

    America’s copyright system needs to be modernized, but not like this, and certainly not in a fashion that results in excessively long periods of protection, creates massive inconsistencies in the copyrighting of sound recordings, and gives inequitable access to those sound recordings.