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musicFIRST calls for US federal law to apply to all sound recordings

By | Published on Thursday 16 February 2017


musicFIRST, the lobbying group for the US record industry, has again set out its demands for copyright reform stateside. The organisation used the fact it was 15 Feb yesterday – which is the day in 1972 when federal copyright law first protected sound recordings – to have another bluster.

Prior to that 1970s rejig of federal copyright law sound recordings were protected by state-level copyright rules. And recordings released before 1972 still are. That’s one of the things musicFIRST would like to see fixed.

As much previously reported, the pre-1972 anomaly means that the royalties online and satellite radio stations have to pay artists and labels under federal law don’t apply to older tracks. Which has meant heritage acts have had to fight for payment through the state courts. Flo & Eddie have led on that of course, being successful in California, but less so on appeal in New York. It would be much easier if federal law just applied to all sound recordings that are still in copyright.

Or, in the words of musicFIRST Executive Director Chris Israel: “Thanks to a quirk in US law, songs recorded before this date in 1972 do not have federal copyright protection, and that is a huge problem. Up to 15% of all the music on some digital radio services was recorded before 15 Feb 1972. Streaming, satellite and FM radio have entire channels dedicated to this iconic music, yet this anomaly in US law allows them to use pre-72 music without requiring them to compensate the artists whose recordings they play on the air”.

He goes on: “Many older artists have been forced to pursue fair compensation in a variety of state courts. This is extremely inefficient, unfair and unnecessary. Simple legislation will address this clear problem. This Congress provides a historic opportunity to fix the flaws of our current copyright system and treat music the same regardless of when it was recorded”.

Not that federal copyright law is perfect, of course, or at least not as far as the record industry is concerned. That copyright system doesn’t provide a general performing right for sound recordings, which is unusual, and means that while satellite and online radio has to pay royalties to artists and labels, AM/FM stations do not. Perversely, one conclusion of the Flo & Eddie royalties win in the Californian courts is that at a state level in California AM/FM broadcasters possibly should be paying royalties, not that they ever have.

Either way, musicFIRST would like a proper performing right added to federal law just before it’s applied backwards to pre-1972 catalogue. Adds Israel: “Protecting pre-72 sound recordings, establishing a performance right for radio and establishing rate standard parity across various digital platforms enjoy broad bi-partisan support in Congress. We look forward to engaging Congress and all other industry stakeholders to ensure music creators are compensated fairly for their works across all platforms”.

While it’s true that the reforms musicFIRST advocates do enjoy some Congressional support, it’s also true that the radio lobby remains powerful in Washington. Though Prez Trumpy’s going to pull down that legacy lobbying machine, isn’t he? So I’m sure it’ll all be fine.