Conyers Introduces Bill to Require Royalties For Digital Use of Pre-'72 Sound Recordings

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By Anandashankar Mazumdar

May 30 — Legislation introduced May 29 in the House of Representatives would create a statutory license for digital streaming or downloads of all music, even pre-1972 sound recordings, and mandate payment of royalties. Under current law, pre-1972 sound recordings are not subject to federal copyright law.

The Respecting Senior Performers as Essential Cultural Treasures, or “Respect,” Act, introduced by Rep. John Conyers Jr. (D-Mich.), the ranking minority member of the House Judiciary Committee, is directed at amending the Copyright Act “to provide for the payment of royalties for the performance of sound recordings fixed before February 15, 1972.”

Sound recordings did not come within the ambit of federal copyright law until 1972. Thus, recordings made before that are subject to a patchwork of state laws, including criminal laws, as well as contracts, anti-bootlegging, right of publicity and other civil laws.

Conyers, who represents a district centering on Detroit, appeared with Motown recording artist Martha Reeves of Martha and the Vandellas to announce the introduction of the bill.

“Digital radio stations that earn millions off Motown classics but fail to pay royalties to the artists who recorded them are withholding hard-earned profits from deserving musicians,” Conyers said. “Refusing retired artists royalties from digital radio stations is particularly unfair.”

In April, several record labels sued Pandora Media Inc., the operator of the Pandora music streaming service, in a New York state court. The record labels alleged that Pandora had infringed their rights under New York state law for using pre-1972 recordings without authorization or payment of royalties.

In 2012, the Copyright Office issue a report recommending that Congress extend the Copyright Act of 1976 to cover pre-1972 sound recordings. A bill was introduced in 2011 to make this happen, but it did not make it out of the Judiciary Committee.

H.R. 4772 would amend the federal copyright statute to amend Section 114, which would:

  •  Create a compulsory license for the use of pre-1972 music on non-interactive digital music services, including satellite radio, internet radio and cable music. Under this license, any of these services could use music without seeking permission from the copyright holders provided that they comply with the terms of the license, including payment of royalties.
  •  Set royalty rates for pre-1972 sound recordings at the same levels already established for post-1972 works.
  •  Authorize SoundExchange Inc. to sue for failure to pay required loyalties in federal district court. The action would be characterized as a breach of contract because pre-1972 sound recordings would still not be subject to claims of copyright infringement under federal law.
  •  Bar any action under state law if the terms of the compulsory license, including payment of royalties, are met.
  •  Affirm that pre-1972 recordings are still not subject to protection under federal copyright law generally.
  •  Expire on Feb. 15, 2067, when pre-1972 sound recordings are scheduled to be encompassed by the Copyright Act.

    Original co-sponsors of H.R. 4772 include Reps. J. Howard Coble (R-N.C.), Marsha W. Blackburn (R-Tenn.), Judy M. Chu (D-Calif.), James H.S. Cooper (D-Tenn.), Theodore E. Deutch (D-Fla.), Louie B. Gohmert Jr. (R-Texas) and Hakeem S. Jeffries (D-N.Y.).

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