Copyright to the Musician after Two Years

A brilliant though flawed idea by the Future of Music Coalition:

At this time, there are thousands of records that are commercially unavailable because record labels have decided no longer to manufacture and distribute them. When a label refuses to release an album or takes it out of print, no one benefits –neither the label nor the artist. Recording artists are being denied audiences, and the public is unable to purchase desired music. If the Sonny Bono Copyright Extension Act was enacted to encourage dissemination of copyrighted works, as has been widely claimed (particularly when the Act was proposed and passed and the Eldred case was litigated and adjudicated), then what social purpose does permitting copyright to waste away while culturally important sound recordings go unavailable and unused? Copyright was never intended to become a warehouse to capture culture and make it unavailable. This must not be allowed to continue.

The artists would benefit from a compulsory license by making money and being able to release a part of their history and share it with the public. Most importantly, however, the public would benefit because it would have access to the recordings. In this age of consolidation, record labels increasingly make decisions of what to distribute based on quantity expected to be sold, and many recordings still have significant public demand, but not large enough for the labels to think it worthwhile to keep the product in print. In addition, a part of the illegitimate peer to peer audience is searching for and downloading works that are no longer in print. The public has no other way to get this music, and neither the artist nor record company make any money when the work is distributed through illegitimate services. By providing the artist with a right to exploit their recordings when the label is not exploiting them, the public will have a legitimate way to get this music, and the artist and label will be compensated.

We propose a compulsory license that would work as follows: If a record label does not press and sell physical copies of a sound recording copyright through normal retail channels in the U.S. for a period of two years (whether or not the recording has been commercially released and distributed in the past), the recording artist who created the recording would be able to apply for such a license. The license would grant the artist an exclusive license to manufacture and commercially distribute the sound recording copyright in physical format and a non-exclusive license for all other rights.

Basically, the record labels and the artist will switch positions, so the record label would not have any costs or liabilities. The artist would undertake the costs traditionally borne by the labels — manufacturing, distributing and promoting, as well as all other obligations flowing from the distribution of the recordings (e.g., payment to the songwriter(s) and union obligations for the session musicians and vocalists) — and would pay the copyright owner (i.e., the record label) a portion of the profits.

There are compelling practical and economic arguments for this type of compulsory license. A compulsory license for out-of-print sound recordings would provide found money for everyone involved, and the proceeds would serve commercial and cultural purposes. Moreover, this would generate new income for a recording industry that has complained continually about falling income and for many artists who never were, or are no longer, superstars. We also think that it would fruitful for those who work in the other copyright industries to comment on how commercial unavailability impacts their livelihood and the nations good.

The advantage of this proposal is that it prevents out-of-print works from disappearing. It also provides a new source of income for ignored artists. However, it simply means that big labels will keep CDs “in print” artificially in order to prolong their exclusive rights. They certainly have figured out ways to finagle the numbers in the past. Also, one could easily argue that making something available through itunes is in fact keeping the music “in print” (to use a clumsy metaphor here).

We can talk about what is fair and just for artists who have recorded in the past, but for the present, an artist can insist on such agreements right now without any help at the federal level.

One thing is clear though. The argument that Congress has no authority to retroactively remove copyright monopolies was essentially nullified by Eldred. Congress could easily take away monopolistic privileges, consistency be damned.