What might the proposed changes in copyright law mean for classical music?

Last month the U.S. Copyright Office released a report entitled Copyright and the Music Marketplace. For everyone involved in both creating and consuming music, the implications of the report are potentially seismic — but with the exception of a few law professionals who know how to read these documents and decode them, discussions of the report have been limited.

Simply put, the report states a need to emend copyright law in a manner that recognizes we're not in the player-piano era any more: we now live in a digital age. Digital streaming has drastically changed how we experience music every day; vinyl may be experiencing a resurgence, but no one believes we're going to turn the clock back to 1980, and few would dispute that the laws governing the copyright of music are outdated.

Maria Pallante, director of the Copyright Office, told the Hollywood Reporter, "The structures that evolved in the previous century to facilitate the lawful exploitation of musical works and sound recordings, while perhaps adequate for the era of discs and tapes, are under significant stress...From a copyright perspective, we are trying to deliver bits and bytes through a Victrola."

While music copyright law, like net neutrality, may not seem significant to most people on a daily basis, it now more than ever affects how you function throughout the day, dictating how and what you watch and listen to through digital copy codes and service contracts. Whereas you formerly bought an LP and paid for it only once, in a streaming world, royalties are changing hands every time you hit play — and that means that your rights, as well as the rights of the artists and the services you're using, are potentially subject to constant renegotiation.

The proposed changes aim both to bring greater consistency and transparency to how royalty payments are handled, and to increase artists' freedom to independently negotiate terms with licensees such as streaming services. Performance rights organizations such as ASCAP and BMI have traditionally handled royalty payments in a standardized way, but the Copyright Office is now suggesting that rights holders be allowed to unbundle some of their rights so as to negotiate directly with streaming services.

In general, the changes have been seen as favorable to rights-holders (composers, performers, record labels) versus licensees (for example, streaming services and broadcasters). The Digital Media Association has criticized the report, since giving individual rights-holders more freedom to negotiate terms (rather than having royalties covered under blanket statutory licenses) will create more work — and potentially more expenses — for streaming services.

Two major proposed concessions to rights-holders are (a) bringing pre-1972 recordings under federal copyright protection — so streaming services will have to pay artists and labels for the use of, say, that classic Wagner recording you've been digging — and (b) adding a sound recording royalty to terrestrial radio airplay. Currently, when music is played on the radio (broadcast, not streaming), only the composer or songwriter earns a royalty, but the performers and record labels don't.

So what does this mean for classical music? That's hard to say at this point. For one thing, the report doesn't seem to have been written with classical music in mind: its focus is largely on singers, songwriters, and publishers of popular music. That may be understandable given that classical music accounts for only a small fraction of music sales overall, and that many compositions in the classical repertoire are in the public domain — but the creation, distribution, and performance of classical music, whether it be canon or new works, would be affected by changes to copyright law.

While the proposed changes would open up additional channels for artists and composers to earn royalties, they might also lead to greater standardization and more conservative programming if they increase incentives for licensees and consumers to forgo new music for the tried, true, and affordable.

The report states that "if we were to do it all again, we would never design the system that we have today...But as tempting as it may be to daydream about a new model built from scratch, such a course would seem to be logistically and politically unrealistic. We must take the world as we find it, and seek to shape something new from the material we have on hand."

Will the proposed changes be enacted by Congress? Will artists and audiences be better off? Only time will tell.

Garrett Tiedemann is a writer, filmmaker and composer who owns the multimedia lab CyNar Pictures and its record label American Residue Records.

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