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Rep. Darrell Issa: It’s Time to Bring Pre-1972 Copyrights Out of the Dark Ages (Guest Column)

When Sly Stone and Charley Pride received the Lifetime Achievement Award at this year’s Grammy Awards in my home state of California, their place in history was preserved for all time. Unfortunately for them and so many others, their rights to their own work is not.

The moment highlighted a key policy wrinkle hurting many of our legacy artists: Stone and Pride are among those whose works are not subject to federal copyright protection.

When a musician records a song today, federal law grants a copyright in the “sound recording” itself — the captured version of the performance, separate and apart from the notes and lyrics. But thanks to an inexplicable gap in federal copyright law, the recordings by musical greats like John Coltrane, Aretha Franklin, Frank Sinatra and others before February 15, 1972 aren’t given the same copyright protections as their modern peers. In recent years, disputes have arisen as to what these rights should consist of — creating significant uncertainty for artists, record labels, and music distributors alike.

Under the current system, there is no way for a recording artist to be guaranteed payment in all 50 states. Instead, they are captive to a patchwork of inconsistent and ultimately unworkable state laws – denying them millions in royalties for their older songs. In its sweeping analysis of the issue, the U.S. Copyright Office argued that artists seeking compensation for their older songs are standing on murky legal footing because “state laws that relate to sound recordings are inconsistent, [and] the claims that can be brought under state law may be more limited than those that could be brought under federal copyright law.”

Leaving many of our generation’s most memorable performers out of the federal copyright system makes little sense. This glaring omission has been almost unilaterally derided, most poignantly, by the U.S. Copyright Office, which wrote in a recent report that “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.”

This unsettling reality has translated into real trouble for our most cherished artists.

SoundExchange, the group that collects and distributes digital performance royalties, estimated that the gap in copyright for pre-1972 recordings forced artists to lose out on more than $60 million in royalties in 2014 alone – a figure that swelled to more than $70 million in royalties in 2015, the latest year for which the figures are available.

Fortunately, the long-simmering question over whether and how to provide federal copyright protection to recordings made before Feb. 15, 1972 will get an answer.

In Congress, I introduced the Compensating Legacy Artists for their Songs, Service and Important Contributions to Society Act (CLASSICS) Act on a bipartisan basis in order to finally close this decades-old loophole by bringing these “pre-1972 classics” into the federal copyright system and ensure they are given the same protections afforded to their modern peers.

The legislation will ensure that digital music distributors will have the freedom to continue to spin these classic recordings, by the likes of the Beatles, Jimi Hendrix, and Janis Joplin, which make up about 15% of all songs streamed on digital radio services every day — and in certain genres, the number is even higher.

Under the new proposal, artists without a label will no longer need to litigate to collect royalties, and will automatically collect payments for the past three years through SoundExchange.

While the issue has long split the industry, the complicated patchwork of state laws has driven both sides of the music industry together to support the new legislative push. This is a big moment of consensus not just across party lines, but across all sides of the industry — Congress would be wise to take notice.

The time has come to finally treat these recordings like their newer peers. Let’s pass the CLASSICS Act and bring our outdated music licensing laws into the twenty-first century.

Congressman Darrell Issa (R-Calif.) is the Chairman of the House Judiciary Subcommittee for Courts, Intellectual Property and the Internet. He represents parts of Orange and San Diego Counties in Congress.

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