On May 23, without the benefit of any studies, hearings, or stakeholder input, Senator Wyden introduced the “Accessibility for Curators, Creators, Educators, Scholars, and Society to Recordings Act” (“ACCESS to Recordings Act”).1S. 2933. The bill would preempt the state and common law protections that sound recordings fixed before February 15, 1972 have always enjoyed and make them subject to federal copyright protection. In doing so, it suffers fatal Constitutional flaws.

The Fifth Amendment of the Constitution establishes that the federal government cannot take private property “for public use without just compensation,” a principle stretching back at least 800 years to the Magna Carta.2Horne v Department of Agriculture, 576 US ___ [at pg 5] (2015). The Takings Clause, as this provision is referred to, applies just as much to intellectual property, like copyright, as it does to other forms of private property.3Copyright and the Takings Clause; James v. Campbell, 104 U.S. 356, 358 (1882) (“[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.”); see also most recently Oil States Energy Services, LLC, v Greene’s Energy Group, LLC, 584 US ___ at 17 (2018) (noting decision “should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause”).

The US Copyright Office identified takings as one of the most prominent constitutional issues when it studied the federalization of pre-1972 sound recordings several years ago.4U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, Public meeting Tr. 06-03-2011 at 41 (June 3, 2011). Because federalization would entail preempting state law protection, the Office said in its final report, it “would deprive owners of vested interests currently held under state law and therefore could raise Fifth Amendment takings claims.”5U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings Report at 155 (2011). The Office explained that this shouldn’t be an issue if “the state law-based property right is replaced by a federal right of equal strength and duration.”6Id. But it does become an issue if the new federal term of protection is shorter than the existing state law term of protection.7Id.

This type of taking seems as clear a taking as the one the Supreme Court dealt with in 2015 in Horne v Department of Agriculture.8576 US __. Note that in holding that Takings Clause precedent establishing that direct appropriation of real property is a per se taking applies just as well to direct appropriation of personal property, the Court used as an example a case concerning the alleged appropriation of intellectual property—a patent—by the Government. In that case, which succeeded the Copyright Office’s analysis of the takings issue, the Court examined a Department of Agriculture regulation requiring raisin growers to give a percentage of their crop to the Government free of charge in order to maintain a stable market. It held that this regulation was a per se taking that required just compensation because “[a]ctual raisins are transferred from the growers to the Government” and thus the growers “lose the entire ‘bundle’ of property rights in the appropriated raisins.” Like the taking there, cutting off protection for sound recordings where they previously enjoyed protection under state law would cause sound recording owners to “lose the entire ‘bundle’ of property rights” in their recordings.

The CLASSICS Act, now part of the Music Modernization Act, which passed the House 415-0 and is currently in the Senate, addresses one of the more acute issues involving pre-1972 sound recordings—uncertainty surrounding the right of digital performance—through a tailored, consensus-based approach. In doing so, it avoids any takings issues by providing roughly the same right at the federal level that it preempts at the state level (albeit with more uniformity and certainty, improving things for recording artists and sound recording users). And sound recording owners would enjoy this right for at least as long as they would enjoy state protections for under current law.

Unlike the CLASSICS Act and the approach recommended by the Copyright Office, the ACCESS to Recordings Act falls far short of Constitutional requirements and would likely open the federal government up to liability for takings claims.

The bill would presumably give an owner of a pre-1972 sound recording the same general term as a post-1972 sound recording: 95 years from first publication or 120 years from the year of its creation—except, unlike the post-72 owner, the pre-72 owner would have not gotten the benefit of federal protection for that entire time, providing an unequal benefit. That also means many sound recordings would lose the property interests in their works that they currently enjoy until 2067 at some point before then. For sound recordings published between 1923 and 1930, the bill would only provide protection until December 31, 2025, and only then if the copyright owner takes affirmative steps—the bill would require that these copyright owners “engage[] in normal commercial exploitation through” that date and provide notice to the US Copyright Office that the work is subject to normal commercial exploitation. Under the ACCESS to Recordings Act, an entire class of sound recording owners would lose their “entire bundle of property rights” that they currently enjoy, without just compensation.

The serious Constitutional infirmity of the ACCESS to Recordings Act is just one of many problems with the bill, and isreflective of the bill’s lack of study and input. The Senate has the opportunity with the entire Music Modernization Act package, including the CLASSICS Act, to make significant and much needed improvements to music licensing provisions. Once these are in place, it can turn to consideration of the more challenging issues surrounding federalization of pre-72 sound recordings.

References   [ + ]

1. S. 2933.
2. Horne v Department of Agriculture, 576 US ___ [at pg 5] (2015).
3. Copyright and the Takings Clause; James v. Campbell, 104 U.S. 356, 358 (1882) (“[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.”); see also most recently Oil States Energy Services, LLC, v Greene’s Energy Group, LLC, 584 US ___ at 17 (2018) (noting decision “should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause”).
4. U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, Public meeting Tr. 06-03-2011 at 41 (June 3, 2011).
5. U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings Report at 155 (2011).
6. Id.
7. Id.
8. 576 US __. Note that in holding that Takings Clause precedent establishing that direct appropriation of real property is a per se taking applies just as well to direct appropriation of personal property, the Court used as an example a case concerning the alleged appropriation of intellectual property—a patent—by the Government.