“I do believe that the intellectual property that you create is just that.  It’s property and you ought to be protected in the property that you create and that we all enjoy.”

Senator John Cornyn, U.S. Senate Committee on the Judiciary, May 15, 2018.

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”).¹ 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.²The 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….

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.

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