Larry Lessig takes a swipe at the Copyright Office for suggesting reform of 17 USC 115 if by reform you mean "eliminate" (The Register Wants Reform). More on the important proposal here: Forget Grokster? A Recording Industry Bombshell from the Copyright Office.
Lessig cites a discussion of the provision in 1967 House Judiciary Report:
[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.
Apparently the Registrer believes performers no longer "need unhampered access to musical material on nondiscriminatory terms." What progress.
I don't necessarily see the issue this way. While I'm still haven't come to any conclusions about the proposed reforms, I remain a critic of 17 USC 115 and would be happy to see it eliminated on general principles. And it's not because I'm against unhampered access to music. I'm all in favor. The question is how best to achieve this.
I believe that it would ultimately be easier to achieve through proper unification of rights and a voluntary collective license. I believe a voluntary collective license will be easier to acheive without the artificial split in rights created by Section 115. Heck, mandatory collective licensing would probably be easier to implement without 115.
It would simplify licensing issues for new technologies immensely. Under 115, unhampered access for artists comes at the expense of further hampering developers and users of new technologies, such as webcasting and, now, podcasting. One might frame the argument in favor of 115 reform as not one of hampering artists, but unhampering technological innovators.
Arguably, 115 has actually been harmful to creators on a whole. Not only has technological innovation suffered, but by taking the songwriters essentially out of the equation, the record labels have comparatively greater power as against the interests of the performing artists.
And, maybe, more musicians (and record labels) might favor less copyright if they didn't have such easy access to making covers. They might be a bit more sympathetic to other artists who don't have similar privileges and might want to clear rights for snippets of audio in a documentary, for example. I mean, why should record labels care about copyright reform? They've got their mandatory license and complete copyright control over the rest. They've got the best of both worlds. They get to copy what they want and stop people from copying their stuff.
There are a number of other benefits that would flow from elimination of 115. Copyright would be simpler, for one. We're all creators and publishers today. We shouldn't all have to be copyright lawyers as well. "You see, Suzy, there is a composition right and a recording right ..."
And, hey, I'll say it again. 17 USC 106(1), the right of reproduction, should just go away. Copying is such a 20th century concept. Copyright should be about distribution of information, not "copies." Section 115 essentially embeds the concept of "copies" in copyright. So we have these crazy arguments about whether a dual-pressed CDs, with two versions of a sound recording in two different formats counts as two "copies" or not. Copies, schmopies. Let's talk distribution, instead. Getting rid of 115 helps that, just a bit.