u n i t e d s t a t e s c o p y r i g h t o f f i c e
Federal Copyright Protection for
Pre-1972 Sound Recordings
a report of the register of copyrights december 2011
House Appropriations Committee Print, Omnibus Appropriations Act, 2009
(H.R. 1105; Public Law 111–8)
DIVISION G—LEGISLATIVE BRANCH APPROPRIATIONS ACT, 2009, at 1769
Pre-1972 Sound Recordings.--The Register of Copyrights is directed to conduct a study on the
desirability of and means for bringing sound recordings fixed before February 15, 1972, under
federal jurisdiction. The study is to cover the effect of federal coverage on the preservation of
such sound recordings, the effect on public access to those recordings, and the economic impact
of federal coverage on rights holders. The study is also to examine the means for accomplishing
such coverage. As part of this effort, the Register of Copyrights should publish notice of the study
and provide a period during which interested persons may submit comments. The Register of
Copyrights is to submit a report on the results of this study to the Committees on Appropriations
of the House and Senate no later than two years after the enactment of this Act. The report should
include any recommendations that the Register considers appropriate.
Library of Congress Cataloging-in-Publication Data
Library of Congress. Copyright Office.
Federal copyright protection for pre-1972 sound recordings : a report of the Register of
Copyrights.
pages ; cm
"December 2011."
Includes bibliographical references.
1. Copyright--Sound recordings--United States. 2. Sound recordings--Preservation. I.
Title.
KF2996.L525 2011
346.7304'82--dc23
2011285308
All photographs appearing throughout this Report are courtesy of the Library of Congress
Packard Campus for Audio Visual Conservation.
December 28, 201
1
Dear Mr. Pre
s
ident:
On
behalf of the United States Copy
right Office, I am pleased to deliver this Report to
Congress, as required in the Explanatory Statement to the Omnibus Appropriations Act of 2009.
See Public Law No. 111-8, 123 Stat. 524 (2010), at p. 1769.
As directed by Congress, the Report considers the desirability of and means for bringing
sound recordings fixed before February 15, 1972, under federal jurisdiction, with consideration
given to the effect of federal coverage on the preservation of such sound recordings, the effect on
public access to those recordings, and the economic impact of federal coverage on rights holders.
It also examines the means for accomplishing such coverage. Under current law, sound
recordings fixed on or after February 15, 1972 are protected under federal copyright law, but
recordings fixed before that date are protected by a patchwork of state statutory and common law.
The Report recommends that federal copyright protection should apply to sound
recordings fixed before February 15, 1972. It proposes special provisions to address issues such
as copyright ownership, term of protection, termination of transfers and copyright registration.
In reaching the recommendations contained in the Report, the Copyright Office engaged
with many stakeholders, including representatives of libraries and archives, the recording
industry, performers and musicians, the broadcast, cable and satellite industries, and other
interested parties.
The Report is also available on the Copyright Office website at
http://www.copyright.gov/docs/sound/
.
Respectfully,
Maria A. Pall
ante
Register of C
o
py
rights
Enclosure
The Honorabl
e Joseph Biden
President
United States Senate
Washington, DC 20510
Dear Speaker
Boehner:
On behalf of the United States Copy
right Office, I a
m
pleased
to deliver this Report to
Congress, as
required in the Explanator
y Statement to the Omnibus Appropriations Act of 2009.
See Public Law No. 111-8, 123 Stat. 524 (2010), at p. 1769.
As directed by Congress, the Report considers the desirability of and means for bringing
sound recordings fixed before February 15, 1972, under federal jurisdiction, with consideration
given to the effect of federal coverage on the preservation of such sound recordings, the effect on
public access to those recordings, and the economic impact of federal coverage on rights holders.
It also examines the means for accomplishing such coverage. Under current law, sound
recordings fixed on or after February 15, 1972 are protected under federal copyright law, but
recordings fixed before that date are protected by a patchwork of state statutory and common law.
The Report recommends that federal copyright protection should apply to sound
recordings fixed before February 15, 1972. It proposes special provisions to address issues such
as copyright ownership, term of protection, termination of transfers and copyright registration.
In reaching the recommendations contained in the Report, the Copyright Office engaged
with many stakeholders, including representatives of libraries and archives, the recording
industry, performers and musicians, the broadcast, cable and satellite industries, and other
interested parties.
The Report is also available on the Copyright Office website at
http://www.copyright.gov/docs/sound/
.
Respectfully,
Maria A. Pall
ante
Register of Copyrights
Enclosure
The Honorable John Boehne
r
Speaker of the House
of Representatives
Washington, DC 20515
December 28, 2011
ACKNOWLEDGMENTS
This Report was prepared under the auspices of the Office of General Counsel, U.S. Copyright Office, with
support from the Office of Policy and International Affairs. It is the result of the sustained commitment and
professional expertise of several people in these departments, especially David Carson, General Counsel, Chris
Weston, Attorney-Advisor, and Steve Ruwe, Attorney-Advisor.
Special thanks go to June Besek, Executive Director of the Kernochan Center for Law, Media and the Arts
at Columbia University School of Law. June, who has done extensive work on copyright and pre-1972 sound
recordings in the past, played a leading role on our team, providing valuable insights and background information
at the outset of the study and actively participating in the Office’s work throughout the study, including at the
roundtable conducted in June 2011. She drafted significant sections of the Report and reviewed numerous drafts
of the final Report.
June, Chris and Steve were the principal authors of the Report. David oversaw the entire process and
the preparation of the Report, actively assisted by Chris. Associate Register for Policy and International Affairs
Michele Woods and Deputy General Counsel Tanya Sandros played invaluable roles in providing substantive
and editorial comments on the Report.
Senior Counsel for Policy and International Affairs Karyn Temple
Claggett also offered editorial input and
was an active participant at the roun
dtable. Attorney-Advisor Erik
Bertin reviewed and proofread the final draft. Christopher Reed, Senior Adviso
r to the Register, provided both
policy
and production assistance. Many thanks to legal interns Jenni Wiser and Em
ily Zandy for their research
efforts in reviewing and updating the surv
ey of state criminal antipiracy statutes.
Finally, I would like to recognize David Christopher and his staff in the Information and Records
Division of the Copyright Office, including George Thuronyi, Helen Hester-Ossa, Teresa McCall and Cecelia
Rogers, for their assistance in producing the Report.
Maria A. Pallante
Register of Copyrights
TABLE OF CONTENTS
ABBREVIATIONS………………………………………………………………………………. v
EXECUTIVE SUMMARY……………………………………………………………………...vii
CHA
PTER
I: INTRODUCTION AND BACKGROUND…………………………………….. 1
A. The Pre-1972 Sound Recordings Report ……………………………………………..2
B. The Pre-1972 Sound Recordings Issue ……………………………………………… 4
CHAPTER II: LEGAL AND LEGISLATIVE HISTORY……………………………………. 7
A. Federal Copyright Law and Sound Recordings until 1972 ………………………….. 7
B. 1971 Sound Recording Amendment ……………………………………………….. 10
C. 1976 Copyright Revision Act ……………………………………………………….13
D. 1994 Uruguay Round Agreements Act ………………………………...................... 17
E. State Law Protection for Pre-1972 Sound Recordings ……………………………...20
1. Criminal Record Piracy Statutes ………………………………………………..20
a. Examples of state criminal law statutes………………………………………21
b. Summary of state criminal record piracy provisions…………………………25
2. Civil Statutes ……………………………………………………………………28
3. Non-Statutory Causes of Action ………………………………………………..30
a. Common-law copyright ………………………………………………………30
b. Unfair competition/misappropriation ………………………………………..35
c. Conversion …………………………………………………………………... 40
4. Right of Publicity ……………………………………………………………….41
5. Variations among States with Respect to Civil Claims: Rights and Exceptions..43
6. Availability of Punitive Damages for State Law Claims ……………………….46
7. Summary: Use of Pre-1972 Sound Recordings under State Law ………………47
CHAPTER III: APPRECIATING THE CHALLENGES OF PRESERVATION
AND ACCESS.................................................................................................................50
A. The Nature Of Pre-1972 Sound Recordings ..............................................................50
1. Commercial and Noncommercial Recordings ........................................................50
2. Published and Unpublished Works.........................................................................52
3. Availability and Location ......................................................................................54
4. Recording Media and Deterioration Rates for Pre-1972 Sound Recordings ..........56
B. Preservation of Pre-1972 Sound Recordings ...............................................................59
1. Current Preservation Activities ..............................................................................60
a. Libraries and archives .....................................................................................60
b. Record companies ............................................................................................62
c. Private collectors..............................................................................................63
d. Radio stations ..................................................................................................64
2. Preservation and the Law .......................................................................................64
a. Federal Law .....................................................................................................65
b. State Law..........................................................................................................68
c. Risk Analysis.....................................................................................................69
C. Public Access to Pre-1972 Sound Recordings ...........................................................70
1. Current Activities Providing Public Access ...........................................................72
a. Libraries and Archives ....................................................................................
72
b. Record Companies … ......................................................................................74
c. Private Collectors ............................................................................................75
d. Radio Stations .................................................................................................75
2. Provision of Public Access and the Law ................................................................75
a. Federal Law .....................................................................................................77
b. State Law .........................................................................................................79
c. Risk Analysis ....................................................................................................79
CHAPTER IV: POLICY CONSIDERATIONS ......................................................................81
A. Certainty and Consistency in Copyright Law ............................................................82
1. Importance of Certainty and Consistency ............................................................82
2. The Impact of Federalization upon Certainty and Consistency in Copyright
Law.......................................................................................................................85
a. Users’ perspectives on the effect of a single set of federal exceptions.............85
b. Right holders’ perspectives on the move from state to federal law..................87
c. Application of the DMCA “Safe Harbor” of 17 U.S.C. § 512 ........................89
B. Preservation ...............................................................................................................90
1. Importance of Preservation .................................................................................90
2. Impact of Federalization upon Library and Archives Preservation Activities .....91
a. Likelihood of increased preservation ..............................................................91
b. Likelihood of decreased preservation, or no change in preservation
activities ........................................................................................................93
C. Public Access .............................................................................................................95
1. Importance of Public Access................................................................................95
2. Impact of Federalization upon Library and Archives Public Access Activities...97
a. Types of access expected..................................................................................97
b. Likelihood of increased public access..............................................................97
c. Likelihood of decreased public access ...........................................................100
D. Economic Impact on Right Holders .......................................................................100
1. Value of Pre-1972 Sound Recordings ...............................................................101
a. Benefits and disadvantages of federal protection ..........................................102
b. Effect of exclusive rights ................................................................................103
c. “Long tail” effect on commercial prospects of older recordings ..................104
2. Settled Expectations in Business Transactions ..................................................105
a. Existing contractual arrangements ...............................................................106
b. Ownership, including transfer, termination, and registration .......................107
c. Potential for decrease in availability of pre-1972 sound recordings as a
result of business burdens ...........................................................................111
E. Alternatives To Federalization .................................................................................111
1. Partial Federalization (e.g., only applying Sections 107, 108 and/or 114) ........112
a. Sections 107 and 108.....................................................................................112
b. Section 114...............................…………………………………………… 113
2. Limits on Remedies ...........................................................................................115
3. No Amendments to Federal Law, but Amendments to State Law Instead.........116
4.
No Amend
ments to Federal Law, but Use Private Agreements Instead ...........118
CHAPTER V: DESIRABILITY OF FEDERALIZATION ..................................................120
A. Certainty and Consistency in Copyright Law ..........................................................122
B. Promotion of Preservation and Appropriate Public Access .....................................124
C. Avoiding Economic Harm to Right Holders ............................................................126
D. Appropriate Application of Section 114 License and the “Safe Harbors” of
17 U.S.C. § 512 and the Communications Decency Act ..........................................128
1. Section 114 .........................................................................................................129
ii
2. Section 512 ........................................................................................................130
3. Application of the Communications Decency Act ............................................133
E. Alternatives to Federal Protection ...........................................................................135
CHAPTER VI: MEANS OF BRINGING PRE-1972 SOUND RECORDINGS
UNDER FEDERAL JURISDICTION.........................................................................139
A. Ownership ................................................................................................................139
1. Determining Ownership ....................................................................................140
a. State vs. federal ownership rules ...................................................................141
b. Effect of rule in some states equating physical ownership of master with
ownership of all rights....................................................................................146
c. Termination.....................................................................................................146
2. Recommendation................................................................................................147
B. Term of Protection ....................................................................................................149
1. Current and Proposed Terms of Protection ........................................................150
a. 50 years from publication...............................................................................151
b. 50 years from fixation.....................................................................................152
c. 95 years from creation ...................................................................................153
d. Expiration in 2067 .........................................................................................153
e. Other alternatives...........................................................................................154
2. Fifth Amendment Takings Claims .....................................................................155
a. Facial takings ................................................................................................156
b. As-applied takings .........................................................................................157
3. Recommendation................................................................................................162
C. Transition Period........................................................................................................167
1. Length of Transition Period ...............................................................................167
2. What Constitutes “Publicly Available” and “Notice Filed in the Office”..........168
3. Recommendation ...............................................................................................169
D. Registration.. ………………………………………………………………………171
1. Stakeholder Concerns about Registration...........................................................171
2. Recommendation ...............................................................................................173
CHAPTER VII: RECOMMENDATIONS .............................................................................175
APPENDIX A: NOTICE OF INQUIRY
APPENDIX B: NOTICE OF INQUIRY – EXTENSION OF DEADLINE
APPENDIX C: NOTICE OF PUBLIC MEETING
APPENDIX D: COMMENTERS
APPENDIX E: REPLY COMMENTERS
APPENDIX F: PUBLIC MEETING PARTICIPANTS
iii
iv
v
ABBREVIATIONS
A2IM American Association of Independent Music
ALA American Library Association
ARL Association of Research Libraries
ARSC Association of Recorded Sound Collections
CDA Communications Decency Act
EFF Electronic Frontier Foundation
FMC Future of Music Coalition
LOC Library of Congress
MLA Music Library Association
NAB National Association of Broadcasters
NMPA National Music Publishers Association
NRPB National Recording Preservation Board
RIAA Recording Industry Association of America
SAM Society of American Music
SAA Society of American Archivists
TRIPS Trade-Related Aspects of Intellectual Property Rights
URAA Uruguay Round Agreements Act
WTO World Trade Organization
vi
United States Copyright Office PRE-1972 SOUND RECORDINGS
vii
Wax cylinder
EXECUTIVE SUMMARY
In the Om
nibus Appropriations Act of 2009, Congress instructed the Register of
Copyrights (hereinafter “Copyright Office” or “Office”) to conduct a study on the “desirability
and means” of extending federal copyright protection to sound recordings fixed before February
15, 1972 (“pre-1972 sound recordings”). Congress directed the Office to discuss several major
points in the study, including: (1) the effect that federal protection would have with respect to the
preservation of pre-1972 sound recordings; (2) the effect that federal protection would have with
respect to providing public access to the recordings; and (3) the impact that federal protection
would have on the economic interests of right holders of the recordings. Congress also requested
“any recommendations that the Register considers appropriate.”
Although sound recordings were brought within the scope of federal copyright protection
beginning in 1972, protection of pre-1972 sound recordings remains governed by a patchwork of
state statutory and common law. States are permitted to continue protection for pre-1972 sound
recordings until 2067, at which time all state protection will be preempted by federal law and pre-
1972 sound recordings will enter the public domain.
United States Copyright Office PRE-1972 SOUND RECORDINGS
viii
The Copyright Office enjoyed significant input from stakeholders in the course of
preparing this report. The Office solicited written comments and reply comments on a panoply of
questions, including the current state of preservation and public availability, value in the
marketplace, the Constitutional implications of federal protection, and the best methods to avoid
harming the legitimate interests of right holders. The Office also held a two-day public
roundtable for representatives of libraries and archives, the recording industry, performers,
broadcasters and satellite radio, and other interested parties.
Among the conclusions of the Copyright Office is that the goals served by federalizing
common law copyright for other types of works in 1976 would be served by bringing pre-1972
sound recordings into the federal statutory scheme as well. Indeed, 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. The Copyright Office also concludes that federalization would
best serve the interest of libraries, archives and others in preserving old sound recordings and in
increasing the availability to the public of old sound recordings. While many librarians and
archivists are dissatisfied with the scope of the federal statutory privileges enjoyed by libraries
and archives, these exceptions and limitations (sections 107 and 108 in particular) provide more
certainty and, in general, more opportunity than state laws to preserve and make available sound
recordings from many decades past. Moreover, pre-1972 sound recordings would enjoy the
benefit of any future statutory amendments to exceptions and limitations in the Copyright Act,
including updates to section 108 or orphan works legislation.
The principal objection offered by record companies – that federalizing protection for
pre-1972 sound recordings would cast a cloud over existing ownership of rights in those
recordings – is not insurmountable. Congress can address it by expressly providing that the
ownership of copyright in the sound recording shall vest in the person who owned the rights
under state law just prior to the enactment of the federal statute. Other concerns can also be
resolved.
United States Copyright Office PRE-1972 SOUND RECORDINGS
ix
Here are the key points and legislative recommendations in the Report:
The Copyright Office recommends that federal copyright protection should apply to
sound recordings fixed before February 15, 1972, with special provisions to address
ownership issues, term of protection, and registration. This will improve the certainty
and consistency of copyright law, will likely encourage more preservation and access
activities, and should not result in any appreciable harm to the economic interests of right
holders.
Federal copyright protection for pre-1972 sound recordings means that all of the rights
and limitations of Title 17 of the U.S. Code applicable to post-1972 sound recordings
would apply, including section 106(6) (public performance right for digital audio
transmissions), section 107 (fair use), section 108 (certain reproduction and distribution
by libraries and archives), section 110 (exemption for certain performances and displays),
section 111 (statutory license for cable retransmissions of primary transmissions), section
112 (ephemeral recordings by broadcasters and transmitting organizations), section 114
(statutory license for certain transmissions and exemptions for certain other
transmissions), section 512 (safe harbor for Internet service providers), Chapter 10
(digital audio recording devices), and Chapter 12 (copyright protection and management
systems), as well as any future applicable rights and limitations (e.g., orphan works) that
Congress may choose to enact.
The initial owner(s) of the federal copyright in a pre-1972 sound recording should be the
person(s) who own(s) the copyright under applicable state law at the moment before the
legislation federalizing protection goes into effect.
Section 203 of the Copyright Act should be amended to provide that authors of pre-1972
sound recordings are entitled to terminate grants of transfers or licenses of copyright that
are made on or after the date federal protection commences. However, termination of
pre-federalization grants made under state law prior to federalization presents serious
issues with respect to retroactivity and takings, so the Office does not recommend
providing termination rights for grants made prior to federalization of protection.
The term of protection for sound recordings fixed prior to February 15, 1972, should be
95 years from publication (with “publication” as defined in section 101) or, if the work
had not been published prior to the effective date of legislation federalizing protection,
120 years from fixation. However,
o In no case would protection continue past February 15, 2067, and
o In cases where the foregoing terms would expire before 2067, a right holder may
take the action described below to obtain a longer term.
For pre-1972 sound recordings other than those published before 1923, a transition period
lasting between six and ten years from enactment of federal protection should be
established, during which a right holder may make a pre-1972 sound recording available
to the public and file a notice with the Copyright Office confirming availability at a
reasonable price and stating the owner’s intent to secure protection until 2067. If a right
holder does this, the term of protection of the sound recording will not expire until 2067,
United States Copyright Office PRE-1972 SOUND RECORDINGS
x
provided that the recording remains publicly available at a reasonable price during its
extended term of protection.
For sound recordings published before 1923, a transition period lasting three years from
enactment of federal protection should be established, during which a right holder may
make a pre-1923 sound recording available to the public and file a notice with the
Copyright Office confirming availability at a reasonable price and stating the owner’s
intent to secure protection for 25 years after the date of enactment the legislation that
federalizes protection. If a right holder does this, the term of protection of the sound
recording will not expire until the end of the 25-year period, provided that the recording
remains publicly available at a reasonable price during its extended term of protection.
Regardless of a right holder’s actions, all pre-1972 sound recordings should enjoy federal
protection at least until the end of the relevant transition period described above.
Regarding the requirement of timely registration in order to recover statutory damages or
attorney’s fees in an infringement suit, a transitional period of between three and five
years should be established, during which right holders in pre-1972 sound recordings can
seek statutory damages and attorney’s fees notwithstanding the lack of registration prior
to filing suit.
Adjustments should be made or at least considered with respect to certain other
provisions of the Copyright Act to take into account difficulties that owners of rights in
pre-1972 sound recordings may encounter. Among those provisions are: section 405
(notice of copyright: omission of notice on certain copies and phonorecords), section 406
(notice of copyright: error in name or date on certain copies and phonorecords), section
407 (deposit of copies or phonorecords for Library of Congress), section 410 (prima facie
weight of certificate of registration), and section 205 (regarding priority between
conflicting transfers recorded in the Copyright Office).
United States Copyright Office PRE-1972 SOUND RECORDINGS
1
78 rpm shellac disc
I. INTRODUCTION AND BACKGROUND
A. The Pre-1972 Sound Recordings Report
In 2009, Congress directed the Register of Copyrights to conduct a study on the
desirability of and means for bringing sound recordings fixed before February 15, 1972 under
federal jurisdiction. Specifically,
The study is to cover the effect of federal coverage on the preservation of such
sound recordings, the effect on public access to those recordings, and the
economic impact of federal coverage on rights holders. The study is also to
examine the means for accomplishing such coverage. As part of this effort, the
Register of Copyrights should publish notice of the study and provide a period
during which interested persons may submit comments. The Register of
Copyrights is to submit a report on the results of this study to the Committees on
Appropriations of the House and Senate no later than two years after the
enactment of this Act. The report should include any recommendations that the
Register considers appropriate.
1
1
See 155 CONG. REC. H2397 (daily ed. Feb. 23, 2009) (statement of Rep. Obey, Chairman of the House
Committee on Appropriations, regarding H.R. 1105, Omnibus Appropriations Act of 2009). The deadline
was extended from March 11, 2011 to December 31, 2011 at the request of the Copyright Office.
United States Copyright Office PRE-1972 SOUND RECORDINGS
2
After internal study of the issue, in 2010 the Copyright Office issued a Notice of Inquiry
2
describing the issues to be addressed in the study and inviting the public to submit written
comments on relevant questions such as (1) whether libraries currently treat pre-1972
3
sound
recordings differently from federally copyrighted sound recordings for purposes of preservation
and access; (2) whether federalizing protection would improve their ability to preserve and
provide access to such recordings; and (3) the likely effects on the commercial value of those
recordings, including on the scope of rights, the certainty and enforceability of protection,
ownership of rights, and the term of protection The deadline for initial comments was originally
set for December 20, 2010, but was subsequently extended at the request of interested parties
until January 31, 2011.
4
Reply comments were due on April 13, 2011.
5
The Office received 59 initial comments
6
and 17 reply comments.
7
The comments
represented organizations and individuals with diverse perspectives and experiences, including:
● Sound recording libraries and organizations (e.g., Association of Recorded
Sound Collections, Music Library Association, Society for American Music)
● Other libraries, archives and library and archives associations (e.g., Library
of Congress, American Library Association, Association of Research Libraries,
Society of American Archivists)
2
75 Fed. Reg. 67,777 (Nov. 3, 2010). Federal Register notices published by the Copyright Office during
this study are included as Appendices A-C.
3
As used in this report, “pre-1972” means before February 15, 1972, when sound recordings first became
eligible for federal copyright protection.
4
75 Fed. Reg. 74,749 (Dec. 1, 2010).
5
Originally the period for reply comments was set at 30 days, but that deadline too was extended at the
request of the parties. See Appendix B; 76 Fed. Reg. 10,405 (Feb. 24, 2011).
6
One of the comments, #57, groups together 231 copies of a form letter originated by Grooveshark. The
form letter is available on Grooveshark’s website at http://blog.grooveshark.com/post/2519052858/help-
grooveshark-stay-alive (last checked Dec. 1, 2011).
7
Both the initial comments and the reply comments have been posted to the Copyright Office’s website
and are available at http://www.copyright.gov/docs/sound/
. Lists of commenters are attached as
Appendices D and E.
United States Copyright Office PRE-1972 SOUND RECORDINGS
3
● Recording industry associations (e.g., American Association of Independent
Music, Recording Industry Association of America)
● Broadcasters and satellite radio (e.g., National Association of Broadcasters,
Sirius XM)
● Music publishers (e.g., National Music Publishers Association)
● Songwriters and musicians organizations (e.g., Songwriters Guild of America,
Future of Music Coalition)
● Universities and academic institutions (e.g., University of Louisville, Syracuse
University, Tulane University Law School, University of Utah Library)
● Other organizations concerned about the legal treatment of pre-1972 sound
recordings (e.g., Electronic Frontier Foundation, Starr-Gennett Foundation,
Sound Exchange, Inc.)
● Numerous individuals
The Copyright Office also organized a two-day public meeting in Washington, D.C. on
June 2 and 3, 2011, attended by 19 representatives of 13 organizations, as well as two individuals.
These participants included representatives of all of the categories of commenters, and most of
the organizations, listed above. (See Appendix F.) The Office subsequently met with several
organizations and individuals to further explore some of the issues raised in the comments and in
the meetings.
In the course of its research, the Office consulted a number of reports commissioned or
sponsored by the National Recording Preservation Board, all published between 2005 and 2010.
8
8
Rob Bamberger and Sam Brylawski, Nat’l Recording Preservation Board of the Library of Congress, THE
STATE OF RECORDED SOUND PRESERVATION IN THE UNITED STATES: A NATIONAL LEGACY AT RISK IN THE
DIGITAL AGE 1 (2010) [hereinafter NRPB REPORT]; June M. Besek, COPYRIGHT ISSUES RELEVANT TO
DIGITAL PRESERVATION AND DISSEMINATION OF PRE-1972 COMMERCIAL SOUND RECORDINGS BY
LIBRARIES AND ARCHIVES (CLIR & Library of Congress 2005) [hereinafter, BESEK COMMERCIAL SOUND
RECORDINGS STUDY]; June M. Besek, COPYRIGHT AND RELATED ISSUES RELEVANT TO DIGITAL
PRESERVATION AND DISSEMINATION OF UNPUBLISHED PRE-1972 SOUND RECORDINGS BY LIBRARIES AND
ARCHIVES (CLIR & Library of Congress 2009) [hereinafter, BESEK UNPUBLISHED SOUND RECORDINGS
STUDY]; Tim Brooks, SURVEY OF REISSUES OF U.S. RECORDINGS (CLIR & Library of Congress 2005)
[hereinafter,
BROOKS STUDY]; Program on Information Justice and Intellectual Property, Washington
College of Law, American University (under the supervision of Peter Jaszi with the assistance of Nick
Lewis), P
ROTECTION FOR PRE-1972 SOUND RECORDINGS UNDER STATE LAW AND ITS IMPACT ON USE BY
United States Copyright Office PRE-1972 SOUND RECORDINGS
4
This Report is the result of the Copyright Office’s research and public outreach
concerning the legal treatment of pre-1972 sound recordings. The Report (1) explains the process
by which the Office undertook its research; (2) describes the comments received as well as the
views expressed at the public meetings; and (3) explain the Office’s recommendations and the
reasons for them.
9
B. The Pre-1972 Sound Recordings Issue
The body of pre-1972 sound recordings is vast. Commercially released “popular”
recordings come most readily to mind – from Frank Sinatra and Ella Fitzgerald to the Beatles and
the Rolling Stones. But pre-1972 commercial recordings encompass a wide range of genres:
ragtime and jazz, rhythm and blues, gospel, country and folk music, classical recordings, spoken
word recordings and many others.
10
Some remain popular; others have long since faded from
memory and are of interest only to scholars. There are, in addition, many unpublished recordings
such as journalists’ tapes, oral histories, and ethnographic and folklore recordings. There are also
recordings of old radio broadcasts, which were publicly disseminated by virtue of the broadcast,
but in many cases are technically unpublished under the standards of the U.S. Copyright Act.
These recordings are a rich aspect of this country’s cultural heritage, and it is important to ensure
that they will be preserved and accessible for researchers and scholars, as well as to future
generations.
NONPROFIT INSTITUTIONS: A 10-STATE ANALYSIS (CLIR & Library of Congress 2009) [hereinafter, JASZI
STUDY].
9
In citing to the comments and the transcript of the public meeting, this Report follows the following
conventions: For an initial comment, the institutional or individual author followed by the page number
(e.g., Society of American Archivists (SAA) at 10); for a reply comment, the same structure but with the
word “Reply” (e.g., SAA Reply at 6); for a citation to the public meeting transcript, the speaker, the letter
T, a number indicating the first or second day, and the page number (e.g., Schwartz T1 at 78).
10
See generally BROOKS STUDY.
United States Copyright Office PRE-1972 SOUND RECORDINGS
5
Congress brought sound recordings within the scope of federal copyright law for the first
time on February 15, 1972. It provided protection on a prospective basis, leaving recordings first
fixed before that date under the protection of state law. The issue was revisited during enactment
of the 1976 Copyright Act, when Congress federalized protection for works that had been
protected by state rather than federal copyright law but preserved the state law regime for pre-
1972 sound recordings.
11
But Congress did provide some limitations on state law protection for
sound recordings: the Copyright Act provides that states are entitled to protect pre-1972 sound
recordings until February 15, 2067.
12
At that point, all pre-1972 sound recordings, no matter how
old, will enter the public domain in one fell swoop and the dual regimes of protection for sound
recordings will disappear.
As a consequence of this legal construct, there is virtually no public domain in the United
States for sound recordings and a 55 year wait before this will change.
13
To put this in
perspective, one need only compare the rules of copyright term for other works. For example, a
musical composition published in 1922 would have entered the public domain at the end of 1997,
but a sound recording of that same musical composition that was fixed the same year will remain
protected for another 70 years, until 2067. In fact, sound recordings first fixed in 1922 will enter
the public domain the same year as those first fixed between February 15 and December 31, 1972
11
Until the effective date of the 1976 Copyright Act, unpublished works were protected by state common
law copyright, which lasted until a work was published. As discussed below, state law (including common
law copyright as well as other common law doctrines and statutes) also protected sound recordings,
whether or not they were published. See infra Chapter II.E.
12
See 17 U.S.C. § 301(c); see also Capitol Records, Inc. v. Naxos of America, Inc., 830 N.E.2d 250 (N.Y.
2005), discussed below.
13
A few individual states have explicitly set shorter terms of protection (see infra Chapter II.E.2), but no
pre-1972 sound recordings are in the public domain throughout the United States unless they were
published between February 15, 1972 and March 1, 1989 without notice and without mitigating
circumstances, or unless their right holders have dedicated them to the public domain.
United States Copyright Office PRE-1972 SOUND RECORDINGS
6
(the first year they were eligible for federal protection). In each case, they will not enter the
public domain until the end of 2067.
14
To be clear, it is misleading to speak of state law as a single regime of protection. More
accurately, it consists of multiple regimes of protection, sometimes vague and inconsistent, with
the scope of rights and of permissible activities often difficult to discern. This patchwork of state
protection has frustrated many libraries, archives and educational institutions, which are unclear
at best whether they are legally permitted to preserve pre-1972 sound recordings, or provide
access to them for researchers and scholars – at least to the same degree as later recordings.
15
14
To make matters more complicated, it is not always clear which of the two regimes of protection for
sound recordings, state or federal (or both), is applicable because, due to copyright restoration in certain
circumstances, there are some recordings fixed prior to February 15, 1972 that have federal law protection
as well. Foreign sound recordings whose copyrights were “restored” under the Uruguay Round
Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4973 (1994) may begin to enter the public domain
only at the end of 2041. See infra Chapter II.D.
15
See NRPB REPORT at 131.
United States Copyright Office PRE-1972 SOUND RECORDINGS
7
Lacquer recorder
II. LEGAL AND LEGISLATIVE HISTORY
A. Federal Copyright Law and Sound Recordings until 1972
Sound recordings as defined under federal copyright law are “works that result from the
fixation of a series of musical, spoken, or other sounds, . . . regardless of the nature of the
material objects, such as disks, tapes or other phonorecords, in which they are embodied.”
16
Although sound recordings have existed since the mid-nineteenth century,
17
no federal copyright
protection was available to them until 1972.
18
As early as 1906, during the revision process that led to the 1909 Copyright Act,
representatives of the then-leading record company, Victor Talking Machine Co., urged Congress
16
17 U.S.C. § 101. The full definition of sound recordings is: “works that result from the fixation of a
series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or
other audiovisual work, regardless of the nature of the material objects, such as disks, tapes or other
phonorecords, in which they are embodied.” Id.
17
According to the NRPB Report, the earliest identifiable sound recording was made in 1860, and the
phonograph was invented in 1877. NRPB
REPORT at 1, 133.
18
For a thorough and insightful analysis of the legal status of sound recordings in the United States until
1957, see Barbara A. Ringer, C
OPYRIGHT LAW REVISION, STUDY NO. 26: THE UNAUTHORIZED
DUPLICATION OF SOUND RECORDINGS, at 21-37 (Feb. 1957) [hereinafter, Ringer], available at
http://www.copyright.gov/history/studies/study26.pdf
.
United States Copyright Office PRE-1972 SOUND RECORDINGS
8
to grant federal copyright protection to sound recordings.
19
They were unsuccessful in getting
such a provision into any of the revision bills introduced from 1906 to 1908. But in 1908, the
Supreme Court decided White-Smith v. Apollo,
20
holding that a piano roll was not a “copy” of the
musical composition embodied in it because the composition could not be “read” from the roll
with the naked eye. Therefore, according to the Court, the defendant did not infringe the musical
composition in creating and reproducing the roll. Record companies apparently realized the
inconsistency between the holding in White-Smith and their proposal to grant copyright protection
for sound recordings (for which mechanical reproductions were the only means of fixation), and
they abandoned that proposal.
21
The 1909 Copyright Act, passed the following year, granted copyright owners of musical
compositions rights with respect to mechanical reproductions of their compositions, for example,
in records or piano rolls. Congress was concerned, however, that if musical composition owners
had exclusive rights, record companies might be able to buy up the rights and monopolize the
market with respect to particular musical compositions, so the mechanical right was made subject
to a compulsory license. Once a music copyright owner authorized a mechanical reproduction of
his composition, others could take advantage of the license to make their own mechanical
reproductions, provided that they met the statutory requirements and paid the statutory rate.
22
While the 1909 Act provided protection for copyright holders of musical compositions
whose works were reproduced in sound recordings, it included no explicit protection for sound
recordings per se. As a result, over the subsequent decades the courts and the Copyright Office
19
See Ringer at 3.
20
White-Smith Publ’g. Co. v. Apollo Co., 209 U.S. 1 (1908), superseded by statute, Copyright Act of
1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976).
21
Ringer at 4.
22
An Act to Amend and Consolidate the Acts Respecting Copyright, Pub. L. No. 60-349, 35 Stat. 1075,
§ 1(e) (1909).
United States Copyright Office PRE-1972 SOUND RECORDINGS
9
consistently refused to recognize copyright in sound recordings.
23
By the 1940s and 1950s,
respected commentators, including Professor Zechariah Chafee
24
and Judge Learned Hand,
25
had
expressed the opinion that there was no constitutional obstacle to protecting a sound recording as
the writing of an author, even though its fixation may be unintelligible to the naked eye. They
were in agreement, however, that the current law did not provide such protection.
In the absence of federal protection, states provided protection against duplication of
sound recordings under common law theories, usually unfair competition or common law
copyright, as discussed below.
The first bill to explicitly provide federal copyright protection for sound recordings was
introduced in Congress in 1925,
26
and copyright revision bills that would have extended copyright
protection to sound recordings (with varying restrictions) were introduced regularly thereafter
through 1951.
27
In all, more than thirty bills to provide sound recordings with some form of
copyright protection were introduced during this period, but none passed.
28
In a Copyright Office
study published in 1957, Barbara Ringer (who later became Register of Copyrights) observed that
the opposition to these bills was based on technical deficiencies and concerns about their
constitutionality (both as to whether sound recordings were creative, and whether they were
23
See, e.g., Aeolian Co. v. Royal Music Roll Co., 196 F. 926, 927 (W.D.N.Y. 1912) (“music rolls or
records are not strictly matters of copyright”). The Court’s holding in White-Smith Publ’g. Co. v. Apollo –
that a piano roll did not qualify as a copy of the musical composition embodied in it – was adopted in the
1909 Act not only with respect to whether a reproduction was an infringement, but also with respect to
whether a reproduction met the fixation requirement. Melville B & David Nimmer, N
IMMER ON
COPYRIGHT, § 2.03[B][1] (2011) at 2-32 to -33 [hereinafter NIMMER ON COPYRIGHT].
24
Zechariah Chafee, Reflections on the Law of Copyright, 45 COLUM. L. REV. 719, 735 (1945).
25
Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657, 664 (2d Cir. 1955) (Hand, J. dissenting).
The panel agreed that the Constitution permitted Congress to protect sound recordings and that it had
chosen not to provide such protection, but Judge Hand dissented on preemption grounds.
26
H.R. 11258, 68th Cong. (2d Sess. 1925).
27
See Ringer at 21-37 for a detailed discussion of efforts to provide copyright protection for sound
recordings from 1925-1951.
28
See id.; see also Melvin L. Halpern, The Sound Recording Act of 1971: An End to Piracy on the High
©’s?, 40 G
EO. WASH. L. REV. 964, 975 (1971-1972).
United States Copyright Office PRE-1972 SOUND RECORDINGS
10
writings). She characterized the arguments on both sides as “dictated by economic self-interest,
and revolv[ing] around the problem of radio broadcasting.”
29
She observed that there was
“practically no direct opposition” to the principle that sound recordings should be protected
against unauthorized duplication.
30
As work began in earnest on a comprehensive revision of the 1909 Copyright Act, the
possibility of protecting sound recordings received renewed attention. Barbara Ringer’s study,
“The Unauthorized Duplication of Sound Recordings” was one of several studies commissioned
by Congress to lay the groundwork for what became the 1976 Copyright Act. The contemplation
was that sound recordings would be included in the copyright revision law that was then under
development,
31
and copyright revision bills in the 1960s and early 1970s included protection for
sound recordings, although the scope of that protection varied in the different bills.
32
B. 1971 Sound Recording Amendment
The general copyright revision process became stalled in the late 1960s and early 1970s.
Congress, persuaded that the situation concerning sound recordings was becoming urgent,
decided to bring sound recordings under the federal copyright law without waiting for the overall
revision. On November 15, 1971 it passed the Sound Recording Amendment, which for the first
time made sound recordings eligible for federal copyright.
33
There were three principal reasons that Congress moved ahead on sound recordings
without waiting for the general revision. First, record and tape piracy had climbed to alarming
29
Ringer at 37.
30
Id.
31
See Report of the Register of Copyrights on the General Revision of the Copyright Law at 18 (1961).
32
See, e.g., Copyright Law Revision, Part 3, Preliminary Draft for Revised U.S. Copyright Law § 10 (Sept.
1964); S. 543, 91st Cong. (1st Sess. 1969); H.R. 2512, 90th Cong. (1st Sess. 1967); S. 597, 90th Cong. (1st
Sess. 1967).
33
Pub. L. No. 92-140, § 3, 85 Stat. 391, 392 (1971).
United States Copyright Office PRE-1972 SOUND RECORDINGS
11
proportions as the use of audiotapes and audiotape recorders became increasingly popular and
made it easier to make and distribute unauthorized recordings on a commercial scale. The House
Report accompanying the 1971 Act estimated the annual volume from pirated sales “in excess of
$100 million” as compared with $300 million annually from legitimate sales of prerecorded
tapes.
34
Second, although states had begun to pass criminal laws prohibiting the unauthorized
commercial duplication and distribution of sound recordings,
35
in most states record producers
still relied on unfair competition, “where the remedies available are limited.”
36
Moreover, the
Supreme Court’s decisions in Sears, Roebuck & Co. v. Stiffel
37
and Compco v. Day-Brite
Lighting, Inc.
38
had cast doubt on the validity of state protection.
39
Defendants in record piracy
cases were arguing that state laws were preempted by the federal copyright scheme, even though
Congress had chosen not to protect sound recordings.
40
Third, a diplomatic conference to complete a treaty to combat record piracy was
scheduled for late 1971, and Congress believed progress on the domestic front would be helpful
to U.S. interests.
41
34
H.R. REP. NO. 92-487, 92nd Cong. at 2 (1971).
35
See infra Chapter II.E.
36
H.R. REP. NO. 92-487 at 2. For example, state law was far from uniform, and states could not enjoin
activities beyond their borders. See Halpern, The Sound Recording Act of 1971: An End to Piracy on the
High ©’s?, 40 G
EO. WASH. L. REV. at 975.
37
376 U.S. 225, 230 (1964).
38
376 U.S. 234, 238 (1964).
39
See H.R. REP. No. 92-487 at 2-3, 12-13; see also Int’l Tape Mfrs. Assn v. Gerstein, 344 F. Supp. 38, 49
(S.D. Fla. 1972), vacated and remanded, 494 F.2d 25 (5th
Cir. 1974); Tape Indus. Assn. v. Younger, 316 F.
Supp. 340, 346 (C.D. Cal. 1970), appeal dismissed, 401 U.S. 902 (1971).
40
The preemption issue was not conclusively resolved until after the Sound Recording Amendment was
passed, when the Supreme Court decided Goldstein v. California, 412 U.S. 546 (1973), discussed below.
41
See H.R. REP. NO. 92-487 at 3, 11. The diplomatic conference led to the Geneva Convention for the
Protection of Producers of Phonograms, Oct. 28, 1971, 25 U.S.T. 309.
United States Copyright Office PRE-1972 SOUND RECORDINGS
12
The effective date of the Sound Recording Amendment was February 15, 1972,
42
four
months after it was passed. It applied to sound recordings first fixed on or after that date. The
law provided only a limited right with respect to sound recordings. Its principal provision was to
grant sound recordings a reproduction right analogous to that provided for other works of
authorship, thus giving record producers a new tool with which to combat outright duplication.
However, the right to reproduce was “limited to the right to duplicate the sound recording in a
tangible form that directly or indirectly recaptures the actual sounds fixed in the recording.”
43
Thus, the new law provided no protection against imitations of the performance. Moreover, it
contained a significant temporal restriction: it had a “sunset provision” and protected only sound
recordings first fixed on or after February 15, 1972 and before January 1, 1975.
44
It is apparent
that Congress envisioned that protection for sound recordings would be folded into the copyright
revision act then under consideration, making any extension of the sound recording amendment
unnecessary.
The bill omitted any performance right for sound recordings, which had been a
controversial issue in the revision process. At the same time, Congress refused to impose a
compulsory license on sound recordings analogous to the one contained in the law for musical
compositions, something that the bill’s opponents had sought. In both cases, Congress observed
that those issues could be revisited in the general revision of the copyright law.
45
There was no
discussion of Congress’s decision to protect sound recordings only on a prospective basis.
42
Pub. L. No. 92-140, § 3, 85 Stat. 391, 392 (1971).
43
Id. § 1(a).
44
See id. § 3.
45
See H.R. REP. NO. 92-487 at 5; S. REP. NO. 92-72 at 3 (1971).
United States Copyright Office PRE-1972 SOUND RECORDINGS
13
Shortly after the 1971 Sound Recording Amendment was enacted, its constitutionality
was challenged in Shaab v. Kleindienst.
46
A three-judge district court rejected the plaintiff’s main
argument that sound recordings do not qualify as the “writings” of “authors.”
The following year, the Supreme Court put to rest the question whether states could
regulate pre-1972 sound recordings. In Goldstein v. California,
47
the Supreme Court held that
California’s record piracy law as it applied to pre-1972 sound recordings was not preempted by
federal copyright law or the Constitution under its decision in Sears and Compco. The Court
concluded that Congress had left the area of sound recordings “unattended,” and states were free
to act with respect to the regulation of pre-1972 sound recordings.
48
The Goldstein case led to the
passage of many more state anti-piracy laws with respect to pre-1972 recordings,
49
and its
rationale extended as well to state civil protection.
By the end of 1974 the copyright revision bill still had not become law, so Congress
removed the January 1, 1975 sunset date for federal copyright protection of sound recordings.
50
C. 1976 Copyright Revision Act
The Copyright Revision Act was passed on October 19, 1976. It included sound
recordings among the categories of protectable subject matter, although the scope of protection
for sound recordings continued to be more limited than that for other works. The reproduction
right was (and continues to be) limited to duplication of the actual sounds in the recording.
51
46
345 F. Supp. 589 (D.D.C. 1972).
47
412 U.S. 546 (1973).
48
Id. at 569-70.
49
See Sidney A. Diamond, Sound Recordings and Phonorecords: History and Current Law, 1979 U. ILL.
L. F. 337, 349 (1979).
50
Pub. L. No. 93-573, 88 Stat. 1873 (Dec. 31, 1974).
51
See 17 U.S.C. § 114(b). There is a similar limitation with respect to the derivative work right in sound
recordings. See id.
United States Copyright Office PRE-1972 SOUND RECORDINGS
14
Sound recordings were granted no public performance right in the 1976 Copyright Act, although
later enactments provided them with a performance right with respect to certain digital
transmissions.
52
Thus sound recordings fixed on or after February 15, 1972 were secure in their eligibility
for federal copyright protection. The fate of pre-1972 sound recordings, however, was addressed
separately in the law.
To create a unitary system of copyright, Congress in the 1976 Act preempted state law
that provided rights equivalent to copyright. Specifically, section 301(a) of the Copyright Act
provides:
On and after January 1, 1978, all legal or equitable rights that are equivalent to
any of the exclusive rights within the general scope of copyright as specified by
section 106 in works of authorship that are fixed in a tangible medium of
expression and come within the subject matter of copyright as specified by
sections 102 and 103, whether created before or after that date and whether
published or unpublished, are governed exclusively by this title. Thereafter, no
person is entitled to any such right or equivalent right in any such work under the
common law or statutes of any State.
Congress exempted pre-1972 sound recordings from this general preemption provision
and treated them separately under section 301(c) of the Copyright Act, which currently provides:
With respect to sound recordings fixed before February 15, 1972, any rights or
remedies under the common law or statutes of any State shall not be annulled or
limited by this title until February 15, 2067. The preemptive provisions of
subsection (a) shall apply to any such rights and remedies pertaining to any cause
of action arising from undertakings commenced on and after February 15, 2067.
Notwithstanding the provisions of section 303, no sound recording fixed before
February 15, 1972, shall be subject to copyright under this title before, on, or
after February 15, 2067.
Why Congress decided to maintain two separate systems of protection for sound
recordings is unclear.
53
There are at least two theories as to why Congress did not bring pre-1972
52
Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (1995),
as amended by the Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860, 2905
(1998) (codified at 17 U.S.C. § 114).
United States Copyright Office PRE-1972 SOUND RECORDINGS
15
recordings under federal law in 1976. The first is that Congress did not fully understand the
implications of amending the bill as it then existed to add section 301(c) – in short, it was simply
a mistake. Section 301 in S. 22, the general revision bill introduced in 1975, provided for
preemption of state laws equivalent to copyright, but did not specifically exclude state laws
concerning pre-1972 sound recordings.
54
The Justice Department, in the course of the 1975
hearings, had expressed concern that unless Congress excluded pre-1972 sound recordings from
the general preemption provision, state anti-piracy laws related to those recordings would be
abrogated, and the likely result would be “the immediate resurgence of piracy of pre-February 15,
1972 sound recordings.”
55
It suggested adding a provision to exclude from the sweep of federal
preemption the state laws that protected pre-1972 sound recordings. Apparently in response to
this concern, the Senate added such a provision to the pending bill.
56
Nimmer suggests that both
the Justice Department and the Senate “overlooked” the fact that a resurgence of piracy would not
53
Commentary on the early revision bills reflected some uncertainty as to whether any preexisting sound
recordings would qualify for federal copyright protection. Against the possibility that at least some might
be eligible, Congress included a provision in the revision bill (§ 402(d)) that copyright notice would be
required only once the federal law became applicable, so that an otherwise eligible recording would not be
barred from protection for failure to use a notice in the past. See, e.g., H.R. R
EP. NO. 89-2237 at 20, 39
(1966). The sound recording industry urged that preexisting recordings affirmatively be included in the
revision bill. See, e.g., Hearings on S. 597 Before the Subcomm. on Patents, Trademarks and Copyrights of
the S. Comm. on the Judiciary, 90th Cong. at 519 (1967) (Testimony of Clive Davis, CBS Records); see id.
at 531-32 (Testimony of Henry Brief, RIAA). In 1969, Senator Harrison Williams offered an amendment
to S. 543, the revision bill under consideration by the Senate in the 91st Congress. 115 C
ONG. REC. 8613,
8617 (Apr. 3, 1969). The amendment was principally designed to add a performance right in sound
recordings, but it also included an amendment to section 303 of the draft bill to explicitly protect
preexisting sound recordings. The performance rights amendment was accepted and became part of the
revision bill in the Senate until 1974. Neither the portion of the amendment designed to include preexisting
sound recordings under federal law nor section 402(d) survived the subcommittee vote, but the report
provides no explanation. See S. R
EP No. 91-1219 at 7 (1970).
54
S. 22, 94th Cong., § 301 (1st Sess. 1975).
55
Hearings on H.R. 2223 Before the Subcomm. on Courts, Civil Liberties and the Administration of
Justice of the H. Comm. on the Judiciary, Ser. No. 36, Part I at 137-38 (1975) [hereinafter, 1975 House
Hearings].
56
S. 22, 94th Cong. § 301(b)(4) (2d Sess. 1976).
United States Copyright Office PRE-1972 SOUND RECORDINGS
16
otherwise have resulted because the revision bill in its then-current form conferred statutory
protection on all sound recordings.
57
However, it appears that the Recording Industry Association of America (“RIAA”) and
the Copyright Office shared the Justice Department’s view that without the amendment to the
preemption provision, pre-1972 sound recordings would be left without protection when the
Copyright Revision Act went into effect. RIAA “strongly supported” the Justice Department’s
proposed amendment.
58
The Register of Copyrights agreed that pre-1972 sound recordings
“should not all be thrown into the public domain instantly upon the coming into effect of the new
law.”
59
However, she expressed concern that under the Justice Department’s proposed
amendment, sound recordings would have perpetual protection under state law, and suggested a
revision to provide a future date of February 15, 2047 for preemption to take place.
60
Subsequently, the House added an end date of February 15, 2047 for state law protection
for pre-1972 recordings, together with a provision specifically excluding pre-1972 sound
recordings from federal copyright protection.
61
The second theory for why Congress did not bring pre-1972 sound recordings into federal
copyright in 1976 is that Congress was simply following a long tradition of including new works
57
1 NIMMER ON COPYRIGHT, § 2.10[B] at 2-178.4.
58
1975 House Hearings at 1397 (1975) (Addendum to Statement of Stanley M. Gortikov, Sept. 11, 1975).
59
Id. at 1911 (testimony of Barbara Ringer, Register of Copyrights).
60
Id. Concerning the 2047 end date, the Register stated: “This might seem like a long time, but I would
point out that it is in comparison to eternity. . . .” Id.
61
This date of February 15, 2047 allowed state law works created the last day before federal copyright
protection went into effect – February 14, 1972 – to enjoy a full 75 years of protection. Seventy-five years
was the maximum duration of protection for works copyrighted under the 1909 Act, as provided by the
terms of the 1976 Act. Of course, under most state laws there is no expiration date for protection of pre-
1972 sound recordings, so a sound recording created in either 1941or 1971would remain protected until
2047. When the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998)
was passed, the date for preemption of state laws protecting sound recordings was extended by 20 years, to
February 15, 2067.
United States Copyright Office PRE-1972 SOUND RECORDINGS
17
under copyright only on a prospective basis.
62
This was the case, for example, with musical
compositions in 1831
63
and photographs
64
in 1865.
65
It is apparent from the legislative reports concerning the Sound Recording Amendment
and the 1976 Copyright Act that Congress well understood it was leaving in place the state law
regime for pre-1972 sound recordings, rather than bringing them under federal law. However,
nowhere does Congress explain the considerations that, in its view, supported this result. This
omission is particularly curious in light of Congress’s articulated goal of a unitary system of
copyright and its decision to implement that goal by bringing essentially all other works protected
by state law copyright regimes into the federal system.
D. 1994 Uruguay Round Agreements Act
Despite this history, there are now some pre-1972 sound recordings that do enjoy federal
copyright protection. When Congress implemented the TRIPS Agreement in the Uruguay Round
Agreements Act (URAA),
66
passed in 1994, it “restored” copyright protection to certain works of
foreign origin that were in the public domain in the United States on the effective date (which for
most works was January 1, 1996).
67
This was done to comply with U.S. treaty obligations. Many
62
See Henry Lee Mann, As Our Heritage Crumbles Into Dust: The Threat of State Law Protection for
Pre-1972 Sound Recordings, 6 W
AKE FOREST INTELL. PROP. L. REV. 45, 51-54 (2006).
63
Act of Feb. 3, 1831, Ch. 16, 4 Stat. 436.
64
Act of Mar. 3, 1865, Ch. 126, 13 Stat. 540.
65
In 1912 Congress amended the 1909 Copyright Act to include motion pictures, but the law was silent on
the question of its applicability to earlier works. Act of Aug. 24, 1912, Ch. 356, 37 Stat. 488.
66
The Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994), implemented U.S.
obligations under the Trade-Related Aspects of Intellectual Property Rights Agreement, April 15, 1994, 33
I.L.M. 1199, Annex 1C of the Agreement Establishing the World Trade Organization (“TRIPS
Agreement”), 33 I.L.M. 1143 (1994).
67
This was the date of restoration for works whose source countries were members of the Berne
Convention or the WTO on that date; for other countries, it is the date of adherence. See 17 U.S.C.
§ 104A(h)(2).
United States Copyright Office PRE-1972 SOUND RECORDINGS
18
of those works had fallen into the public domain for failure to comply with U.S. formalities that
used to be conditions for copyright protection, such as renewal registration or affixation of a valid
copyright notice. However, among the works for which protection was “restored” were
qualifying pre-1972 sound recordings of foreign origin, which had never before been eligible for
federal copyright protection.
In order to be eligible for restoration, works had to meet several conditions, including (1)
they could not, on the date of restoration, be in the public domain in their home country through
expiration of the term of protection; (2) they had to be in the public domain in the United States
due to noncompliance with formalities, lack of subject matter protection (as was the case for
sound recordings),
68
or lack of national eligibility; and (3) they had to meet national eligibility
standards, i.e., the work had to be of foreign origin.
69
Specifically, to be restored a work had to
have “at least one author or rightholder who was, at the time the work was created, a national or
domiciliary of an eligible country, and if published, must have been first published in an eligible
country and not published in the United States during the 30-day period following publication in
such eligible country.”
70
Restoration occurred automatically on the effective date.
71
As explained above, one of
the conditions was that the sound recording in question could not be in the public domain in its
home country on the effective date due to expiration of copyright term. Most foreign sound
recordings are protected in other countries not by copyright, but under a “neighboring rights”
regime which provides a 50-year term of protection.
72
As a result, most foreign sound recordings
68
See 17 U.S.C. § 104A(h)(6)(C)(ii).
69
See 17 U.S.C. § 104A(h)(6).
70
17 U.S.C. §104A(h)(6)(D).
71
17 U.S.C. §104A(a)(1).
72
Some countries offer a longer term of protection for sound recordings, and the number of countries that
offer a longer term is about to increase dramatically. Earlier this year, the Council of the European Union
issued a directive extending the term of protection for phonograms (sound recordings) to 70 years.
United States Copyright Office PRE-1972 SOUND RECORDINGS
19
first fixed prior to 1946 were not eligible for restoration. Those that were protected in their home
countries on January 1, 1996 got the term they would have received had they been copyrighted in
the United States: 75 years from publication, later extended to 95 years.
73
This means, for
example, that a foreign recording made in 1945 probably would have gone into the public domain
in its home country by the end of 1995 and therefore was not eligible for U.S. federal copyright
protection.
74
On the other hand, a foreign recording made in 1947 probalby would have have
gone into the public domain in its home country by the end of 1997, but because its copyright was
restored in the United States on January 1, 1996, it received a 75 year term (later extended to 95
years), so it will be protected by U.S. copyright law until the end of 2042.
It is theoretically possible that foreign sound recordings restored to federal copyright
protection enjoy concurrent state law protection. Section 301(c) – which saves state laws
concerning sound recordings from federal preemption until 2067 – was never amended to exclude
foreign recordings.
75
However, the rationale underlying Goldstein v. California was that
Congress “has left the area [legal protection of sound recordings] unattended, and no reason
exists why the State should not be free to act.”
76
One might reasonably argue that Congress has
not left the legal status of these restored foreign recordings “unattended,” so that state law is
preempted by the URAA at least with respect to those recordings. This issue has not been
Directive 2011/77/EU of The European Parliament and of The Council, 2011 O.J. (L. 265) (Sept. 27,
2011). All 27 member states of the European Union are required to implement the new extended term in
their domestic laws no later than November 1, 2013. The extension is not retroactive, i.e., it does not apply
to sound recordings that are already in the public domain. Thus, a phonorecord first published on
September 1, 1961 would not enjoy the newly-extended 70-year term of protection in the EU.
73
See Uruguay Round Agreements Act, Statement of Administrative Action, H.R. REP. NO. 103-316
(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4290.
74
However, such a recording may be eligible for state protection. See Capitol Records, Inc. v. Naxos of
America, Inc., 830 N.E.2d 250 (N.Y. 2005), discussed below.
75
See 3 NIMMER ON COPYRIGHT, § 8C.03[E] at 8C-10.2 to 8C-10.3.
76
412 U.S. 546, 570 (1973) (footnote omitted).
United States Copyright Office PRE-1972 SOUND RECORDINGS
20
addressed by the courts, and merely illustrates the potential complications, and inconsistencies, of
dual systems of protection.
E. State Law Protection for Pre-1972 Sound Recordings
State law protection for pre-1972 sound recordings is a complicated subject, and this
Report provides only a brief overview.
77
The states provide protection for pre-1972 sound
recordings through a patchwork of criminal laws, civil statutes and common law. Early cases
relied on common law, principally the tort of unfair competition, to protect sound recordings from
unauthorized duplication and sale.
78
By the 1950s, record piracy had become a serious problem,
with pirates openly competing with record companies.
79
For that reason, attention shifted to
legislation imposing criminal sanctions starting in the 1960s.
1. Criminal Record Piracy Statutes
In the 1960s, states began to pass laws making it a criminal offense to duplicate and
distribute sound recordings, without authorization, for commercial purposes. New York was the
first such state in 1967; California was the second, in 1968.
80
Several other states followed, and
77
For a more extensive overview of state law protection for pre-1972 sound recordings, see JASZI STUDY,
BESEK UNPUBLISHED SOUND RECORDINGS STUDY, and BESEK COMMERCIAL SOUND RECORDINGS STUDY.
A chart of state criminal laws, prepared initially by ARL and revised and updated by Copyright Office
interns, as well as the texts of those laws, are available at www.copyright.gov/docs/sound
.
78
See, e.g., Victor Talking Mach. Co. v. Armstrong, 132 F. 711 (S.D.N.Y. 1904).
79
Glenn M. Reisman, The War Against Record Piracy: An Uneasy Rivalry Between the Federal and State
Governments, 39 A
LB. L. REV. 87, 89 (1974).
80
See 1968 Cal. Stat. ch. 585, p. 1256, codified as amended in CAL. PENAL CODE § 653h (West 2011);
New York Law, L. 1967, ch. 680 § 59, initially codified in N.Y.
GEN. BUS. LAW art. 29-D. That section
was repealed in 1978 when the law became part of New York’s Penal Code, L. 1978, ch. 445, codified in
N.Y.
PENAL LAW §§ 275.00–275.45 (McKinney 2011).
United States Copyright Office PRE-1972 SOUND RECORDINGS
21
after the Supreme Court ruled in Goldstein v. California
81
in 1973 that state law protection of
sound recordings was constitutional, many additional states passed such laws.
a. Examples of state criminal statutes
Currently, nearly all states have criminal record piracy laws applicable to pre-1972 sound
recordings.
82
Most state criminal laws prohibit, at a minimum, duplication and sale of recordings
done knowingly and willfully with the intent to sell or profit commercially from the copies.
83
Many have express exceptions for activities such as broadcasting, archiving, and personal use. It
is unclear how many cases are brought under these statutes, but they inform the protection for
sound recordings under state law and provide a backdrop for commercial transactions.
Examples from four states – California, Michigan, New York and Tennessee – illustrate
some of the different forms of criminal record piracy statutes.
California. California’s criminal record piracy statute provides:
(a) Every person is guilty of a public offense . . . who:
(1) Knowingly and willfully transfers or causes to be transferred any
sounds that have been recorded on a phonograph record, disc, wire, tape,
film or other article on which sounds are recorded, with intent to sell or
cause to be sold, or to use or cause to be used for commercial advantage
or private financial gain through public performance, the article on which
the sounds are so transferred, without the consent of the owner.
(2) Transports for monetary or like consideration within [California] or
causes to be transported within [California] any such article with the
knowledge that the sounds thereon have been so transferred without the
consent of the owner.
84
81
412 U.S. 546.
82
2 NIMMER ON COPYRIGHT, § 8C.03[C] at 8C-8 to -9; JASZI STUDY at 8. According to a survey prepared
by the Association of Research Libraries and supplemented and revised by the Copyright Office, only
Indiana and Vermont do not have some form of statute criminalizing piracy of sound recordings. See
http://www.copyright.gov/docs/sound/
.
83
State laws generally also protect against creation and distribution of bootleg recordings – sometimes in
the same statute that prohibits unauthorized duplication and distribution of existing sound recordings, and
sometimes in a separate provision. See, e.g., B
ESEK UNPUBLISHED SOUND RECORDINGS STUDY, App. A.
However, those laws, which relate to the recording of live performances without authorization, are not the
focus of this Report.
84
CAL. PENAL CODE § 653h(a) (West 2011).
United States Copyright Office PRE-1972 SOUND RECORDINGS
22
In addition the law provides that
Every person who offers for sale or resale, or sells or resells, or causes the sale or
resale, or rents, or possesses for [the purposes specified above], any article
described in subdivision (a) with knowledge that the sounds thereon have been so
transferred without the consent of the owner is guilty of a public offense.
85
The statute provides an exemption for persons engaged in radio or television broadcasting
who transfer sounds (other than from the sound track of a motion picture) in connection with
“broadcast transmission or related uses, or for archival purposes.”
86
The California law contains an “orphan works” exception for not-for-profit educational
institutions or federal or state governmental entities that have as their primary purpose “the
advancement of the public’s knowledge and the dissemination of information regarding
America’s musical cultural heritage.”
87
It requires that the educational institution or government
entity make “a good faith effort to identify and locate the owner or owners of the sound
recordings to be transferred” and “the owner or owners could not be and have not been located.”
88
It provides that specific efforts must be taken to find the right holder.
89
Also, it provides that the
85
Id. § 653h(d). It is also an offense if, for commercial advantage or private financial gain, one knowingly
advertises, offers for sale, etc. a recording whose cover or label does not accurately disclose the true name
of the manufacturer and artist(s). Id. § 653w.
86
Id. § 653h(g).
87
That purpose must be “clearly set forth in the institution’s or entity’s charter, bylaws,” or similar
document. Id. § 653h(h).
88
Id.
89
“In order to continue the exemption permitted by this subdivision, the institution or entity shall make
continuing efforts to locate such owners and shall make an annual public notice of the fact of the transfers
in newspapers of general circulation serving the jurisdictions where the owners were incorporated or doing
business at the time of initial affixations. The institution or entity shall keep on file a record of the efforts
made to locate such owners for inspection by appropriate governmental agencies.” Id.
United States Copyright Office PRE-1972 SOUND RECORDINGS
23
exemption does not relieve an institution or entity of its contractual or other obligation to
compensate the owners of sound recordings to be transferred.
90
Michigan. Michigan’s record piracy statute provides:
[A] person, without the consent of the owner, shall not transfer or cause to be
transferred sound recorded on a phonograph record, disc, wire, tape, film, or
other article on which sound is recorded, with the intent to sell or cause to be sold
for profit or used to promote the sale of a product, the article on which the sound
is so transferred.
91
…
A person, knowing or having reasonable grounds to know that the sound thereon
has been transferred without the consent of the owner, shall not advertise, sell,
resell, offer for sale or resale, or possess for the purpose of sale or resale, an
article that has been produced in violation of [the provision above].
92
The Michigan law contains an exception for persons who transfer sound or cause it to be
transferred when:
(a) Intended for or in connection with radio or television broadcast transmission or
related uses.
(b) For archival, library, or educational purposes.
(c) Solely for the personal use of the person transferring or causing the transfer
and without any compensation being derived by the person from the transfer.
93
New York. New York Penal Law provides criminal liability for a person who
1. knowingly, and without the consent of the owner, transfers or causes to be
transferred any sound recording, with the intent to rent or sell, or cause to be
rented or sold for profit, or used to promote the sale of any product, such article
to which such recording was transferred, or
2. transports within this state, for commercial advantage or private financial
gain, a recording, knowing that the sounds have been reproduced or transferred
without the consent of the owner. . . .
94
In addition, it is an offense if someone
90
Id.
91
MICH. COMP. LAWS ANN. § 752.782 (West 2011).
92
Id. at §752.783.
93
Id. §752.785.
94
N.Y. PENAL LAW § 275.05 (McKinney 2011). This offense is entitled “Manufacture of unauthorized
recordings in the second degree.” If done by someone who has been convicted of the same crime in the
past five years, or who manufactures one thousand unauthorized recordings, it may qualify as a first degree
offense with enhanced penalties. Id. § 275.10.
United States Copyright Office PRE-1972 SOUND RECORDINGS
24
knowingly advertises, offers for sale, resale, or rental, or sells, resells, rents,
distributes or possesses for any such purposes, any recording that has been
produced or transferred without the consent of the owner. . . .
95
The term “recording” is broadly defined to include any medium on which sound, images,
or both can be recorded.
96
There are exceptions in the law for (1) any broadcaster who transfers
recorded sounds or images in connection with or as part of a radio, TV or cable broadcast, or for
the purposes of archival preservation, and (2) for “any person who transfers such sounds or
images for personal use, and without profit for such transfer.”
97
The statute does not define the
terms “broadcaster” or “archival preservation,” and there is no case law on this subsection that
clarifies those terms.
Tennessee. Under Tennessee law, it is unlawful for any person to:
(A) Knowingly reproduce for sale or cause to be transferred any recording with
intent to sell it or cause it to be sold or use it or cause it to be used for
commercial advantage or private financial gain through public performance
without the consent of the owner;
(B) Transport within this state, for commercial advantage or private financial
gain, a recording with the knowledge that the sounds on the recording have
been reproduced or transferred without the consent of the owner; or
(C) Advertise, offer for sale, sell or rent, cause the sale, resale or rental of, or
possess for one (1) or more of these purposes any recording that the person
95
Id. § 275.25. If done by someone who has been convicted of the same crime in the past five years, or the
commission of that crime involved at least one thousand unauthorized sound recordings or at least one
hundred unauthorized audiovisual recordings, it may qualify as a first degree offense with enhanced
penalties. Id. § 275.30. Failure to disclose the origin of a recording is also an offense. Id. § 275.35.
96
The definition in full provides:
“Recording” means an original phonograph record, disc, tape, audio or video cassette, wire, film,
hard drive, flash drive, memory card or other data storage device or any other medium on which
such sounds, images, or both sounds and images are or can be recorded or otherwise stored, or a
copy or reproduction that duplicates in whole or in part the original.
Id. § 275.00(6).
97
Id. § 275.45.
United States Copyright Office PRE-1972 SOUND RECORDINGS
25
knows has been reproduced or transferred without the consent of the
owner.
98
“Recording” for purposes of the statute includes sound recordings in any medium.
99
Tennessee law provides no statutory exceptions.
b. Summary of state criminal record piracy provisions
Commercial/For profit activity: All of the statutes cited above require sales or
commercial or “for profit” use or intent as a predicate to liability, and that appears to be true for
the great majority of criminal statutes.
100
There are a small number of states, however, that do not
explicitly require commercial activity for at least some offenses related to unauthorized use of
pre-1972 sound recordings. For example, Alabama’s law makes it a felony to knowingly
reproduce sound recordings (i.e., to “transfer or cause to be transferred . . . any sounds recorded”)
without the consent of the owner onto any medium “now known or later developed” for recording
sounds, with the intent to sell or rent the recordings “for commercial advantage or private
financial gain” or “to be used for profit through public performance.”
101
On the other hand
Alabama also provides, without specific reference to commercial gain, that it is an offense “to
manufacture, distribute, transport or wholesale” any recording with knowledge that the sounds or
98
TENN. CODE. ANN. § 39-14-139(b)(1)(A–C) (2011).
99
The Tennessee statute provides:
“Recording” means a tangible medium on which sounds, images, or both are recorded or
otherwise stored, including an original phonograph record, disc, tape, audio or video
cassette, wire, film, memory card, flash drive, hard-drive, data storage device, or other
medium now existing or developed later on which sounds, images, or both are or can be
recorded or otherwise stored, or a copy or reproduction that duplicates, in whole or in
part, the original.
T
ENN. CODE. ANN. § 39-14-139(a)(6) (2011).
100
See JASZI STUDY at 12 (regarding the meaning of “commercial”).
101
ALA. CODE § 13A-8-81(a)(1) (2011).
United States Copyright Office PRE-1972 SOUND RECORDINGS
26
performances thereon were transferred without the owner’s consent.
102
Georgia law provides
that it is unlawful to “transfer or cause to be transferred any sounds or visual images recorded on
a phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual
images are recorded onto any other phonograph record, disc, wire, tape, videotape, film, or
article” without the consent of the owner of the master recording.
103
There is no explicit
requirement of commercial gain or intent to profit. However, the law does exclude copies made
solely for the personal use of the copier, provided no profit is derived from the copying.
104
Prohibited Activities. The formulation of prohibited activities varies from state to state.
Almost all states prohibit the act of duplicating without authorization (often referred to as
“transferring the sounds”). Most states also prohibit advertising or offering for sale, and selling
or otherwise distributing the unauthorized recordings. Some states also criminalize activities
such as transporting sound recordings within the state (or possessing them) with knowledge that
they are unauthorized, with intent to sell them.
Exceptions. The nature and number of exceptions available under criminal statutes vary
from state to state. Most states have at least a few exceptions, the most common being exceptions
for broadcasters to facilitate broadcast transmissions and/or for archival purposes, such as those
found in the laws of California, Michigan and New York, discussed above.
105
But “broadcaster”
is often undefined and the exception is usually limited to radio and television broadcasting,
although in some states cable transmissions are also included.
106
102
ALA. CODE § 13A-8-81(a)(3) (2011); see also JASZI STUDY at 24, 29.
103
GA. CODE ANN. § 16-8-60(a)(1) (2011); see also IOWA CODE ANN. § 714.15 (West 2011); NEB. REV.
STAT. ANN. § 28-1323 (West 2011).
104
GA. CODE ANN. § 16-8-60(c)(3) (2011).
105
All ten states surveyed in the Jaszi Study had an exception for broadcasters. See JASZI STUDY at 10.
106
See, e.g., DEL. CODE ANN. tit. 11, § 923(1) (West 2011); FLA. STAT. ANN. § 540.11(6)(a) (West 2011).
North Carolina has extended its exception to webcasters. See N.C.
GEN. STAT. § 14-433(c) (2010); JASZI
STUDY at 10.
United States Copyright Office PRE-1972 SOUND RECORDINGS
27
Many states (such as Michigan, whose statute is described above) also have an exemption
for personal nonprofit or noncommercial use, sometimes limited to “in home” use.
107
Several
states (such as California and Michigan, cited above) have exceptions for educational or library
uses,
108
or for archival preservation that is not limited to broadcasters.
109
And then there are
exceptions provided by only one or a very few states, such as for judicial proceedings,
110
law
enforcement purposes,
111
and even, in one case, for sound recordings of bird and wild animal
calls.
112
Even without a specific exception, in almost all cases activities that are not undertaken
for commercial advantage or private financial gain will not be within the scope of potential
criminal liability. However, as the Jaszi Study points out, “[t]he word ‘commercial’ . . . is subject
to a multitude of interpretations” and it is possible for a nonprofit institution to receive
commercial benefits in any number of ways.
113
Nevertheless, there are two important considerations about the criminal laws that provide
considerable comfort to users with respect to activities that would be permitted if federal law
were applicable. First, criminal laws are strictly construed.
114
So, where there is ambiguity, the
law is likely to be construed in the user’s favor. Second, criminal laws are enforced by public
107
See, e.g., COLO. REV. STAT. § 18-4-605(1)(b) (2011); MO. ANN. STAT. § 570.245(2) (West 2011).
108
See, e.g., NEB. REV. STAT. ANN. § 28-1325(4) (West 2011); W. VA. CODE § 61-3-50 (2011).
109
See, e.g., NEV. REV. STAT. ANN. § 205.217(3) (West 2010); R.I. GEN. LAWS ANN. § 42-8.1-7 (West
2011).
110
See, e.g., ALASKA STAT. § 45.50.900(b)(2) (2011); S.D. CODIFIED LAWS § 43-43A-4(3) (2011).
111
See MASS. GEN. LAWS ch. 266, § 143D (2010).
112
See S.C. CODE ANN. § 16-11-950 (2010).
113
JASZI STUDY at 12.
114
See, e.g., 73 Am. Jur. 2d Statutes § 194 (2011) (“Statutes imposing a penalty, or penal statutes, are
generally subject to a strict construction”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
28
officials, who are unlikely to bring an action in circumstances that do not amount to commercial
piracy.
2. Civil Statutes
A number of states have civil laws that address protection for pre-1972 sound recordings,
directly or indirectly. Section 980(a)(2) of the California statute provides civil protection of pre-
1972 sound recordings and is a good example:
The author of an original work of authorship consisting of a sound recording
initially fixed prior to February 15, 1972, has an exclusive ownership therein
until February 15, 2047, as against all persons except one who independently
makes or duplicates another sound recording that does not directly or indirectly
recapture the actual sounds fixed in such prior sound recording, but consists
entirely of an independent fixation of other sounds, even though such sounds
imitate or simulate the sounds contained in the prior sound recording.
115
The few cases decided under § 980(a)(2) have viewed the section as conferring an
intangible property interest in the sound recordings that can be protected in a misappropriation,
conversion or unfair competition claim. They have distinguished the property interest protected
by this statute from copyright protection which, under California law, terminates upon
publication.
116
Other states may provide civil protection under common law, but have statutory
limitations on those actions. For example, federal law permits states to protect pre-1972 sound
recordings until 2067, but Colorado’s law provides that “no common law copyright shall exist for
a period longer than fifty-six years after an original copyright accrues to an owner.”
117
California’s civil statute, cited above, provides protection only until 2047.
118
115
CAL. CIV. CODE § 980(a)(2) (West 2011).
116
See, e.g., Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, 725 (9th Cir. 1984);
A&M Records, Inc. v. Heilman, 75 Cal. App. 3d 554, 570 (Ct. App. 1977); see also J
ASZI STUDY at 34.
117
COLO. REV. STAT. § 18-4-601(1.5) (2011).
118
CAL. CIV. CODE § 980(a)(2) (West 2011). Delaware’s criminal piracy law provides protection only for
a period of 50 years from the original fixation of a sound recording, but the law provides that it “shall
neither enlarge nor diminish the rights of parties in civil litigation.” D
EL. CODE ANN. tit. 11, §§ 923(3), 924
(West 2011).
United States Copyright Office PRE-1972 SOUND RECORDINGS
29
Those limitations may also address the relationship between private actions and the
provisions of state criminal law. Some states specifically provide that there is a private right of
action for violation of the state criminal piracy provision.
119
A number of state laws specifically
preserve civil actions by stating affirmatively that their criminal piracy law is not an exclusive
remedy or that it does not abrogate civil actions.
120
Other states simply provide that the criminal
piracy law does not enlarge or diminish civil remedies.
121
A few states specifically prohibit certain types of claims in connection with pre-1972
sound recordings. For example, North Carolina has a statute that abrogates any common law
rights to obtain royalties on the commercial use of sound recordings embodying musical
performances once copies of the sound recordings are sold.
122
Essentially, this statute denies any
common law performance right in sound recordings.
123
South Carolina has a similar law.
124
119
See, e.g., ALA. CODE § 13A-8-85 (2011); N.C. GEN. STAT. § 14-436 (2010).
120
See, e.g., IDAHO CODE ANN. § 18-7607 (2011); LA. REV. STAT. ANN. § 14:223.4 (2011); OR. REV.
STAT. ANN. § 164.866 (West 2011).
121
See, e.g., ARK. CODE. ANN. § 5-37-510(f) (2011); TENN. CODE ANN. § 39-14-139(h) (2011); WASH.
REV. STAT. ANN. § 19.25.020(3) (West 2011).
122
North Carolina’s statute provides in full:
When any phonograph record or electrical transcription, upon which musical performances are
embodied, is sold in commerce for use within this State, all asserted common-law rights to
further restrict or to collect royalties on the commercial use made of such recorded
performances by any person is hereby abrogated and expressly repealed. When such article or
chattel has been sold in commerce, any asserted intangible rights shall be deemed to have
passed to the purchaser upon the purchase of the chattel itself, and the right to further restrict
the use made of phonograph records or electrical transcriptions, whose sole value is in their
use, is hereby forbidden and abrogated. Nothing in this section shall be deemed to deny the
rights granted any person by the United States copyright laws. The sole intendment of this
enactment is to abolish any common-law rights attaching to phonograph records and electrical
transcriptions, whose sole value is in their use, and to forbid further restrictions of the
collection of subsequent fees and royalties on phonograph records and electrical transcriptions
by performers who were paid for the initial performance at the recording thereof.
N.C.
GEN. STAT. § 66-28 (2010).
123
This statute was apparently passed in response to Waring v. Dunlea, 26 F. Supp. 338 (E.D.N.C. 1939).
See J
ASZI STUDY at 85-86. Despite this broad language, the North Carolina Court of Appeals in
Liberty/UA, Inc. v. Eastern Tape Corp., 180 S.E. 2d 414, 418 (N.C. Ct. App. 1971) held that the effect of
United States Copyright Office PRE-1972 SOUND RECORDINGS
30
Finally, a number of states also have statutory unfair competition laws that may reach
acts of record piracy if there is a likelihood of consumer confusion.
125
3. Non-Statutory Causes of Action
Most states also have some form of non-statutory civil protection, although the precise
nature of that protection varies from state to state. The two most prevalent theories for providing
protection are common law copyright and misappropriation/unfair competition,
126
but courts have
also protected sound recordings under other legal theories, such as conversion.
127
Sometimes
people mistakenly refer to all forms of protection collectively as “common law copyright” or
“common law protection.” But not all civil protection for sound recordings is common law – see
the discussion of civil statutes, above – and a “common law copyright” claim differs from one
grounded in unfair competition or conversion, as discussed below.
a. Common law copyright
The Nature of Common Law Copyright. Common law copyright refers to the protection
historically provided by state law to unpublished works of authorship. It is not statutory, but is
the statute was to eliminate “any common law right to restrict the use of a recording sold for use in this
State” and interpreted “use” to mean “the use for which a recording is intended; i.e. the playing of the
recording.” The court ruled that playing the recording publicly or privately was permitted, but rerecording
it for sale was not.
124
See S.C. CODE ANN. § 39-3-510 (2010).
125
See, e.g., 815 ILL. COMP. STAT. 510/2 (2011); OHIO REV. CODE ANN. § 4165.02 (West 2011); see also
J
ASZI STUDY at 14.
126
“Unfair competition” embraces two principal torts: “passing off” and misappropriation. “Passing off”
occurs when someone tries to market goods or services as those of another, to take advantage of the
goodwill that the other person has developed in the marketplace. The misappropriation prong is more often
applicable to unauthorized use of sound recordings, since generally the seller has no desire to mislead as to
the source of the recordings, but rather wants to benefit from – i.e., misappropriate the value of – another’s
investment of time, talent and money. Most misappropriation claims are now preempted under section 301
of the Copyright Act, but those with respect to pre-1972 sound recordings survive because of section
301(c).
127
See JASZI STUDY at 4, 19.
United States Copyright Office PRE-1972 SOUND RECORDINGS
31
judge-made law, developed through judicial decisions. For most works, common law copyright
protection disappeared in 1978 when the unitary, federal system of copyright took effect and
unpublished works were brought under the federal scheme. For pre-1972 sound recordings,
however, common law copyright remains relevant.
Traditionally, a work was protected by common law copyright only for as long as it was
unpublished.
128
Upon publication, if a work met the requirements of federal law (i.e., if it was
published with a proper notice of copyright), it gained federal copyright protection. Otherwise, it
went into the public domain. Sound recordings, however, were ineligible for federal protection
until 1972. Rather than allow sound recordings to be thrust into the public domain when copies
were distributed, states began amending their laws to ensure continued state protection, even
though the recordings were published as defined by federal law. Some states, like New York,
have done this by adapting their definition of “publication” so that sound recordings, regardless
of how widely distributed copies may have been, would be deemed unpublished and therefore
entitled to protection under the principles of common law copyright.
129
Other states, such as
California, simply protected sound recordings that were published or otherwise made widely
available under a different legal doctrine, such as unfair competition.
130
Because common law copyright has long protected unpublished works, one might have
reasonably expected states to confirm the application of common law copyright principles to the
128
For clarity, the terms “published” and “publication” will be used as defined in federal copyright law
unless otherwise specified: “‘Publication’ is the distribution of copies or phonorecords of a work to the
public by sale or other transfer of ownership, or by rental, lease or lending.” 17 U.S.C. § 101.
129
The Supreme Court in Goldstein held that federal law concerning publication had no application to state
law, indicating that states were free to define publication as they wished for state law purposes. 412 U.S. at
570 n.28.
130
See, e.g., Lone Ranger Television, 740 F.2d at 726 (copies of radio broadcasts are not eligible for
common law copyright protection but may still be protected pursuant to a conversion or unfair competition
claim, which “lies outside copyright”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
32
pre-1972 sound recordings that remain unpublished.
131
The reality is that there is little state law
directed to unpublished sound recordings and nearly all of the state law cases involving pre-1972
sound recordings involve commercially published sound recordings.
132
Recent Common Law Copyright Cases. The most notable case in recent years involving
pre-1972 sound recordings was Capitol Records, Inc. v. Naxos of America, Inc.
133
At issue were
recordings of classical music performances by Pablo Casals, Edwin Fischer and Yehudi Menuhin,
originally made in the 1930s. Capitol, with a license from EMI, the successor of the original
recording company, remastered the recordings, and was distributing them in the United States.
Naxos obtained and restored the recordings in the UK, where they were in the public domain, and
began marketing them in the United States in competition with Capitol. Capitol sued in federal
court for unfair competition, misappropriation and common law copyright infringement. The
district court granted summary judgment to Naxos because the recordings were in the public
domain in the UK, where they were originally recorded.
When that decision was appealed, the U.S. Court of Appeals for the Second Circuit
concluded that New York law was unclear in some important respects and certified three
questions of state law to the New York Court of Appeals (the highest court of the state):
(1) whether expiration of the term of protection in the country of origin precluded
common law copyright protection in New York;
(2) whether a cause of action for common law copyright infringement includes
some or all of the elements of a claim for unfair competition; and
(3) whether a claim for common law copyright infringement is defeated by a
demonstration that plaintiff’s work has little market value, and defendant’s work
131
This is, of course, provided that any statute of limitations a state has provided with respect to such
works has not lapsed. See, e.g., C
OLO. REV. STAT. § 18-4-601(1.5) (2011).
132
Note, however, that the Jaszi Study examined cases addressing common law copyright, not only with
respect to pre-1972 sound recordings, but also as they had developed with respect to unpublished works
prior to 1978.
133
4 N.Y.3d 540, 830 N.E.2d 250, 797 N.Y.S.2d 352 (N.Y. 2005).
United States Copyright Office PRE-1972 SOUND RECORDINGS
33
can fairly be regarded as a new product, even though it uses components of
plaintiff’s work.
134
The New York Court of Appeals accepted the case, and held that foreign sound
recordings remain protected under “common law copyright” in New York until 2067, even
though they may be in the public domain in their home country. Concerning the second question,
the court explained that a common law copyright claim in New York “consists of two elements:
(1) the existence of a valid copyright; and (2) unauthorized reproduction of the work protected by
copyright.”
135
It went on to state that “[c]opyright infringement is distinguishable from unfair
competition, which in addition to unauthorized copying and distribution requires competition in
the marketplace or similar actions designed for commercial benefit.”
136
Concerning the final certified question, the court concluded that even if the original
recordings had “slight if any current market” and Naxos’s work, because of the remastering,
could fairly be regarded as a new product, it would not affect plaintiff’s ability to enforce a state
law copyright claim.
137
It ruled that Naxos’s remastered recording could still infringe Capitol’s
copyright “to the extent that it utilizes the original elements of the protected performances.”
138
It
also observed in passing, with reference to federal copyright law, that Naxos’s recordings were
not independent creations and that under the fair use doctrine, reproduction of an entire work is
generally infringing.
139
134
Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 484-85 (2d Cir. 2004), certified question
accepted, 3 N.Y.3d 666, 817 N.E.2d 820, 784 N.Y.S.2d 3 (N.Y. 2004), and certified question answered, 4
N.Y.3d 540, 830 N.E.2d 250, 797 N.Y.S.2d 352 (N.Y. 2005).
135
830 N.E.2d at 266.
136
Id.
137
Id. at 266-67.
138
Id. at 267.
139
Id.
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34
In EMI Records Ltd. v. Premise Media Corp.,
140
a New York trial court, ruling on a
motion for a preliminary injunction, considered the applicability of the fair use defense to a claim
for infringement of common law copyright in a sound recording. Defendants had used an excerpt
of John Lennon’s “Imagine,” a pre-1972 sound recording, in a documentary film entitled
“Expelled.” The film attempts to counter criticism of the theory of intelligent design. The 99-
minute documentary used a 15-second excerpt from Lennon’s 3-minute sound recording.
Plaintiffs argued that under common law copyright, any unauthorized use of a sound
recording is actionable. Defendants argued that only a reproduction of the complete recording
was an infringement. The court rejected both claims, but ultimately concluded that plaintiffs had
established a prima facie claim of common law copyright infringement.
141
The court observed
that New York cases have acknowledged the existence of a fair use defense to common law
infringement claims but that no case had actually applied fair use in that context.
142
The court
recognized that fair use was generally unavailable as a defense with respect to unpublished
works, principally to protect the copyright owner’s right of first publication.
143
In the case of
sound recordings, however, common law copyright protection exists regardless of publication,
reasoned the court. “Thus, the erosion of the publication distinction in the context of sound
recordings vitiates the underlying rationale preventing application of pre-publication fair use.”
144
Accordingly, the court held that fair use was available as a defense to plaintiffs’ copyright
infringement claim.
140
2008 N.Y. Misc. Lexis 7485 (N.Y. Sup. Ct. Aug. 8, 2008).
141
Id. at *9.
142
Id. at *10.
143
Id. at *13 (citing Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 551 (1985)).
144
Id. at *14.
United States Copyright Office PRE-1972 SOUND RECORDINGS
35
The court turned for guidance to the federal law of fair use and specifically to the fair use
factors in 17 U.S.C. § 107 and the cases interpreting them.
145
The court ruled that defendants
were likely to prevail on their fair use defense, primarily because the use of the sound recording
excerpt in the film could be seen as transformative, conveying a critical message about the song
and the viewpoint it represents, and because there was little likely market effect from defendants’
use. Accordingly, the court denied the preliminary injunction.
146
Although just a trial court decision on a preliminary injunction motion, the EMI case
illustrates a judicial willingness to recognize a fair use defense in a common law copyright
infringement action, at least when recordings have been made available to the public.
147
b. Unfair competition/misappropriation
Many states have protected published pre-1972 sound recordings under common law
unfair competition principles. The tort of unfair competition has evolved over time.
Traditionally, three elements were required to establish the tort: (1) the plaintiff and defendant
had to be in competition with one another; (2) the defendant must have “appropriated a business
asset that plaintiff had acquired by the investment of skill, money, time and effort”;
148
and (3) the
145
Id. at *18. The statutory factors, set out in 17 U.S.C. § 107, are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or
is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
146
The court also denied defendants’ motion to dismiss, holding that plaintiffs had adequately pleaded
both common law copyright infringement and unfair competition because they argued, inter alia, that
defendants used the recording in a manner that falsely suggested to the public that the use was authorized
by the right holder. Id. at **38, 40.
147
Fair use developed as a common law doctrine, and only became part of the federal copyright statute in
the 1976 Copyright Act. See, e.g., Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841).
148
Ringer at 17.
United States Copyright Office PRE-1972 SOUND RECORDINGS
36
defendant must have fraudulently “passed off” or “palmed off” the appropriated assets as those of
plaintiff, causing the public to be confused as to the source of the goods.
149
Over time the courts in many (but not all) states dispensed with the requirement of
“passing off” in cases involving misappropriation in general (and sound recordings in particular),
in part because it is difficult to establish: “there is rarely any incentive for the appropriator to
represent the recording as anything except exactly what it is.”
150
In order to achieve equitable
results, some courts also dispensed with the requirement of competition, because it is difficult for
performers to establish that they are in competition with the appropriator. So the core of the tort
as it applies to sound recordings is the misappropriation of plaintiff’s business asset.
151
Some
courts still refer to this tort as unfair competition, others as misappropriation.
The following cases – from California, Illinois, Michigan, New Jersey and North
Carolina – illustrate the application of unfair competition principles to sound recordings.
152
149
Id.; see, e.g., Victor Talking Mach. Co. v. Armstrong, 132 F. 711 (S.D.N.Y. 1904).
150
Ringer at 17. In many cases defendants tried to escape liability by affixing distinctive labels to avoid
the charge of passing off, but those efforts were generally unavailing, as courts held that a claim for unfair
competition could still lie. Compare Columbia Broadcasting System, Inc. v. Melody Recordings, Inc., 341
A.2d 345 (N.J. App. Div. 1975) and Capitol Records v. Erickson, 2 Cal. App. 3d 526 (Ct. App. 1969) with
ABKCO Music, Inc. v. Washington, 2011 U.S. Dist. LEXIS 120081 (E.D. Mich. Oct. 18, 2011) (discussed
below).
151
Id. “Passing off” remains a viable cause of action. Common law unfair competition in effect evolved
into two principal torts: passing off, which requires a showing of consumer confusion, and
misappropriation, which does not.
152
Prior to Capitol Records v. Naxos, New York courts also protected pre-1972 sound recordings on
common law unfair competition grounds.
See, e.g., Arista Records, Inc. v. MP3Board, Inc., 2002 U.S. Dist.
Lexis 16165, at **36-37, 2002 WL 1997918 (S.D.N.Y. Aug. 29, 2002) (plaintiff stated a claim for unfair
competition under New York law against operator of an internet site that provided users with pirated copies
of plaintiff’s pre-1972 musical recordings); Capitol Records, Inc. v. Greatest Records, Inc., 252 N.Y.S.2d
553 (Sup. Ct. 1964) (entering temporary injunction against manufacture and distribution of unauthorized
reproductions of Beatles albums and holding, inter alia, that the application of state unfair competition law
to this field remains intact after the Supreme Court’s decisions in Sears, Roebuck & Co. v. Stiffel Co. and
Compco Corp. v. Day-Brite Lighting, Inc.). In several of the cases discussed above, the courts struggled
with the question whether Sears and Compco precluded a state law unfair competition claim with respect
to sound recordings, and ultimately concluded that they did not. The Supreme Court in Goldstein
concluded that those cases did not pose a bar to state protection of sound recordings. 412 U.S. at 569-70.
United States Copyright Office PRE-1972 SOUND RECORDINGS
37
In Capitol Records, Inc. v. Erickson,
153
the court held that relief on the grounds of unfair
competition could be granted in circumstances where someone “unfairly appropriates to his profit
the valuable efforts of his competitor” even where the defendant did not “palm off” his products
as those of his competitor.
154
The defendant had purchased tapes and recordings sold by the
plaintiff, remastered them, and then sold tapes made from the new masters in competition with
the plaintiff. The California trial court granted the plaintiff’s motion for a preliminary injunction,
and the appellate court affirmed. The plaintiff had argued that labels on the tapes it sold,
disclaiming any relationship with the plaintiff or the recording artists, protected it from a claim of
unfair competition, a contention rejected by the court. Although there was a question of fact as to
whether the labels were effective, the court found that the rights involved were not merely those
of the public not to be misled but also rights as between plaintiff and defendant. The court
concluded that defendant “unfairly appropriate[d] artistic performances produced by Capitol’s
efforts” and “profit[ed] thereby to the disadvantage of Capitol.”
155
In Capitol Records, Inc. v. Spies,
156
an Illinois appellate court held that the unauthorized
recording and resale of commercial sound recordings constituted wrongful appropriation and
unfair competition. The defendant had purchased plaintiff’s records and tapes in retail stores,
then made and sold 1500 unauthorized copies. The court cited several cases, including Capitol
Records v. Erickson, discussed above, in support of its conclusion that defendants had engaged in
unfair competition. In the court’s view, the unfairness inhered in the fact that the defendants
waited until the recordings, created by the plaintiff at great expense, became popular, and then
appropriated the plaintiffs’ products to take advantage of the existing market.
153
2 Cal. App. 3d 526 (Ct. App. 1969).
154
Id. at 537-38.
155
Id. at 537.
156
264 N.E.2d 874 (Ill. App. Ct. 1970). For further discussion of this case, see BESEK COMMERCIAL
SOUND RECORDINGS STUDY App. n.13 and accompanying text.
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38
In A&M Records, Inc. v. M.V.C. Distributing Corp.,
157
the U.S. Court of Appeals for the
Sixth Circuit upheld the district court’s ruling that defendant’s alleged conduct constituted unfair
competition under the common law of Michigan, rejecting defendant’s claim that plaintiffs lost
their common law property rights when they distributed their recording.
158
The defendants had
engaged in unauthorized duplication of the plaintiff’s sound recordings, which the defendants
distributed under a different label. On the other hand, in ABKCO Music v. Washington,
159
decided in October 2011, a Michigan district court concluded that the gist of an unfair
competition claim is “that the public is so misled that plaintiff loses some trade by reason of the
deception.”
160
The court denied summary judgment to plaintiffs on their claim of unfair
competition based on defendants’ use of plaintiffs’ pre-1972 sound recordings in an online
audiovisual advertisement for a play. The plaintiffs claimed that the ad led the public to believe
that the plaintiffs sponsored or supported the advertisement and the play. But in the court’s view,
they provided no evidence to back up their allegations, nor did they cite case law to support a
finding that defendants can be liable under a common law unfair competition theory for such
conduct.
In Columbia Broadcasting System Inc. v. Melody Recordings, Inc.,
161
a record piracy case
that arose in New Jersey, the court affirmed the trial court’s grant of summary judgment to CBS
on common law unfair competition grounds, rejecting the defendants’ claim that because their
157
574 F.2d 312 (6th Cir. 1978).
158
Id. at 314.
159
2011 U.S. Dist. LEXIS 120081 (E.D. Mich. Oct. 18, 2011).
160
Id. at *30 (citing Revlon, Inc. v. Regal Pharmacy, Inc., 29 F.R.D. 169, 174 (E.D. Mich. 1961)).
161
341 A.2d 348 (N.J. Super. Ct. App. Div. 1975).
United States Copyright Office PRE-1972 SOUND RECORDINGS
39
recordings were clearly labeled, there was no palming off and therefore no unfair competition.
162
The court observed that:
The actionable unfairness of this practice inheres in a combination of factors—
the substantial investment of time, labor, money and creative resources in the
product by plaintiff, the utilization of the actual product by defendant, the
misappropriation or use of the appropriated product by defendant in competition
with plaintiff, and commercial damage to plaintiff.
163
In Liberty/UA, Inc. v. Eastern Tape Corp.,
164
a North Carolina appellate court held that
record piracy constitutes unfair competition in that state. Defendants had copied plaintiff’s
records onto tapes and sold the tapes in competition with plaintiff. According to the court,
defendants’ appropriation of the fruits of plaintiff's initiative, skill, and investment provided them
with a significant competitive advantage over plaintiff and damaged plaintiff’s business.
165
The
court found that “[t]his conduct . . . amounts to unfair competition and is subject to restraint.”
166
Defendants also argued that the North Carolina statute mentioned above (which abrogates any
common law rights to obtain royalties on the commercial use of sound recordings embodying
musical performances once copies of the sound recordings are sold)
167
precluded the court from
holding that defendants’ conduct constituted unfair competition. The court held that the statute
was designed to eliminate any common law right that would restrict playing a recording sold for
use in the state. But to hold that the statute permitted duplicating a recording and selling it in
162
CBS had sued the defendants, who were copying CBS recordings and selling them – with defendants’
own distinctive label – to distributors.
163
Id. at 354. The court also rejected defendants’ contention that the Supreme Court’s decision in
Goldstein permitted the states to regulate only through statutes, and not by common law. Id. at 351.
164
180 S.E.2d 414 (N.C. Ct. App. 1971).
165
Id. at 415-16.
166
Id. at 416.
167
See N.C. GEN. STAT. § 66-28 (2010). See supra note 122 for the full text of the statute.
United States Copyright Office PRE-1972 SOUND RECORDINGS
40
competition with the original “would, in our opinion, give a construction to the statute that was
never intended.”
168
Not all states have civil statutes or reported cases dealing specifically with the
unauthorized use of sound recordings, but states generally recognize unfair competition torts, so
presumably a cause of action could lie in appropriate circumstances.
c. Conversion
The tort of conversion generally applies to the unauthorized and wrongful assumption of
control of another’s personal property in a way that seriously interferes with or effectively
repudiates the owner’s rights.
169
While in most states conversion applies only to tangible
property and not to intellectual property,
170
a few states have recognized conversion claims with
respect to the unauthorized duplication and distribution of pre-1972 sound recordings.
For example, in A & M Records, Inc. v. Heilman
171
defendant duplicated plaintiff’s
records and tapes and distributed them without authorization. The California appellate court
affirmed judgment for plaintiff, stating defendant’s conduct constituted unfair competition even
though there was no “palming off.”
172
The court further concluded that the “misappropriation and
sale of the intangible property of another without authority from the owner is conversion.”
173
Accordingly, the court held that there was a valid basis for placing a constructive trust on the
money defendant made from selling copies of plaintiff’s recordings.
168
Liberty/UA, 180 S.E.2d at 418.
169
18 Am. Jur. 2d Conversion § 1 (2004).
170
JASZI STUDY at 19 (citing 1 NIMMER ON COPYRIGHT § 1.01[B][1][i]).
171
75 Cal. App. 3d 554 (1977).
172
Id. at 564.
173
Id. at 570.
United States Copyright Office PRE-1972 SOUND RECORDINGS
41
In CBS, Inc. v. Garrod,
174
another record piracy case, the court granted plaintiff’s motion
for partial summary judgment on its conversion claim, holding that “[i]n Florida, an action for
conversion will lie for a ‘wrongful taking of intangible interests in a business venture.’”
175
4. Right of Publicity
The right of publicity protects against unauthorized use of someone’s identity, which in
some cases has been held to include duplication of a voice – at least where the voice is distinctive
and recognizable. Many states protect an individual’s right of publicity though statutes, common
law, or both, although such protection may flow from privacy laws rather than laws specifically
denominated “right of publicity.” For example, New York protects the right of publicity by
means of section 51 of its Civil Rights Law, which prohibits, inter alia, use of a person’s “name,
portrait, picture or voice . . . within [New York] for advertising purposes or for the purposes of
trade” without that person’s consent.
176
New York does not, however, recognize any common
law right of publicity claims. Michigan has no statutory right of publicity, but does recognize
common law right of publicity.
177
California provides both statutory protection for the right of
publicity (which extends to name, voice, signature, photograph or likeness)
178
and common law
protection, which may extend to aspects of an individual’s persona that its statute does not
reach.
179
174
622 F. Supp. 532 (M.D. Fla. 1985), aff'd, 803 F.2d 1183 (11th Cir. 1986).
175
Id. at 536 (citing In re Estate of Corbin, 391 So.2d 731, 732-33 (Fla. Dist. Ct. App. 1980)). The court
also granted summary judgment on plaintiff’s other claims, including common law copyright, unfair
competition and statutory theft.
176
N.Y. CIV. RIGHTS LAW § 51 (McKinney 2011). Section 50 of New York’s Civil Rights Law is an
accompanying criminal provision. Id. § 50.
177
See, e.g., Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 834 n.1 (6th Cir. 1983).
178
CAL. CIV. CODE § 3344 (West 2011).
179
See, e.g., White v. Samsung Electronics America, 971 F.2d 1395, 1398 (9th Cir. 1992) (reversing
summary judgment against game show hostess Vanna White in connection with an ad showing a blond
United States Copyright Office PRE-1972 SOUND RECORDINGS
42
Although a few states, such as New York and California, explicitly include “voice”
among the attributes of identity entitled to protection, most do not.
180
Some state laws do not list
specific protectable attributes, but extend generally to, for example, “aspect[s] of an individual’s
persona.”
181
In such cases, a distinctive voice might be entitled to protection even though “voice”
is not specifically mentioned in the law. In certain circumstances, state courts have extended
protection to forbid sound-alike recordings, thus providing broader protection than federal law
provides for copyright-protected sound recordings.
182
In general the right of publicity protects against use of someone’s identity for advertising
or commercial purposes.
183
Record piracy clearly qualifies as use for commercial purposes, and
therefore in some states a right of publicity claim might be asserted based on use of the
performer’s voice. Nevertheless, plaintiffs in state law record piracy cases have generally relied
instead on common law copyright and unfair competition claims.
184
Presumably this is in part
because the right of publicity concerns not the use of a particular sound recording per se, but
rather the use or imitation of a particular performer’s voice, sometimes in connection with the
imitation of a particular recording. The owner of the right of publicity – the performer – will not
robot in conjunction with a game board, and holding that the common law right of publicity “does not
require that appropriations of identity be accomplished through particular means to be actionable”).
180
See, e.g., FLA. STAT. § 540.08 (2011) (protecting name, portrait, photograph, or other likeness); VA.
CODE ANN. § 8.01-40(A) (2011) (protecting name, portrait, picture).
181
OHIO REV. CODE ANN. § 2741.02 (West 2011); see also 765 ILL. COMP. STAT. 1075/30 (2011)
(protecting a person’s “identity”).
182
Compare Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir. 1988) (applying common law right of
publicity to protect widely known professional singer from deliberate imitation of her distinctive voice in
television advertisement) with 17 U.S.C. § 114(b) (exclusive right of the owner of a sound recording is
limited to the right to duplicate in a manner that recaptures the actual sounds fixed in the recording).
183
See, e.g., FLA. STAT. § 540.08 (2011) (providing protection against use of a person’s name, portrait,
photograph or other likeness “for any commercial or advertising purpose”); 765 I
LL. COMP. STAT.
§ 1075/10 (2011) (providing protection against use of an individual’s identity “for commercial purposes”);
N.Y.
CIV. RIGHTS LAW § 51 (McKinney 2011) (providing protection against use of someone’s name,
portrait, picture or voice “for advertising purposes or for purposes of trade”).
184
For a further discussion of state law rights of publicity in the context of pre-1972 sound recordings, see
J
ASZI STUDY at 20-22.
United States Copyright Office PRE-1972 SOUND RECORDINGS
43
necessarily be the owner of the common law rights in the recording or have standing to assert an
unfair competition claim based on unauthorized use of the recording.
5. Variations among States with Respect to Civil Claims: Rights and
Exceptions
There are significant variations among states (and ambiguities in the law within states)
concerning (1) the nature of the activities that might be deemed to unfairly compete with another
or violate a common law copyright – i.e., whether the “bundle of rights” is similar under state and
federal law; and (2) whether exceptions exist under state civil law for certain uses, as they do
under federal copyright law.
Concerning the former point, most of the reported cases deal with reproduction and
distribution of copies of sound recordings, and it is clear that state law rights extend to such
activities. But because most cases involve reproduction and distribution of entire recordings,
there is no developed body of law addressing whether a “derivative work right” can be said to
exist. A few cases suggest that copying less than an entire recording can be infringing. For
example, in EMI Records, Ltc. v. Premise Media Corp.,
185
discussed above, the court rejected
defendant’s argument that common law copyright protected only against reproduction of an entire
sound recording, although it ultimately concluded that defendants’ copying of 15 seconds of
plaintiffs’ recording was fair use. In Bridgeport Music, Inc. v. Justin Combs Publishing,
186
the
court upheld a jury verdict against a defendant that sampled a portion of a pre-1972 sound
recording in a new work. And in Capitol Records v. Naxos, discussed above, one of the questions
certified to the New York Court of Appeals was whether a claim of common law copyright
infringement was defeated by showing that plaintiff’s work has little market value and
185
2008 N.Y. Misc. LEXIS 7485 (Sup. Ct. Aug. 8, 2008). See discussion supra in text accompanying
notes 140-146.
186
507 F.3d 470 (6th Cir. 2007).
United States Copyright Office PRE-1972 SOUND RECORDINGS
44
“defendant’s work, although using components of plaintiff’s work, is fairly to be regarded as a
‘new product.’”
187
The court concluded, in the context of common law copyright, that “even
assuming that Naxos has created a ‘new product’ due to its remastering efforts that enhance
sound quality, that product can be deemed to infringe on Capitol’s copyright to the extent that it
utilizes the original elements of the protected performances.”
188
A different result might prevail, however, if the claim were based in unfair competition
rather than common law copyright. The federal district court that first heard the Capitol Records
v. Naxos case dismissed plaintiff’s unfair competition claim for several reasons, among them that
Naxos was not merely duplicating the recordings and capitalizing on plaintiff’s efforts, as was the
situation in most record piracy cases.
189
Instead, the court concluded that Naxos had invested
significant time, effort and money to produce high-quality restorations, of plaintiff’s recordings,
which could not have been marketed in their pre-existing state.
190
While the New York Court of
Appeals effectively reversed this case, the federal district court decision suggests that a derivative
work right is on less certain ground where the asserted claim is unfair competition rather than
common law copyright.
In general, state law does not appear to recognize a performance right in sound
recordings. The Pennsylvania Supreme Court in Waring v. WDAS Broad. Station
191
suggested
that one could obtain indirect public performance rights in sound recordings through the use of a
restrictive legend on the sound recording prohibiting radio broadcast. Yet other states rejected
187
830 N.E.2d at 254.
188
Id. at 267.
189
Capitol Records, Inc. v. Naxos of America, 262 F. Supp. 2d 204 (S.D.N.Y. 2003), summary judgment
granted, 274 F. Supp. 2d 472 (S.D.N.Y. 2003), question certified, 372 F.3d 471 (2d Cir.), certified question
accepted, 3 N.Y.3d 666, 817 N.E.2d 820, 784 N.Y.S.2d 3 (N.Y. 2004), and certified question answered, 4
N.Y.3d 540, 830 N.E.2d 250, 797 N.Y.S.2d 352 (N.Y. 2005).
190
262 F. Supp. 2d at 214-15.
191
194 A. 631 (Pa. 1937).
United States Copyright Office PRE-1972 SOUND RECORDINGS
45
this conclusion. For example, in RCA Mfg. Co. v. Whiteman,
192
the Second Circuit declined to
follow Waring v. WDAS and held that a record company had no power to impose such a
restriction on use of the sound recordings because the common law property right in the
performances ended with the sale of the records.
In Waring v. Dunlea, a federal district court in North Carolina did enforce a restrictive
legend on sound recordings.
193
However, shortly after the case was decided, North Carolina
enacted a statute that effectively overruled it.
194
South Carolina also enacted a statute to deny a
public performance right in sound recordings.
195
Until 1995 there was no public performance right in sound recordings under federal law,
and it does not appear that, in practice, pre-1972 sound recordings had such protection. The
current right provided by federal law applies only to digital audio transmissions (not to
broadcasts) of copyrighted sound recordings. It is possible that a state court would entertain a
claim for unfair competition or common law copyright infringement if, for example, it were faced
with a claim that pre-1972 sound recordings were being made available through internet
streaming, particularly if it were persuaded that the use was substituting for purchases of the
plaintiff’s recording. But no such case has yet arisen.
196
192
114 F.2d 86, 89-90 (2d Cir. 1940).
193
Waring v. Dunlea, 26 F. Supp. 338, 339 (E.D.N.C. 1939).
194
N.C. GEN. STAT. § 66-28 (2010), passed in 1939 and discussed in Liberty/UA, 180 S.E. 2d at 418. The
court interpreted the statute to deny only public performance rights, but not reproduction rights. See id.
195
S.C. CODE ANN. § 39-3-510 (2011). This law, originally passed in 1942, remains on the books. See
Ringer at 9; Michael Erlinger, Jr., An Analog Solution in A Digital World: Providing Federal Copyright
Protection for Pre-1972 Sound Recordings, 16 UCLA
ENT. L. REV. 45, 55 (2009).
196
It appears that at least some webcasters are making royalty payments for the use of pre-1972 sound
recordings as part of the statutory royalties they pay to SoundExchange in connection with the digital
performance of sound recordings pursuant to sections 112 and 114. SoundExchange at 4. Presumably this
is done to diminish the risk that their webcasting of pre-1972 sound recordings might be considered
actionable under state law.
United States Copyright Office PRE-1972 SOUND RECORDINGS
46
As for exceptions, where state law is statutory there may be explicit exceptions, but not
of the nature and scope of those provided in federal copyright law, as illustrated above in the
discussion of state criminal and civil statutes. Where protection derives from common law, it is
difficult to draw any conclusions about available exceptions, since most of the cases involve
commercial, for-profit duplication and sale of complete sound recordings that substitute for sales
by the right holders. So the courts have had little opportunity to define exceptions. EMI v.
Premise Media indicates that common law courts are willing to apply the fair use doctrine in
appropriate circumstances, but it is a single trial court decision.
6. Availability of Punitive Damages for State Law Claims
In those states that allow punitive damages in tort cases, a plaintiff who is successful on a
claim for unfair competition may recover punitive damages.
197
Nimmer on Copyright states that
punitive damages may also be available for common law copyright claims: “Even though
punitive damages are not available for statutory copyright infringement, in the residual domain of
common law copyright, exemplary damages may be recovered.”
198
In some cases, punitive
damages have been awarded in connection with unauthorized uses of pre-1972 sound recordings.
For example, in Bridgeport Music v. Justin Combs Publishing,
199
the court affirmed a jury verdict
in which defendants were held liable for sampling plaintiff’s pre-1972 sound recording in
defendant’s recording. Applying New York law, the Sixth Circuit held that “punitive damages
for common law copyright infringement and unfair competition are available ‘where a wrong is
197
Restatement (3d) of Unfair Competition, § 36, comment (n); Thomas McCarthy, MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 30:96 (4th ed. 2009).
198
4-14 NIMMER ON COPYRIGHT § 14.02[C][2]. See, e.g., Roy Export Co. Establishment v. Columbia
Broadcasting System, Inc., 503 F. Supp. 1137 (S.D.N.Y. 1980), aff’d, 672 F.2d 1095 (2d Cir.); Williams v.
Weisser, 273 Cal. App. 2d 726, 743 (1969). In addition, “Under the law of most states, punitive or
exemplary damages may be obtained in privacy and publicity suits.” 2 Thomas McCarthy, R
IGHTS OF
PUBLICITY AND PRIVACY § 11:36 (2d ed).
199
507 F.3d 470 (6th Cir. 2007).
United States Copyright Office PRE-1972 SOUND RECORDINGS
47
aggravated by recklessness or willfulness.’”
200
However, it vacated the damages award as grossly
excessive.
201
In GAI Audio of New York, Inc. v. Columbia Broadcasting System, Inc., a Maryland
appellate court affirmed the jury’s award of punitive damages in a record piracy case where the
“acts of unfair competition were practiced intentionally, wantonly and without legal justification
or excuse.”
202
7. Summary: Use of Pre-1972 Sound Recordings under State Law
There are several important points to be drawn from this brief discussion. First, state
laws that relate to sound recordings are inconsistent. The variations in state criminal laws are
discussed above. Concerning civil law, some states have statutes that address the unauthorized
use of pre-1972 sound recordings. In most states, common law torts provide protection. Where
the basis is unfair competition or misappropriation, the claims that can be brought under state law
may be more limited than those that could be brought under federal copyright law, particularly in
a state that still requires competition or passing off as part of the tort. The requirement in unfair
competition cases that commercial harm to the right holder (and/or commercial benefit to the
user) be established also limits possible claims. As a practical matter, many sound recordings
will lose protection over time as their commercial value diminishes, even though state law can
theoretically protect sound recordings until 2067. A few states terminate protection for sound
recordings before 2067, but that may be of little value to users whose uses go beyond the state’s
border.
200
Id. at 479-80 (quoting Roy Export Co. v. CBS, Inc., 672 F.2d 1095, 1106 (2d Cir. 1982)).
201
See id. at 486-90. On remand the district court remitted the amount of punitive damages to $688,500
(twice the amount of compensatory damages) instead of the $3.5 million the jury had awarded. Westbound
Records, Inc. v. Justin Combs Publishing, Inc., 2009 U.S. Dist. LEXIS 29507, **5-8, 2009 WL 943516
(M.D. Tenn. Apr. 3, 2009).
202
340 A.2d 736, 755 (Md. App. 1975); see also A&M Records v. Heilman, 75 Cal. App. 3d 554, 571
(1977) (affirming award of punitive damages in a record piracy case where there was an “intentional
pattern of misappropriation of property owned by others” as well as contempt of court).
United States Copyright Office PRE-1972 SOUND RECORDINGS
48
Common law copyright provides greater protection for right holders, and
correspondingly, greater challenges for users. For example, New York has chosen to provide
common law protection for pre-1972 sound recordings, whether or not the recordings have been
published.
Many other states simply have no civil law directly on point, so it is difficult to know
how they might protect pre-1972 sound recordings. Even states that protect published recordings
through unfair competition and similar torts may protect unpublished recordings under common
law copyright.
One complicating factor is that common law protection is amorphous, and courts often
perceive themselves to have broad discretion. So it is sometimes hard to know whether new uses
might be problematic. As the Supreme Court of Wisconsin stated in permitting plaintiffs to
proceed with an unfair competition claim for record piracy in the face of defendants’ argument
that the state could act in this area only through the legislature: “We conclude that it is the duty
of this court to act in circumstances where it is apparent that a wrong has been committed. . . .”
203
The court observed that “‘unfair competition has evolved as a broad and flexible doctrine with a
capacity for further growth to meet changing conditions.’”
204
In short, the protections that state law provides for pre-1972 sound recordings are
inconsistent and sometimes vague and difficult to discern. The laws lack clearly delineated
exceptions, making it hard for users to predict with assurance the range of activities that are
permissible and those that are likely to result in liability. In many states, activities concerning
sound recordings that are not conducted for profit and have no commercial impact on the right
holder are unlikely to result in liability. But the differences and ambiguities in state laws make it
203
Mercury Record Productions, Inc. v. Economic Consultants, Inc., 64 Wis.2d 163, 218 N.W.2d 705,
715-16 (Wis. 1974).
204
Id. at 716 (quoting Metropolitan Opera Ass'n v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101
N.Y.S.2d 483, 488 (Sup. Ct. 1950), aff'd, 107 N.Y.S.2d 795 (App. Div. 1951).
United States Copyright Office PRE-1972 SOUND RECORDINGS
49
difficult to undertake multistate or nationwide activities, particularly for individuals and entities
that are risk-averse or that lack the ability to conduct detailed legal analyses for each proposed
new use.
United States Copyright Office PRE-1972 SOUND RECORDINGS
50
Lacquer disc
III. APPRECIATING THE CHALLENGES OF PRESERVATION AND ACCESS
A. The Nature of Pre-1972 Sound Recordings
The recordings addressed in this Report encompass every conceivable sound, from one
person talking, to music played by orchestras of over 100 pieces; from a primitive wax cylinder
field recording to the detailed sound-picture of a multitrack analog studio recording; from the
music of small ethnic enclaves to million-selling pop hits; from improvisation to composition,
and so on. Notably, unlike other works of authorship protected by federal copyright law, virtually
no pre-1972 sound recordings have entered the public domain throughout the United States. State
criminal and civil law appear to protect almost everything back to the very first sound recordings
known to exist.
1. Commercial and Noncommercial Recordings
While the first sound recording is now known to have been fixed in 1860 by Frenchman
Edourd-Leon Scott de Martinville,
205
sound recording in the United States famously began in
205
NRPB REPORT at 1.
United States Copyright Office PRE-1972 SOUND RECORDINGS
51
1877 with Thomas Edison’s invention of the phonograph.
206
However, the sale of recorded sound
did not get underway until 1889 when the North American Phonograph Co. first offered recorded
music for public sale. It was joined later that year in the marketplace by the new Columbia
Phonograph Co.
207
Sound recordings in the early years of the industry were manufactured on
wax cylinders. Cylinders in the 1890s contained a single selection and sold – like single MP3s do
today – for between $1 and $2.
208
However, most early-1890s cylinders were not heard in private
homes but on public phonographs – the predecessors to jukeboxes – for a nickel.
209
In the early
years of the 20th century, cylinders gave way to discs, which were easier to mass-produce,
cheaper, more durable, and could hold twice as much music as an Edison cylinder, and a new
breed of celebrity – the recording artist – emerged.
210
The disc – in varying sizes and durability –
remained the primary consumer medium for sound recordings through 1972,
211
although the
media upon which the recordings were made went through myriad changes over time before
settling on multitrack magnetic tape.
Commercial music recordings tend to dominate discussions of copyright in sound
recordings because of their popularity, their tendency to create emotional attachments, and their
existence as the basis for a multi-billion dollar international industry, but they account for only a
206
See, e.g., WALTER L. WELCH & LEAH BRODBECK STENZEL BURT, FROM TINFOIL TO STEREO 8-18
(1994).
207
See Tim Brooks, Columbia Records in the 1890s: Founding the Record Industry, 10 ASS’N FOR
RECORDED SOUND COLLECTIONS JOURNAL, No. 1, 3, 5-6 (1978).
208
See id. at 9.
209
See id.
210
See, e.g., DAVID SUISMAN, SELLING SOUNDS: THE COMMERCIAL REVOLUTION IN AMERICAN MUSIC
125-49 (2009).
211
Of course, discs, either vinyl or compact, continued to be the primary medium well after 1972, but this
report is only concerned with pre-1972 works.
United States Copyright Office PRE-1972 SOUND RECORDINGS
52
small percentage of all pre-1972 works.
212
Noncommercial recordings, such as ethnographic field
recordings, oral histories, private home recordings, and scientific audio experiments, while not as
evident to the general public, are an enormous source of cultural and historical information, and
come with their own unique copyright issues.
The first ethnographic recordings were made one year after the first commercial
recordings, in 1890. Anthropologist Jesse Walter Fewkes recorded songs and speech from the
Passamaquoddy, Zuni, and Hopi tribes with a wind-up Edison cylinder recorder.
213
Field
recordings from 1890 into the 1930s exist mainly on wax cylinders. With the advent of the
portable disc cutter, ethnomusicologists made their transcriptions on discs of varying quality, and
once audiotape was made available commercially, it soon became the recording medium of
choice – first in reel-to-reel and then in cassette form.
214
The development of tape recording, and
in particular the portable cassette recorder, spurred ethnographic audio collecting to such a large
degree that by 2000 approximately 90% of all sound recordings held in folkloric collections were
on cassette.
215
2. Published and Unpublished Works
Not only can pre-1972 sound recordings be either commercial or noncommercial, but
they also can be either published or unpublished.
216
Most commercial recordings are, as one
212
See, e.g., Society of American Archivists (SAA) at 1.
213
NRPB REPORT at 16-17.
214
See id. at 17.
215
See id. at 18 (citing COUNCIL ON LIBRARY AND INFORMATION RESOURCES, FOLK HERITAGE
COLLECTIONS IN CRISIS 59-63 (2001)).
216
In this discussion “publication” is used as defined in the federal copyright law:
the distribution of copies or phonorecords of a work to the public by sale or other transfer
of ownership, or by rental, lease, or lending. The offering to distribute copies or
phonorecords to a group of persons for purposes of further distribution, public
United States Copyright Office PRE-1972 SOUND RECORDINGS
53
would expect, considered to be published works, and most noncommercial recordings are
considered to be unpublished. According to the Society for American Archivists, of the 46
million sound recordings housed in American cultural institutions, the majority are
unpublished.
217
Furthermore, such unpublished recordings “far surpass the number of
commercially published sound recordings that have ever been released.”
218
The unpublished
nature of most pre-1972 sound recordings raises special concerns. It often makes identification of
a sound recording’s right holders difficult. Unpublished works also tend to exist in only one copy
and to reside with a single individual or institution, making their preservation and the provision of
public access much more important. In addition to “typical” unpublished works – field
recordings, oral histories, and other single-copy recordings – there are also what might be called
“pre-publication” works, such as those elements of commercial recordings that did not end up
becoming part of the distributed version of a work.
219
In addition, there are some commercial works that are considered unpublished, such as
radio broadcasts. Despite their broad reach and significant popularity throughout the 20th and
21st centuries, radio programs have been, and still are, considered “unpublished” under copyright
law because, with rare exceptions, they were not distributed in copies. Such works constitute a
broad and important source of historical information, from first-hand reports of notable news
events, to radio dramas, to one-of-a-kind transcriptions of performances by notable musicians.
performance, or public display, constitutes publication. A public performance or display
of a work does not of itself constitute publication.
This is important to note because, as will be shown below, states often assign different meanings to
“publication.” In some states, commercial sound recordings are considered to be technically unpublished
even when distributed to the public.
217
SAA at 1.
218
See id.
219
See, e.g., NRPB REPORT at 33 (quoting Paul West, vice president, studios and vault operations, digital
logistics and business services, Universal Music Group: “Only 65 to 75 percent of what is in our library has
ever been released”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
54
Unfortunately, because they were not distributed in copies, radio broadcasts are comparatively ill-
represented in the nation’s libraries and archives.
220
3. Availability and Location
Some pre-1972 sound recordings are widely available to consumers through digital
downloads, record stores, and new endeavors such as the Sony-Library of Congress “National
Jukebox,” where recordings made on thousands of pre-1925 cylinders and discs are posted online
for free streaming.
221
However, in part due to corporate consolidation and lack of concern over
the value of preserving recordings, many current record companies do not own physical copies of
those sound recordings to which they own the rights.
222
Thus, these recordings must be sought
out in libraries and archives. Other recordings, including many noncommercial and/or
unpublished works, are also available to hear in person at archives or music libraries. These
institutions hold an estimated 46 million recordings.
223
For commercial pre-1972 sound
recordings, there is much duplication among institutions. But those works residing in
institutional collections generally cannot, without permission from their copyright owners, be
made widely available through the internet or other channels, since the various state laws do not
generally include exceptions permitting such dissemination.
224
220
See id. at 4 (“Many recordings believed to have been made of radio broadcasts are untraceable, and
numerous transcription discs of national and local broadcasts have been destroyed.”).
221
The National Jukebox (www.loc.gov/jukebox) is a project that makes thousands of early U.S. sound
recordings available to the public for free streaming access. It consists of recordings made by labels now
owned by Sony Music Entertainment, which provided the Library of Congress a gratis license. The actual
recordings are from the collections of the Library’s Packard Campus for Audio Visual Conservation, the
University of California Santa Barbara, and other partners. The Jukebox was launched on May 10, 2011
with 10,000 recordings from the Victor Talking Machine Company, which date from the 1890-1925
“acoustical” era, and include the classical, popular, religious, spoken word, and “ethnic characterization”
genres. More recordings are expected to be added in the coming years.
222
See, e.g., Library of Congress (LOC) at 6-7.
223
NRPB REPORT at 10.
224
For the application of state sound recording protection to public availability, see supra Chapter II.E.
United States Copyright Office PRE-1972 SOUND RECORDINGS
55
Many pre-1972 commercial sound recordings are in the hands of individual collectors,
who hold what is estimated to be the majority of commercially issued sound recordings, including
“some of the most significant, as well as rarest” items.
225
While at least one major collector has
in the past taped items in his collection for interested listeners,
226
it is unknown how common
such a practice is. Certainly private collectors are the sources of many record company reissues,
as they have the cleanest or only copies of some titles.
227
Finally, while there are a few significant collections of commercial radio broadcasts
residing in libraries and archives in the United States, they are far from complete.
228
Availability
of these collections is generally restricted to on-premises listening.
229
As for public radio and
local radio stations, they retain thousands of hours of programming in their vaults, although the
digitization of these programs has just begun.
230
One additional source for copies of radio
broadcasts is private collectors, who are estimated to hold tens of thousands of recordings, many
of which are not represented in institutional collections.
231
225
NRPB REPORT at 35-36. The relationship between private collectors and institutions is described
below. See infra Chapter III.C.1.c.
226
Eddie Dean, Desperate Man Blues: Record Collector Joe Bussard Parties Like It’s 1929, WASHINGTON
CITY PAPER, Feb. 12, 1999, available at http://www.washingtoncitypaper.com/articles/16690/desperate-
man-blues.
227
See id.
228
For example, a significant portion of NBC broadcasts from the 1930s through the 1970s is held at the
Library of Congress, and smaller collections of ABC and Mutual Network transcriptions have been saved,
but no extensive archive of CBS transcriptions is known to exist. NRPB R
EPORT at 21-22.
229
See id. at 23, noting that dissemination of the NBC collection at the Library of Congress is “tightly
restricted.”
230
See id. at 26-29, describing the holdings of WNYC, WGBH, Pacifica, and WWOZ.
231
See id. at 30.
United States Copyright Office PRE-1972 SOUND RECORDINGS
56
4. Recording Media and Deterioration Rates for Pre-1972 Sound
Recordings
All sound recording media, from the earliest to the most recent, are at risk of
deterioration or breakage that may render them unplayable. The chart below, prepared by the
staff of the Library of Congress Packard Campus for Audio Visual Conservation, outlines the
major media that were used to record sound prior to 1972, the major components of each
medium’s composition, and the chemical and/or physical processes that place them at risk.
Essential to the long-term survival of all audio media, but not listed below, are proper
housing – shelving and packaging – of audio media, and appropriate temperature and humidity
that do not fluctuate greatly. Improper storage conditions, such as excessive heat or exposure to
water, are the most serious threats to long-term survival of all types of sound recordings.
232
Medium
Period of
Primary
Use
233
Content Composition Risks and Challenges
Wax
cylinders
1890-1925 Commercial
recordings of
music and
spoken word;
ethnographic
field
recordings;
dictation
Wax
compound,
metallic soap
composite
Fungal growth can deteriorate
and obstruct grooves. The
organic plasticizer can
experience exudation, causing
crazing,
234
and shrinkage of
playback surface is possible as
plasticizer is lost. Wax cylinders
are also fragile and susceptible
to damage from improper
232
Dietrich Schüller, Audio and Video Carriers Recording Principles, Storage and Handling, Maintenance
of Equipment, Format and Equipment Obsolescence, http://www.tape-
online.net/docs/audio_and_video_carriers.pdf (2008); Indiana University Digital Library Program, FACET
Formats Document: Format Characteristics and Preservation Problems,
http://www.dlib.indiana.edu/projects/sounddirections/facet/downloads.shtml
(2007); Bill Klinger, Cylinder
records: Significance, production, and survival, http://www.loc.gov/rr/record/nrpb/pdf/klinger.pdf/
(2007);
A
MERICAN FOLKLIFE CENTER, 1 THE FEDERAL CYLINDER PROJECT: A GUIDE TO FIELD CYLINDER
COLLECTIONS IN FEDERAL AGENCIES (1984).
233
Please note that the date ranges here reference approximate years of primary use. For instance, wax
cylinders were used for dictation into the 1960s, shellac 78-rpm discs were still being manufactured in the
early 1960s, and lacquer discs were used to record broadcasts by the NBC radio network until 1970.
234
Crazing is the making of small cracks on a surface. See THE AMERICAN COLLEGE DICTIONARY 283
(1968) (definition of “craze”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
57
Medium
Period of
Primary
Use
233
Content Composition Risks and Challenges
handling. Extremely fragile.
Celluloid
cylinders
(including
Edison "Blue
Amberol"
cylinders)
1900-1929 Commercial
recordings of
music, spoken
word, etc.
Nitrocellulose
celluloid with
plaster,
cardboard,
and other
cores
The plaster core can expand
through hydrolysis, making it
difficult to mount the cylinder on
the playback mandrel and can, in
severe cases, cause the celluloid
to break or split. The celluloid
becomes more brittle with age.
Catastrophic failure, such as
found in nitrocellulose film, is
uncommon.
Shellac discs,
78-rpm discs
1896-1950 Commercial
recordings of
music, spoken
word, etc.
Shellac-
bonded
mineral
powders;
other resins
also used
Until recently, believed to be
chemically stable, though
fragile.
235
Signal can be
significantly affected by
scratches, surface deformities,
and groove wear. Mold or other
fungal growth, heat, and water
can damage and obscure
grooves.
Aluminum
discs
1925-1935 “Live” events;
radio broadcast
transcriptions
Aluminum Oxidation; scarcity of playback
hardware (styluses).
Lacquer and
acetate discs
1936-1960 Radio
broadcast
transcriptions;
studio master
recordings
Aluminum,
glass, or
cardboard
with a lacquer
coating
Lacquer layer susceptible to
plasticizer exudation and/or
information layer delamination.
Aluminum base susceptible to
oxidation. Glass based discs, the
predominant instantaneous audio
medium during World War II,
are extremely fragile. Cardboard
base susceptible to water
damage. Discs susceptible to
crazing of lacquer layer
regardless of base material.
235
Discovering some degradation of shellac discs in its collection, the Bibliotheque nationale de France is
researching the composition of 78-rpm records. Among the challenges to the project are the great disparity
of compositions of recordings of different pressing companies, countries, and time periods. See Nguyen, et
al, Determining the composition of 78-rpm records: Challenge or fantasy? 42 A
SS’N FOR RECORDED
SOUND COLLECTIONS JOURNAL, No. 1 (2011).
United States Copyright Office PRE-1972 SOUND RECORDINGS
58
Medium
Period of
Primary
Use
233
Content Composition Risks and Challenges
Wire
recordings
1935-1945 Remote
recordings of
“live events”;
oral histories;
radio broadcast
transcriptions
Steel or
stainless steel
Technological obsolescence;
mechanical damage to wire
(tangling); rusting in rare cases.
Early, pre-standardized sizes not
compatible with common
playback equipment. Playback
equipment difficult to obtain and
maintain in working order.
Vinyl and
polystyrene
discs (33-1/3-
and 45-rpm)
1948-1990 Commercial
recordings of
music, spoken
word, etc.
Vinyl (co-
polymer of
polyvinyl
chloride and
polyvinyl
acetate) or
polystyrene
236
Chemically stable, though
material is relatively soft.
Susceptible to mechanical
damage such as scratching and
deformation due to improper
storage and handling.
Polystyrene becomes brittle with
age.
Acetate tape
1950s-
1960s
Restricted to
use in Germany
until late
1940s; radio
broadcasting
and recording
industry until
mid-1950s;
also used in
moving image
industry and
home
recording.
Cellulose
acetate (e.g.,
cellulose
diacetate,
cellulose
triacetate)
Becomes brittle with age.
Degrades in high humidity; both
the tape base and the binders
used are highly susceptible to
hydrolysis, in extreme cases this
is referred to as “vinegar
syndrome,” as cellulose acetate
is broken down to release acetic
acid. Vinegar syndrome causes
the tape base to shrink and
deform; “cupping” is a common
outcome of deformation. The
information layer can also
separate from the base. Both
processes can severely inhibit
playback.
Polyester
tape, open
reel and
cartridge
(including
audio
cassettes)
1965-2005 Commercial
recordings of
music, spoken
word, etc.
Polyester tape
within plastic
shells
Binder hydrolysis and
delamination of magnetic layer
possible, especially in improper
environmental conditions;
mechanical failure of cassette
shell; technological
obsolescence, access to quality
playback equipment becoming
limited in the US. Stretching
and deformation of base film
layer possible, though not
frequently reported.
236
The great majority of “LP” discs are vinyl, while most 45-rpm discs are made from polystyrene.
United States Copyright Office PRE-1972 SOUND RECORDINGS
59
The above chart provides some basis for understanding the urgency of users’ preservation
concerns, particularly regarding wax cylinders, lacquer and acetate discs, and acetate tape. It is
interesting to note that more recently developed media are not necessarily more robust than older
media, a point vividly illustrated by a comparison of the risks and challenges of shellac discs with
polyester tape. Subsequent chapters will show how the various stakeholders perceive that
federalization may (or may not) assist with the preservation and provision of access to pre-1972
sound recordings embodied on the media described above.
B. Preservation of Pre-1972 Sound Recordings
In the 21st Century, the preservation of sound recordings means, for all practical
purposes, digital preservation – specifically, copying a work from its native format to a digital
medium. Preservation is extremely important because sound recordings represent a key
component of our cultural heritage, and one that will be lost to posterity if efforts are not
undertaken to preserve old recordings and migrate them from what are often volatile and obsolete
media to more stable forms of fixation. It is this initial reproduction, and the related downstream
potential of distributing multiple perfect copies via the Internet, that invites copyright law into the
discussion. If preservation were nothing more than carefully cleaning and storing the original
media, copyright would be irrelevant to preservation. But because reproduction onto digital
media is becoming the most common means of preserving sound recordings (among other
media), copyright issues cannot be avoided.
The nuts-and-bolts of digital preservation are quite complex. As a report by the National
Recording Preservation Board describes it:
After capture of the source audio and creation of digital files, systems must
protect the files and assure their integrity, which requires periodic migration of
the files to new media, validations to assure that copies of the digital files are
faithful to the previous generations, and further steps to assure that these files are
United States Copyright Office PRE-1972 SOUND RECORDINGS
60
accessible in perpetuity. In other words, recorded sound preservation is a chain
and process without end.
237
The RIAA and A2IM agree that preservation is complex, noting that preparing a digital
reissue includes:
the costs of storage, review in realtime (of analog recording media) for missing
or incomplete metadata, data entry, cataloging, conversion/digitization using
carefully preserved obsolete equipment and storage media (i.e., preservation),
and, related overhead costs including legal fees (for the recordings and/or for
clearing underlying rights, such as compositions).
238
Regardless of who is doing it, digital preservation is clearly a difficult endeavor requiring
significant resources and technical skill.
1. Current Preservation Activities
For preservation of pre-1972 sound recordings, there are four important entities to
survey: record companies, libraries and archives, private collectors, and radio stations.
a. Libraries and archives
Preservation of sound recordings by libraries and archives is a primary focus of this
Report. These institutions and other stakeholders shared with the Copyright Office a great deal of
information about practices, technology, costs, and frustrations with legal analysis. However, it
is unclear in the context of “pure” preservation activities
239
whether the date a sound recording
was first fixed and its corresponding legal status actually matter to libraries and archives. Some
commenters report that the pre- or post-1972 status of a recording does not factor into a decision
237
NRPB REPORT at 9-10.
238
RIAA/A2IM at 8.
239
I.e., activities focusing solely on preservation, without regard to access.
United States Copyright Office PRE-1972 SOUND RECORDINGS
61
whether to digitize, and some report that it does.
240
There are also additional factors bearing upon
preservation of sound recordings by libraries and archives, such as the availability of technology
and money, specifically grant funding.
241
And such funding, as will be seen, is in part dependent
upon the access that the institution can provide to its preserved works. In addition, librarians and
archivists who deal with ethnographic materials must abide by the cultural and religious norms of
those whose voices and stories are on the recordings.
242
Much like a record company, a library or archive must have several sound recording
preservation specialists in order to create and maintain durable and high quality digital copies.
Only a few libraries – notably the Library of Congress and the University of California, Santa
Barbara – have sufficient resources to preserve the multiple media types on which pre-1972
sound recordings reside, such as wax cylinders and lacquer discs. In one notable partnership
between record companies and the Library of Congress – the National Jukebox – libraries are
providing the original recordings and undertaking the digitization, while Sony is providing the
permission to use the recordings that it owns. Because Sony now controls the catalogs of the
240
For assertions that the pre-1972 status of a recording does not affect its preservation, see, e.g., Music
Library Ass’n (MLA) at 6 (“[W]hile some libraries may consider the date of fixation when considering
preservation activities under §108(c), in most cases this would not be an important consideration for
preservation activities beyond isolated, single-item duplication.”) and SAA at 2 (“We have no data that
would suggest that archives differentiate between pre-1972 and post-1972 recordings for preservation
purposes, even when they may so differentiate for access purposes. Because of the complexity of laws
governing sound recordings, few archivists are even cognizant of the difference in the legal status of pre-
1972 and post-1972 recordings.”). For assertions that preservation decisions are affected by pre-1972
status, see, e.g., Kenneth Crews at 5, n.12 (“I can affirm that some libraries do in fact treat early sound
recordings differently because of the lack of federal protection, particularly for the purposes of preserving
unique or scarce works.”) and Stephanie Roach at 2 (“the complexity of the inconsistent body of state laws
that govern these recordings introduces needless delays – sometimes indefinitely – and hampers decision
making regarding preservation and access for collections of pre-1972 sound recordings within archives,
libraries, and other cultural heritage institutions in the United States.”).
241
NRPB REPORT at 14.
242
NRPB REPORT at 19.
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62
large record companies of the acoustical era – pre-1925 – including that of Columbia, it
effectively owns the rights in the majority of commercial recordings of that era.
243
b. Record Companies
According to several comments submitted for this Report, record companies historically
have not been concerned with preserving their sound recordings for future use.
244
One public
meeting participant suggested that preservation is not properly the domain of record companies,
who are established to manufacture and sell recordings.
245
Nonetheless, in recent years (perhaps
spurred by the CD reissue boom in the 1990s), U.S. and foreign record companies have been
taking a greater interest in their back catalogs and either reissuing titles themselves or licensing
their works to other companies who serve more specialized markets. The decision as to what
titles to reissue is driven in large part by what kind of a return on investment can be expected.
246
The question of whether a recording was fixed pre- or post-1972 is irrelevant for a record
company reissuing its own works.
In their initial comment, RIAA and A2IM detailed the preservation work of some of the
larger foreign and domestic record companies. Some of the highlights of the survey include
EMI’s plans to digitize tens of thousands of recordings released between 1923 and 1940, with
approximately 5,500 remastered for commercial purposes; Warner Brothers’ goal of digitizing
every recording it released since the time of its founding in the late 1940s;
247
Sony’s partnership
243
See supra note 220; see also Association of Recorded Sound Collections (ARSC) at 6 and
http://www.loc.gov/jukebox/about
.
244
See, e.g., Brooks T1 at 108-09.
245
Loughney T1 at 118 (“the commercial industry, they live within the strictures of the marketplace, and
they can only invest in things that they believe will be commercially available, and they are not in the
archive business in the sense of doing what libraries do.”).
246
RIAA/A2IM at 8.
247
See id. at 8-14; but see ARSC Reply at 7.
United States Copyright Office PRE-1972 SOUND RECORDINGS
63
with the Library of Congress to digitize and make available for streaming to the public thousands
of pre-1925 sound recordings;
248
and Universal Music Group’s decision to give its master
recordings from 1929 to 1948 to the Library of Congress.
249
RIAA and A2IM stressed in their initial comment that the time, effort, and resources
required to do a quality reissue “can be prohibitive,” citing “storage, review of analog media for
metadata, data entry, cataloging, conversion/digitization using obsolete equipment and storage
media, and legal fees.”
250
Thus, its members focus on earning a return on their investment in
deciding whether and what to preserve.
c. Private Collectors
Private collectors were the first sound recording preservationists, in that they collected,
cataloged, and maintained in good condition thousands of pre-1972 titles that otherwise would
have been discarded or forgotten.
251
As a general rule, private collections often form the basis of
public collections or collections that reside in larger institutional settings. Many private
collections, however, are stored in less-than archival-quality conditions, vulnerable to poor
handling and environmental damage.
252
And, while some private collectors of commercial sound
recordings may make digital copies of titles in their collections, this practice is not “true”
preservation of the sort practiced under generally accepted norms by librarians who have the
professional duty of insuring continued playability and accessibility of the digitized copy.
248
http://www.loc.gov/jukebox/about.
249
Library of Congress Gets a Mile of Music, N.Y. TIMES, Jan. 9, 2011,
http://www.nytimes.com/2011/01/10/arts/music/10masters.html
.
250
RIAA/A2IM at 8.
251
NRPB REPORT at 35-37. The NRPB Report divides private collectors into two groups: “record
collectors,” who hold mainly rare, but not unique copies of commercial recordings, and “recorded sound
collectors,” who hold both commercial recordings and unique items such as interviews, private recordings,
and studio out-takes. See id. at 37-38.
252
See id. at 38-39.
United States Copyright Office PRE-1972 SOUND RECORDINGS
64
d. Radio Stations
There has been no systematic documentation of radio broadcasts, and few institutions
work actively to support radio broadcast preservation. During the most popular years of radio
(early 1930s through early 1950s), nobody envisioned an aftermarket for recordings of radio
programs. And because most of these broadcasts were done live, there was little financial
incentive to record them. In terms of history, the first 15 years of radio – roughly 1920-1935 –
have left relatively few sound recordings, and those recordings that were saved were recorded on
lacquer-coated discs until the advent of magnetic tape.
253
In later years more recordings were
made and retained. For example, the Library of Congress and the University of Wisconsin have
significant holdings of NBC radio programs that were recorded on what were called
“transcription discs.”
Radio transcriptions were not only made by broadcast networks, but by third party
transcription services, which used wire recorders that produced very fragile recordings. The
largest resource for radio broadcasts from 1942 to the present is the Armed Forces Radio and
Television Service transcriptions collection at the Library of Congress.
254
Other sources of radio
broadcast recordings are National Public Radio stations, local radio stations, and individual
enthusiasts, who hold tens of thousands of tape recordings.
255
2. Preservation and the Law
To what extent does the law – both state and federal – permit preservation activities? All
digital preservation activities require making copies. Thus, unless a library or archive has
253
See id. at 20-21.
254
See id. at 24. AFRTS provided programming for US military forces overseas.
255
See id. at 30.
United States Copyright Office PRE-1972 SOUND RECORDINGS
65
permission from the right holder, copyright law (or related state law doctrines) will determine
whether and to what extent the library or archive may lawfully make preservation copies. A
discussion of those provisions follows.
a. Federal Law
Although federal copyright law is inapplicable to most pre-1972 sound recordings, it
provides an important backdrop for understanding the legal status of pre-1972 sound recordings.
Congress has recognized that the ability of certain research libraries and archives to
preserve cultural and historical works for posterity is in the public interest and has included
provisions in the Copyright Act that, at the time of enactment, were appropriately tailored for this
purpose. The primary provision is section 108, which was first enacted in 1976 and is in need of
updating for the digital age. Section 108 was the subject of a major independent report co-
sponsored by the Copyright Office and the Library of Congress’s National Digital Information
Infrastructure and Preservation Program in 2008, and updating it is a current priority of the U.S.
Copyright Office.
256
Section 108 provides explicit exceptions to and limitations on a right holder’s exclusive
rights for the benefit of libraries and archives. These exceptions are available only when they are
“without any purpose of direct or indirect commercial advantage,”
257
and only by institutions
open to the public or at least to researchers in a specialized field.
The part of section 108 pertaining specifically to preservation is subsection 108(b). It
applies only to unpublished copyrighted works and allows libraries or archives to make up to
three copies “solely for purposes of preservation and security or for deposit for research use in
256
Priorities and Special Projects of the United States Copyright Office, October 2011 – October 2013, at
8 (2011), available at http://www.copyright.gov/docs/priorities.pdf
.
257
17 U.S.C. § 108(a)(1). In addition, any copy must include a notice of copyright, or if no copyright
notice is found, a legend indicating that the work may be protected by copyright. Id.
United States Copyright Office PRE-1972 SOUND RECORDINGS
66
another library or archives.”
258
The work must be currently in the collections of the library or
archives, and any copy made in a digital format may not be made available to the public in that
format outside the premises of the library or archives. Subsection 108(c) allows libraries and
archives to make replacement copies of published works in their collection that are damaged,
deteriorating, lost, or stolen, or the format of which has become obsolete.
259
Before a
replacement copy is made, however, the library or archives must first make a reasonable effort to
determine whether an unused copy is available on the market at a fair price. While subsection
108(c) is explicitly for replacement copying, in practice libraries and archives use it for
preservation in the sense that it allows them to keep in circulation copies of works that otherwise
would be inaccessible.
260
Digital copies made under subsection 108(c), like those made under
subsection 108(b), may not be made available outside the premises of the library or archives.
An additional exception applying to published works is section 108(h), which allows
libraries, archives, and nonprofit educational institutions under certain conditions to “reproduce,
distribute, display, or perform in facsimile or digital form … for purposes of preservation,
scholarship, or research” copies of any published work in its last 20 years of federal copyright
protection. This exception is not available if the work is subject to normal commercial
exploitation or a copy or phonorecord can be obtained at a reasonable price.
It should be noted here that there is widespread agreement among libraries, archives, and
right holders that section 108 is inadequate to address preservation and access issues in the digital
realm, although there is a wide variety of views as to how it should be amended.
261
258
17 U.S.C. § 108(b).
259
A format is considered obsolete “if the machine or device necessary to render perceptible a work stored
in that format is no longer manufactured or is no longer reasonably available in the commercial
marketplace.” 17 U.S.C. § 108(c).
260
Section 108 Study Group, Section 108 Study Group Report at 53 (2008). For a discussion of why
section 108 treats published and unpublished works differently see id. at 18-19.
261
See id. at i-xiv.
United States Copyright Office PRE-1972 SOUND RECORDINGS
67
Apart from section 108, libraries and archives may also, in appropriate cases, use the fair
use doctrine (section 107 of the Copyright Act) in order to make preservation copies.
262
Fair use
provides an exception to the Copyright Act’s exclusive rights (reproduction, preparation of
derivative works, distribution, public performance, public display, and digital public performance
for sound recordings
263
) for certain purposes.
264
Whether or not a use is fair is a fact-specific
inquiry, including consideration of:
(1) the purpose and character of the use including whether such use is of a
commercial nature or is for nonprofit educational purposes; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and (4) the effect of the use upon the
potential market for or value of the copyrighted work.
265
Determining fair use is not a mechanical process, and whether or not a particular preservation
activity is a fair use depends upon the nature of that activity. Some libraries and archives may
rely on the flexibility of fair use in evaluating their digitization plans. However, what some see
as flexibility others may experience as uncertainty, and this difference in perception is frequently
attributable to one’s level of risk aversion. An institution with little appetite for stretching the
boundaries of fair use, for example, may appreciate the relative certainty of section 108, despite
its restrictions.
262
17 U.S.C. § 108(f)(4) (“nothing in this section in any way affects the right of fair use as provided by
section 107.”)
263
17 U.S.C. § 106.
264
Section 107 lists examples of uses that may be fair – criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research. However, these uses are not
automatically considered fair uses; indeed, the statute clearly states that courts must consider the statutory
factors “[i]n determining whether the use made of a work in any particular case is a fair use.” 17 U.S.C.
§ 107. And other non-enumerated uses may also qualify as fair use.
265
17 U.S.C. § 107.
United States Copyright Office PRE-1972 SOUND RECORDINGS
68
b. State Law
In the absence of permission, the various state laws that protect pre-1972 sound
recordings generally lack specific provisions allowing libraries and archives to make preservation
copies.
266
Indeed, the structure of statutory state law protection is fundamentally different than
federal law, partaking of many different criminal and civil approaches, with some commonalities
among the states and some differences. The two largest differences between state and federal
protection of sound recordings are (a) the use in the states of “common law copyright,” meaning
law based entirely upon judicial decisions, and not codes enacted by the legislature, and (b) the
states’ use of misappropriation/unfair competition laws.
The one facet of state protection of pre-1972 sound recordings that has a modicum of
similarity from state to state is found in criminal anti-piracy statutes. A 10-state survey
conducted in 2009 found that states tended to follow language pioneered by the California and
New York legislatures, namely:
Each of the 10 states has similar requirements of knowledge [that the distribution
is taking place] and lack of consent of the owner. Even more important, the
statutes in all 10 states contain explicit language stating that the unauthorized use
must be made with “intent to sell,” for “commercial profit,” or some other
language indicating a commercial nature to the unlawful activity.”
267
State law regarding what qualifies as “commercial” is either unknown or unclear.
268
However, it
would seem that library and archives digitization (divorced from access) is an archetypal example
of noncommercial activity. There have been no criminal piracy charges brought against a library
or archive in any state, so the exact application of the law as pertaining to pre-1972 sound
recordings in a cultural repository remains undeveloped.
266
For a full discussion of the state law landscape, see supra Chapter II.E.
267
JASZI REPORT at 9 (internal citations omitted).
268
See id. at 12 (“Overall, there seems to be a dearth of case law relating directly to the scope of permitted
noncommercial use.”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
69
Comments by the stakeholders overwhelmingly indicate that it is not any specific
provision of any state’s law that affects preservation decisions, but simply the multitude of
different laws and the lack of interpretation and analysis that deters preservation activities.
269
Some states provide more guidance than others. For example, in 2008 the Supreme Court of New
York (a trial court) recognized the federal fair use exception as a defense to a common law claim
of infringement of a sound recording.
270
It is also useful to note that, to the degree that common
law copyright and associated state laws hinder preservation, it appears that technological barriers
and lack of funding hinder it significantly as well.
271
c. Risk Analysis
A substantial amount of digital preservation activity occurs regardless of the apparent
ambiguity of, and confusion over, state law pertaining to pre-1972 sound recordings. The
University of Utah Library commented that it feels more able to digitize under its state’s law than
it would under federal law – an example of an entity looking at its state’s legal landscape and
determining that, while it is not crystal clear, it is clear enough to justify the risk of forging ahead
with digitization.
272
In addition, many entities are likely forging ahead without concern one way
or the other about state law.
273
269
See, e.g. LOC at 4; Syracuse Univ. Library at 4-5; Roach at 2; but see J. Willard Marriott Library,
University of Utah at 2 (“According to Utah’s Unauthorized Recording Practices Act, libraries and other
collecting institutions in the State of Utah are permitted to copy and distribute pre-1972 recordings.”).
270
EMI Records Ltd. v. Premise Media Corp., 2008 N.Y. Misc. LEXIS 7485, at **14-15 (Sup. Ct. Aug. 8,
2008).
271
See, e.g., NRPB REPORT, at 11-14 (discussing barriers to preservation of sound recordings revealed by
surveys).
272
See University of Utah at 2-3; see also Association of Research Libraries/American Library
Association (“ARL/ALA”) Reply (discouraging federal protection for pre-1972 sound recordings, and
asserting that, so long as fair use applies, the lack of explicit exceptions and their attendant restrictions in
state law is better for preservation).
273
See SAA at 2 (“Because of the complexity of laws governing sound recordings, few archivists are even
cognizant of the difference in the legal status of pre-1972 and post-1972 recordings. Almost all archivists
United States Copyright Office PRE-1972 SOUND RECORDINGS
70
Certainly, in the general context of copyright law, there are users of copyrighted
materials who are risk-averse and those who are not. Libraries and archives tend to be risk-
averse,
274
a fact which has not been lost on the Copyright Office or the right holders
themselves.
275
Note, for example, the observations of the RIAA and A2IM, commenting that
state protection of pre-1972 sound recordings should not inhibit and is not inhibiting preservation
activities, even in cases where libraries and archives may be in technical violation of the law.
When these right holder groups also claimed that “to our knowledge, no public or private
institution has been sued (or threatened with a lawsuit) by an RIAA or A2IM member for
undertaking preservation activity; nor should any reputable archive be so threatened,”
276
that
assertion received a mixed response. While the ARL and ALA did not object to the record
companies’ assertion,
277
SAA and MLA took great exception. They stated that such an attitude
fostered disrespect for copyright law,
278
and would be little more than cold comfort to libraries
and archives who were interested in providing access as well as undertaking preservation.
279
C. Public Access to Pre-1972 Sound Recordings
The degree of public access to pre-1972 sound recordings varies widely depending upon
the age of the recording, whether it is published or of a commercial nature, its popularity, who is
assume that their ability to ‘format shift’ material for purposes of preservation is a given in existing law,
both Federal and state, and act accordingly. If a sound recording is in the collection and it needs to be
preserved, archivists will try to preserve it.”).
274
See, e.g., id. at 2 (“Congress and the Copyright Office should remove any legal impediments that may
discourage libraries and archives from preserving sound recordings.”).
275
See Pallante T1 at 72-73 (“I think part of what you are saying is that librarians and archivists and
museum curators shouldn’t be so risk adverse, but I have to tell you that as a former museum attorney
myself, you are not going to change that…[T]hey are very risk averse and conservative.”).
276
RIAA/A2IM at 19.
277
ARL/ALA at 3, note 9.
278
SAA Reply at 4.
279
MLA Reply at 4.
United States Copyright Office PRE-1972 SOUND RECORDINGS
71
providing the access, and how one defines “public access” in the first place. For older recordings,
access does not necessarily utilize digital technology. For example, a library may allow listeners
to privately study an LP in its listening room, or an individual may purchase a used 45 rpm single
at a yard sale. By contrast, when dealing with works preserved through digitization, the question
of public access will draw on the digital copy and therefore raise issues about the application of
copyright law to the work. Examples of access derived from digital technology include the
distribution of copies of a CD by the right holder in the sound recording, to listening to a digital
copy transmitted to a library reading room from the library’s network server, to the performance
via streaming of an MP3 by a web site.
How broadly one defines the question of public access plays a significant role in
determining how much of the pre-1972 recorded patrimony is “available.” For example, in his
2005 Survey of Reissues of U.S. Recordings, Tim Brooks distinguished “availability” of pre-
1972 sound recordings (which he defined as meaning one can locate but not necessarily be able to
play a copy) from “accessibility” (meaning the recording is available on CD or for purchase or
download through the Internet).
280
On this basis he determined that, for recordings within the
scope of his study released between 1890 and 1964, an average of 14% are made publicly
accessible (i.e., reissued) by their right holders.
281
Apparently not considered by Mr. Brooks are
recordings that can be heard solely on-site at a library or archives.
282
Under this view, almost all
field recordings and other scholarly recordings would be considered inaccessible to the public, as
would the vast majority of commercial recordings housed in libraries and archives. Clearly,
280
BROOKS STUDY at 1-2.
281
See id. at 7. The scope of the Brooks study was “recordings for which there is documented historic
interest,” which encompassed “seven major fields of study,” but not, for example, pop vocals. Brylawski
T1 at 113-14. All recordings within the scope number about 400,000; the random sample size was 1,500.
B
ROOKS STUDY at 3-4.
282
BROOKS STUDY at 14; Brooks T1 at 197.
United States Copyright Office PRE-1972 SOUND RECORDINGS
72
however, such recordings enjoy the same level of accessibility that many other works of
authorship receive, to those who live near or travel to the libraries and archives housing them.
Another example illustrates the tensions involved in addressing accessibility. One
attempt at making early commercial recordings more accessible is the Sony-Library of Congress
“National Jukebox” partnership described above.
283
This endeavor allows users to stream at will
thousands of acoustical-era recordings to their home computers. Were these recordings protected
under federal law, such distribution would certainly qualify as a public performance, which the
Copyright Act defines in part as
to transmit or otherwise communicate a performance or display . . . to the public,
by means of any device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or in separate
places and at the same time or at different times.
284
However, for certain scholars such a public performance would not qualify as sufficient public
access, because they may need to “get your hands on the file and hold the file and use and study
the audio file” in order to analyze it.
285
“Streaming,” one public roundtable participant
maintained, “simply doesn’t cut it.”
286
1. Current Activities Providing Public Access
a. Libraries and Archives
The 2005 survey of U.S. reissues quotes an expert as saying that of all recordings issued
commercially in the United States, probably over 90% exist in some form today.
287
That same
283
See supra note 220.
284
17 U.S.C. § 101.
285
Brooks T1at 110-12.
286
Id. at 110.
287
BROOKS STUDY at 11 (citing Brylawski).
United States Copyright Office PRE-1972 SOUND RECORDINGS
73
study indicates that right holding record companies are responsible for reissuing 14% of a sub-set
of these works, while non-right holders have reissued 22%.
288
(Although, by the time this Report
is read, these numbers will be more than seven years old, the author of the 2005 report asserts that
he has seen no evidence that the percentage of physical reissues has risen.
289
) Where might the
rest of these extant recordings be? One answer is libraries and archives.
To date, many libraries and archives appear to have been fairly conservative in providing
public access to the pre-1972 sound recordings (and, for that matter, other works of authorship) in
their care. However, if the comments and roundtable remarks from the Office’s proceedings are
instructive, what libraries and archives appear to mean by public accessibility seems to be
Internet access – from streaming to downloading – and not merely in-person listening. Streaming
and downloading may be done with permission,
290
without permission (either out of ignorance of
the law
291
or out of disregard for the law), or refrained from altogether.
292
This observation from
the Library of Congress is representative of views expressed by scholars, librarians, and
archivists:
Within the community of librarians and archivists having custody of sound
recording collections, when faced with complex or unclear information on the
copyright status or ownership of a pre-1972 sound recording relating to a public
access request, the “safe” response is “No.”
293
288
See id. at 7. Note that the titles reissued by right holders and by non-right holders likely duplicate one
another to a certain extent.
289
Brooks T1 at 110. Brooks also stated that online availability to pre-1972 sound recordings has changed,
and that were the survey performed today online availability would have to be addressed. However,
Brooks averred that “it is the belief of our members in our organization [ARSC] that limited or restricted –
we would say heavily restricted – access is not the same thing as availability, certainly not for the purposes
that scholars need it or even preservationists, perhaps.” Id. Hence, at least in the eyes of archivists, it is
doubtful that the recordings being streamed through the National Jukebox would be considered
“available.”
290
The National Jukebox is one example of permission-based public access by means of streaming
provided by a library, in this case with the cooperation and permission of the right holder.
291
SAA at 4.
292
MLA at 6.
293
LOC at 5.
United States Copyright Office PRE-1972 SOUND RECORDINGS
74
b. Record Companies
Record companies provide public access to pre-1972 sound recordings through reissuing
these recordings on compact disc and as downloads.
294
Sometimes an entire album will be
reissued intact, and sometimes, particularly for artists popular before the advent of the 33⅓ rpm
LP, the reissue will consist of a series of individual songs. As indicated in the previous section,
record companies tend to reissue a recording only when they can be relatively sure of a return on
their investment, given the costs of preparing a reissue. As the RIAA stated, cost “coupled with
uncertainty about the commercial value of the vast majority of the recording, is the principal
reason many recordings are not widely available.”
295
Still, to the degree that providing public access to a pre-1972 sound recording means
issuing a consumer-ready product, record companies appear to reissue fewer of their own works
than do foreign labels and smaller U.S. ventures who apparently act without authorization.
296
Such other labels have, according to Tim Brooks’s survey, reissued 22% of the pre-1972
recordings surveyed, compared to 14% by right holders.
297
294
As noted elsewhere, record companies have also cooperated in making very old sound recordings
available for streaming through services such as the Library of Congress’s National Jukebox. See supra
note 220.
295
RIAA/A2IM at 8.
296
BROOKS STUDY at 7-8.
297
See id. It is important to note that the Brooks Report does not encompass all commercial sound
recordings for the 1890-1964 time period, but instead is restricted to titles with “documented historic
interest,” as represented in seven major genres: ragtime and jazz; blues and gospel; country and folk;
ethnic; pop, rock, and R&B; classical; and other (including show music and spoken word). See id. at 3.
This left “large bodies of recordings” outside the survey such as “every pop vocal that was made before
1965.” Brylawski T1 at 113-14. It was also noted at the public meeting that, had the total number of
recordings issued in the U.S. been included in the study, the percentage of right-holder reissues would be
“significantly less” than 14%. Id.
United States Copyright Office PRE-1972 SOUND RECORDINGS
75
c. Private Collectors
Librarians and scholars report that many private collectors are loath to put their
collections in the hands of preserving institutions for fear that their lovingly curated 78s will fall
into a “black hole” of inaccessibility.
298
Since such collections are not particularly accessible in
their present locations, the main public access service provided by private collectors is that of
lending titles from their collections to record labels to use as masters for digital reissue.
299
d. Radio Stations
To the degree that radio stations make publicly available their digitally preserved
archives, it is likely through private appointments with researchers, or through libraries that have
assumed stewardship of their recordings. In making radio broadcasts more accessible to more
than just on-site researchers, libraries and archives must address not only copyright concerns but
also performer and union contracts that may govern use beyond the initial airing of a program.
300
2. Provision of Public Access and the Law
A point of interest among the librarians and archivists who submitted comments and
spoke at the roundtable is that preservation activities are inextricable from the goal of providing
public access. To some degree this is about the desire to provide access, and the degree to which
access is part of the mission of many research or collecting institutions. On a related point, they
stressed that access is often a condition of grant money for preservation projects. Such money
becomes scarce when there is no potential for public access.
301
298
See, e.g., NRPB REPORT at 40; Brooks T1 at 83.
299
See Dean, Desperate Man Blues, supra note 225.
300
NRPB REPORT at 22.
301
See, e.g., Cockrell at 1; Roach at 3.
United States Copyright Office PRE-1972 SOUND RECORDINGS
76
This section of the Report briefly describes the aspects of federal and state law pertaining
to the provision of access, specifically access to a preservation copy or other digital copy.
Consistent with the ARSC’s view that access requires the ability to closely analyze one’s own
copy of a work, the type of access sought by libraries, archives, and scholarly commenters was by
means of digital downloads or physical reissues. Such activities, when done by libraries or
archives without the permission of the right holder, are not currently within the scope of section
108 and, as the Section 108 Study Group Report demonstrates, including them within a statutory
limitation or exception for libraries and archives is a very controversial topic.
302
Of course, one need not concern oneself with legal exceptions allowing for provision of
public access if one seeks and receives permission from the right holder. However, with some
exceptions, permissions was not a subject raised by most stakeholders, in the written comments or
at the public meeting. There was some indication by libraries and archives that permission for
use of commercial recordings was difficult to obtain
303
and, of course, that permission for use of
many field and ethnographic recordings was simply impossible as the performers had died.
Representatives from RIAA suggested that seeking permission remains a productive method for
making preservation copies and providing access, especially regarding those early recordings that
are now gathered under the Sony corporate umbrella.
304
Another right holder pointed out that the
National Jukebox preservation and audio streaming partnership between the Library of Congress
302
Section 108 Report at 57-60 (“Remote electronic access”).
303
LOC at 7 (“In the case of both foreign and U.S. owned pre-1972 sound recordings, it is common to
encounter rights holders who either no longer own any copies of recordings to which they hold the rights,
or no longer have documentation of any kind that verifies their ownership interests. Likewise, it is
common in regard to pre-1972 sound recordings of both foreign and U.S. origins, for there to be a lack of
institutional memory within companies and/or documentation about the past sale or transfer of ownership
of recordings to other parties. The effect on libraries, archives, etc., and members of the research public is
confusion caused by cold information trails leading to long dead owners and record companies that have
gone out of business.”).
304
Chertkof T1 at 118-19.
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and Sony was an example of a productive permission-based agreement for providing access to
early sound recordings.
305
a. Federal Law
Federal law provides an important backdrop for understanding the legal status of pre-
1972 sound recordings, but again it is important to recall that it is currently inapplicable to most
pre-1972 sound recordings. As discussed above, section 108 and fair use are the primary
provisions of copyright law relied upon by libraries and archives to preserve and provide access
to works. But it is the first sale doctrine in section 109 that authorizes the basic lending function
of libraries. Section 109 states that,
Notwithstanding the [exclusive right of distribution], the owner of a particular
copy or phonorecord lawfully made under this title, or any person authorized by
such owner, is entitled, without the authority of the copyright owner, to sell or
otherwise dispose of the possession of that copy or phonorecord.
306
In other words a library is entitled to lend copies that it owns, including copies made under the
authority of section 108, subject to the restrictions of that section.
In particular, libraries and archives may not make available to the public, “outside the
premises of the library or archives,” a digital preservation copy of an unpublished work or a
digital replacement copy of a published work.
307
Although under certain conditions libraries may
at a user’s request copy a portion of a work in their collections (or even a complete work if it
cannot be obtained at a fair price), these exceptions are carefully restricted.
308
For example, they
extend only to “the isolated and unrelated reproduction or distribution of a single copy or
305
Aronow T1 at 105-06.
306
17 U.S.C. § 109(a).
307
17 U.S.C. § 108(b)(2).
308
17 U.S.C. § 108 (d), (e).
United States Copyright Office PRE-1972 SOUND RECORDINGS
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phonorecord of the same material on separate occasions” and do not apply to systematic
reproduction of multiple copies.
309
However, there is one proviso to the copies-for-users subsections of section 108 that
particularly affects libraries and archives with substantial recorded sound collections: those
subsections do not apply to, inter alia, musical works.
310
Sound recordings frequently constitute
performances of musical works; in other words, musical works are embodied in them. Since it is
impossible to copy a sound recording without copying the musical work it embodies, it may not
be copied for users pursuant to section 108 if the sound recording embodies a musical work that
is still protected by copyright.
311
In contrast, the section 108(h) exception for use of a work in its last 20 years of copyright
protection does apply to the reproduction and distribution of sound recordings.
The question of availability of digitized pre-1972 sound recordings also would implicate
section 110(2) of the federal copyright law if pre-1972 sound recordings were covered under title
17. This section permits a government body or “accredited nonprofit educational institution” to
transmit “reasonable and limited portions” of a sound recording as part of distance education.
312
Section 110(2) is clearly an “access” provision, but it only provides access to a limited class of
users, and under restricted circumstances. Moreover, because it only permits portions of sound
recordings to be transmitted, it is of limited use to scholars of such materials.
309
17 U.S.C. § 108(g).
310
17 U.S.C. § 108(i).
311
Musical works are still protected by copyright if they were published after 1923 (provided that, if they
were published in the United States before 1964, their copyrights were renewed). Prior to the enactment of
the Copyright Renewal Act of 1992, title I of the Copyright Amendments Act of 1992, Pub. L. No. 102-
307, 106 Stat. 264, a work for which copyright was secured prior to 1978 enjoyed an initial term of 28
years, subject to a renewal term only if the person entitled to renew the copyright submitted a renewal
application to the Copyright Office during the 28th year of the initial copyright term.
312
17 U.S.C. § 110(2).
United States Copyright Office PRE-1972 SOUND RECORDINGS
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b. State Law
Just as the various state laws that protect pre-1972 sound recordings generally lack
specific provisions allowing libraries and archives to make preservation copies, they also lack
specific provisions permitting libraries and archives to provide access to those copies. The
general discussion above of the uncertainty and lack of precedent in state law
313
applies as well to
any public access activities.
c. Risk Analysis
While libraries may continue to preserve pre-1972 sound recordings in the face of
ambiguous and inconsistent state law, they are less likely to provide public access to those
recordings. Libraries and archives are particularly concerned about making those sound files
generally available over the Internet because they believe that doing so could conceivably expose
the posting institution to the laws of all 50 states.
314
Of course, there will always be situations where an institution may determine that the risk
of an infringement claim is relatively remote and that the importance of providing access to its
digitized works justifies taking that risk. Such an institution may decide to post its preserved
recordings on the Internet. For example, the Society of American Archivists spoke of
a highly-regarded repository that makes available on the Internet rare sound
recordings of Jewish music. It does so in the apparent belief that U.S. sound
recordings made before 1923 are in the public domain. The good news is that
current practice has not harmed any rights owners; the repository has received
only acclaim, with no reported complaints.
315
313
See supra Chapter III.B.2.b.
314
See SAA at 11.
315
Id. at 4.
United States Copyright Office PRE-1972 SOUND RECORDINGS
80
In addition, the ARSC reported that the larger the institution, the more likely it is to be risk-
averse.
316
316
ARSC at 8.
United States Copyright Office PRE-1972 SOUND RECORDINGS
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Tape reel
IV. POLICY CONSIDERATIONS
There are many points of public policy to consider in determining the wisdom of federal
protection for pre-1972 sound recordings. At the outset, there is the intelligibility of each regime:
would federal protection improve the clarity, consistency and certainty of the law protecting pre-
1972 sound recordings, or would those values be better achieved by retaining state law
protection? The likely effects on preservation and public access must also be considered. All
stakeholders support these goals, at least in the abstract, but disagree on how best to promote
them. Likewise, stakeholders agree that any change in legal protection should not harm the
reasonable economic interests of right holders. But such consensus still begs an important
question: what economic interests are reasonable?
There are other questions with respect to the application of Title 17. This Chapter also
addresses how section 512 (providing a limitation on liability for online service providers), and
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82
section 114 (providing a statutory license for digital public performance of sound recordings)
would interact with provisions providing federal protection for pre-72 sound recordings. Finally,
this Chapter considers some alternative protection schemes proposed by stakeholders.
A. Certainty and Consistency in Copyright Law
The majority of the stakeholder comments regarding the potential federalization of pre-
1972 sound recordings mentioned the importance of certainty and consistency as policy lodestars
by which to guide the recommendations of the Office.
317
While these are neutral values in the
abstract, when applied to a particular issue they can cut more than one way. What appears
consistent when measured against one set of facts may be a break from past practice, and thus
inconsistent, from another perspective. The historical and policy importance of certainty and
consistency (as well as neighboring values such as uniformity) to copyright owners and to users
of copyrighted works is discussed below, along with an examination of stakeholders’ views on
how copyright law’s certainty and consistency may be affected by putting pre-1972 sound
recordings under federal protection.
1. Importance of Certainty and Consistency
Uniform national application has been a hallmark of copyright law since the first
copyright law was enacted in 1790. The goal was underscored and strengthened by the Copyright
Act of 1976, which extinguished – with the exception of pre-1972 sound recordings – the concept
of state common-law copyright.
318
317
See, e.g., LOC at 4; Aronow T1 at 106.
318
See, e.g., ASRC Reply at 9-10 (“Uniformity has been widely recognized as essential to maintaining the
marketability and, in the case of historic recordings, the continued existence of creative works. The very
purpose behind Article I, Section 8 from which Congress derives its power to promulgate copyright law is
inextricably rooted in the need for national uniformity of copyright law.”).
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Until the Copyright Act of 1976, federal copyright law protected only published works,
319
with unpublished works covered in perpetuity by state common-law copyright. This dual system
applied to sound recordings along with every other type of work. The 1976 Act, with the goals of
(1) promoting national uniformity; (2) eliminating divisions in copyrightable subject matter by
publication status; (3) applying the Constitutional rule of “limited times” to unpublished works;
and (4) improving international copyright dealings,
320
eliminated state common-law copyright
and moved all unpublished works, both past and future, into the federal copyright system. As
explained in Chapter II above, this unification measure was not applied to sound recordings fixed
before February 15, 1972.
In excluding pre-1972 sound recordings from federal protection, Congress appears to
have departed from those goals. Regardless of why Congress made that decision – and the record
sheds little light on Congress’s reasons – sound recordings in 1976 became the single
inconsistency in what was intended to be a seamless national system of copyright protection.
Additionally, what has grown out of that inconsistency is over a hundred years of a state-law
regime upon which members of the RIAA and A2IM have come to rely.
321
So, while federal
protection for pre-1972 sound recordings might be consistent with an overall federal policy of
uniformity, it would arguably be inconsistent with the experience built up in the sound recording
community with respect to state law.
Another issue for consideration is whether federalization of pre-1972 sound recordings
would provide greater legal certainty than currently obtains. Most pre-1972 sound recordings are
319
There were some narrow exceptions. At the option of the copyright owner, certain works that typically
were exploited not by means of publication, but rather by means of public performance or exhibition, were
eligible for statutory copyright protection. Such works included lectures, etc., prepared for oral delivery;
dramatic, musical, or dramatico-musical compositions; photographs; motion pictures; works of art; and
plastic works or drawings. See 17 U.S.C.A. § 12 (repealed 1978).
320
See S. REP. 94-473, at 112-14 (1975).
321
See RIAA/A2IM at 26 (“This system may be complex, but at least there have been decades of litigation
and precedent to resolve ownership issues under [state] laws.”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
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protected only under state law, but that just begins the inquiry.
322
In each case one must consider
which state’s laws apply to the particular activities, what the law is in that state, how the laws
apply to preservation and public access, and what defenses are available. In many cases the law
is ambiguous.
323
The issues become more complicated if the intention of the library or archives is
to post copies of a work to a broadly accessible website, where potentially multiple states’ laws
could apply.
It is undoubtedly true that federal law does not provide complete clarity, as the RIAA,
A2IM, ARL, ALA, and others assert. Because of the limitations of section 108, libraries and
archives increasingly rely on fair use in undertaking digital preservation, and the scope of the fair
use doctrine in this context has never been adjudicated. Furthermore, the RIAA and A2IM assert
that, after over one hundred years of state-law practice, assessing rights and licenses concerning
pre-1972 sound recordings under federal law would lead to great uncertainty in how right holders
continue to manage their assets and could potentially unsettle existing contractual relationships.
324
Before addressing whether federal protection of pre-1972 sound recordings would
provide greater certainty and consistency, it is worthwhile to consider potential consequences of
legal uncertainty. An environment in which rules are ambiguous and differ by region leads to
problems of both overprotection and underprotection. Overprotection – where users develop a
risk-averse attitude toward socially productive uses of copyrighted works due to the lack of
explicit exceptions – has been much discussed among the stakeholders in this study. They have
argued that institutions will not undertake preservation and access programs without some
322
While most pre-1972 sound recordings are protected only under state law, the exception created by the
copyright restoration provisions can lead to uncertainty as to which body of law to apply to a particular
recording.
323
For example, if a library’s or archives’ activities are looked at through the lens of a criminal law, then a
defense that the activities are noncommercial appears likely to prevail. See supra Chapter II.E.1.b. Of
course, it is far more likely that the activities would be looked at through a civil law lens, in which case the
laws of most states offer no clear defenses although in many states the law of unfair competition would
require that the defendant be in competition with the right holder. See supra Chapter II.E.2-5.
324
RIAA/A2IM at 24-28.
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85
certainty that doing so will be within the law.
325
Underprotection, in contrast, results when the
lack of clarity concerning the scope of rights allows users to make uses that are unfair or
unreasonable, but right holders are discouraged by the law’s ambiguity from pursuing effective
remedies.
326
Unsurprisingly, comments by libraries, archives, and scholars have not stressed this
side of the coin. But, particularly when there is little likelihood that more concrete rules and
exceptions will be imposed, underprotection may be attractive for users.
A set of rules that are certain and consistent go a long way to eliminating both under- and
overprotection, because they make the law itself, rather than the level of risk one is ready to
accept, the guiding principle.
2. The Impact of Federalization upon Certainty and Consistency in
Copyright Law
a. Users’ perspectives on effect of a single set of federal exceptions
Many user groups (libraries, archives, and scholars) noted in their comments a number of
ways in which they believe federal protection of pre-1972 sound recordings will improve
consistency and certainty in copyright law. They believe that the availability of a single set of
exceptions – exceptions with well-developed national jurisprudence – would encourage libraries
and archives to make reasonable uses of pre-1972 sound recordings without having to seek
permission. “The regularization of the law, the certainty of the law, the bright lines that the law
would bring us,” said the ARSC, “outweigh whatever negatives.”
327
They predicted that federal
325
See, e.g., SAA at 3 (“The danger exists that if archivists come to understand the uncertain legal
foundation on which their current behavior rests, they may become hesitant to continue with their
preservation activities. Providing a clear legal basis for preservation, therefore, would encourage archivists
to be less risk-adverse when it comes to preservation.”).
326
But see ARL/ALA Reply at 6, providing a more critical view of the current federal exceptions and a
more sanguine view of the state law regime.
327
Brooks T1 at 18-19; see also Lipinski T1 at 59 (“One of the benefits that I see is uniformity and
uniformity in the advantage of having a body of case law, for example, of theories that can be readily
applied. I think that's a great advantage.”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
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protection would produce specific benefits in the areas of preservation and provision of public
access, detailed below.
Federal protection of pre-1972 sound recordings would also enable owners and users of
those works to benefit from future applicable amendments to the Copyright Act (for example, an
amendment to deal with the problem of orphan works, or amendments to section 108). This
would not be the case with respect to state protections, and the gap between the treatment of pre-
1972 sound recordings and all other works would only increase if such amendments are enacted
but pre-1972 sound recordings remained governed by state law.
Not everyone in the library community has concluded that federalization would be
beneficial to libraries and archives. The ALA and ARL pointed out that many of the same
organizations pressing for federal protection have been critical of the scope of federal exceptions,
specifically section 108.
328
They have argued that section 108 is too outdated to be truly useful
with respect to preservation and making materials available to users in the digital age.
329
Indeed,
the Library of Congress wrote that
As they now exist, Sections 108(b) and (c) [the preservation and replacement
provisions, respectively] place recorded sound archivists who perform their
duties to the highest professional standards, plus the libraries, archives, museums
and other institutions for whom they work, at odds with the word of the law, if
not its intention.
330
Fair use would also be available under federalization. However, fair use is flexible – one
might say uncertain – by design. It requires a case-by-case analysis, is extremely fact-specific,
and for this reason does not lend itself to rules or policies for general application. Indeed, there is
some irony in users seeking certainty in a statutory exception that may not allow uses to be made
328
ARL/ALA Reply at 4-5.
329
LOC at 5.
330
See id.
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87
with any confidence. Still, the four factors of fair use, along with extensive case law, are not
necessarily available under state law.
One final aspect of federal protection that is a potential drawback for users is the
availability of statutory damages. Some users were clearly concerned about the possibility of
large statutory damage awards, which may be obtained without necessarily demonstrating
specific monetary or other losses. On the other hand, the statute does provide protections for
libraries, archives and nonprofit educational institutions. Specifically, the Copyright Act provides
that statutory damages shall be remitted (i.e., reduced) if the person making the allegedly
infringing reproduction reasonably believes it was fair use under section 107 and is an employee
or agent of a nonprofit educational institution, library, or archives, acting within the scope of
employment.
331
b. Right holders’ perspectives on the move from state to federal law
RIAA and A2IM predicted that federalization of protection for such recordings would
lead to greater uncertainty – not just for right holders, but for users as well. They predicted that
federal protection would cause an “administrative nightmare”
332
and result in “significant
economic harm”
333
to right holders. A2IM commented that it was quite comfortable with the
current state regime, and that “it’s something we understand,”
334
while Sony Music warned that
moving to federal protection risked creating “more uncertainty rather than less uncertainty.”
335
Right holders’ objections to federal protection were phrased largely in terms of the economic
331
See 17 U.S.C. § 504(c)(2). Note, however, that remission only applies to acts of reproduction, not to
the infringement of other exclusive rights.
332
RIAA/A2IM at 26.
333
See id. at 5.
334
Bengloff T1 at 33-34.
335
Aronow T1 at 106.
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88
harm and interference with settled business expectations that might result. These issues are dealt
with in detail in Chapter IV.D below.
RIAA also suggested that if pre-1972 sound recordings are brought under federal law,
ambiguities concerning the interpretation of sections 107 and 108, coupled with the risk-averse
nature of libraries, would result in fewer recordings being made available to the public.
336
Another stakeholder asserted that because federal protection would provide a digital performance
right to pre-1972 recordings, it would add another layer of complexity to libraries’ and archives’
digitization planning.
337
RIAA
and A2IM do not, of course, represent all right holders in pre-1972 commercial
sound recordings, much less right holders of noncommercial or unpublished recordings. There is
at least some evidence that non-affiliated owners may not all share their views. One stakeholder
purporting to own the rights in approximately 800 pre-1972 sound recordings commented that it
would prefer federal protection to the current state regime because it was “difficult and cost-
prohibitive to pursue infringement litigation state-by-state.
338
It does intuitively make sense that
right holders, particularly smaller ones, would prefer federal protection simply on the grounds
that it would be easier to manage one’s assets on the basis of a single set of laws rather than 50
sets.
Like users, right holders also expressed concerns – albeit quite different ones – about
statutory damages. Pre-1972 sound recordings are not currently registered with the Copyright
Office (since they are not eligible for copyright protection) but would have to be registered in
order to qualify for statutory damages and awards of attorney’s fees. This would be a significant
336
RIAA/A2IM at 20-21.
337
National Association of Broadcasters (NAB) Reply at 2-3.
338
VAPAC Music Publishing Reply at 1.
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89
undertaking. Moreover, RIAA indicated that it finds punitive damages available under state law
more attractive than the prospect of statutory damages under federal law.
339
c. Application of the DMCA “Safe Harbor” of 17 U.S.C. § 512
Section 512 of title 17, enacted as part of the Digital Millennium Copyright Act, provides
certain limitations on liability for copyright infringement by online service providers. However,
it is not settled whether the section 512 liability limitations apply to violations of the rights of
owners of pre-1972 sound recordings.
340
If pre-1972 sound recordings were federalized, service
providers would explicitly be entitled to the benefits of the section 512 safe harbor provisions
with respect to those recordings.
In response to the Notice of Inquiry, only two stakeholders raised concerns regarding
how the section 512 “safe harbor” limitations on liability for copyright infringement by online
service providers may apply to the state law protection of pre-1972 sound recordings. The
Electronic Frontier Foundation (EFF) noted the importance of the section 512 “safe harbor”
provisions to online innovation. It suggested that Congress could not have intended that these
provisions would not apply to pre-1972 sound recordings. At the same time it acknowledged that
there remains some uncertainty because online service providers cannot easily predict whether a
court would find the 512 “safe harbor” provisions applicable to certain copyright infringement
claims under state law. It suggested that federalization would clarify that the section 512 “safe
harbor” provisions apply to pre-1972 sound recordings.
341
At the roundtable, RIAA also
339
Pariser T2 at 456.
340
Courts have split as to the applicability of section 512 to pre-1972 sound recordings. See infra Chapter
V.A.2.c. However, none of the stakeholders referred to this split in authority.
341
EFF at 6-7.
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appeared to question whether the section 512 “safe harbor” provisions apply to pre-1972 sound
recordings.
342
B. Preservation
1. Importance of Preservation
Preservation of important cultural works is of great importance to the nation generally,
and stakeholders interested in pre-1972 sound recordings are in agreement that they should be
preserved. Preservation is often undertaken by specialized libraries and archives so that future
stakeholders, such as reissue producers and scholars, will have access to a particular aspect of the
national cultural patrimony. Preservation is also performed so that stakeholders in the present
day may be able to use the recordings. As discussed above, in many cases the media on which
these works are recorded are deteriorating;
343
in other cases they are so fragile that the kind of
playing necessary for scholarly study is simply unfeasible.
344
And, as explained above,
preservation of sound recordings today means digitization, which entails reproduction.
345
342
Pariser T1 at 276.
343
J. Willard Marriott Library, University of Utah at 1 (“Many sound recordings produced before 1972
require immediate duplication if they are to be preserved. Significant forms of physical degradation
affecting ephemeral sound media – wire recordings, magnetic tape recordings, and acetate transcription
discs – include permanent deformation and breaking, tearing, and delamination which can be irreparable.
All duplication has to be performed in real time making all preservation projects time consuming and
expensive. The media in question are already at high risk of loss simply because they reside on
impermanent substrates.”); Buttler T1 at 46-47 (“I do know that some change needs to move forward or,
otherwise, we're going to have a significant amount of material that is going to disappear from the historical
record, and I don't think that's a good outcome just because we have a law that protects it for a really long
time.”).
344
See Loughney T1 at 69-70 (“I can testify to many formats now in the recorded sound collection of the
Packard Campus of the Library of Congress that are deteriorating as we speak. These can be transcription
disks, these can be wax cylinders, they can be more robust formats that have actually had quite a lot of
longevity because they’ve been durable for four or five decades but are beginning to show signs of
oxidation, shrinkage and all the other catalytic chemical reactions that can occur to these formats. Because
they were never produced for longevity or for archival purposes; they were produced for home
consumption and use in the marketplace, and it was never intended that they last forever.”).
345
See supra Chapter III.B. Digitization brings its own set of problems. For example, the recordings must
reside on a medium and in a format that can be easily migrated and transferred to more stable platforms as
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91
2. Impact of Federalization upon Library and Archives Preservation
Activities
Whether libraries and archives would engage in more preservation as the result of
federalizing copyright protection for pre-1972 sound recordings appears to be an open question.
Some representatives of libraries and archives contend application of a single set of norms – the
federal copyright law – and the availability of the section 107 and 108 exceptions, would lead to
more preservation activity with respect to pre-1972 sound recordings. However, opponents of
federal protection asserted that it would discourage as much preservation activity as it would
encourage, primarily for substantive reasons related to the federal exceptions.
a. Likelihood of increased preservation
At the very least, the relative certainty and consistency of federal copyright law provides
a structural incentive for increased preservation of pre-1972 sound recordings. If a library, for
example, were considering a program to digitize certain out-of-print 1930s 78 rpm phonorecords
of Ukrainian music, a decision to forge ahead would be made easier if the library had to consider
only federal copyright law, i.e., both the statute and its judicial interpretations. In the current
environment, the library (or its counsel, if any) would at minimum have to consult the civil and
criminal laws of the state in which it is located, along with the relevant judicial decisions which
may not directly address sound recordings.
346
With some notable exceptions,
347
state civil and
they develop, and that is not beholden to outdated or obscure hardware or software in order to be played.
These are far from trivial issues.
346
See, e.g., LOC at 3 (“uncertain legal treatment even for preservation copying . . . makes archive and
education officials reluctant to fundraise for, or allocate resources for the acquisition and preservation of
the culturally valuable material.”); Syracuse at 4-5 (“any attempt to clear rights for the purpose of archival
digitization requires [a library] to research and analyze several different areas of state’s laws – across at
least three eras – to determine their applicability, potential exceptions, and possible penalties. Doing this
work requires such a tremendous resource allocation that many institutions . . . simply may choose not to
make historical works available, thereby leaving a huge gap in the nation’s cultural memory.”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
92
criminal laws do not include guidance as to what exceptions might apply, whereas federal law
provides a library-specific exception (section108), a well-developed and continuously evolving
limitation that has the added benefit of decades of judicial interpretation and commentary (section
107), and the possibility of a robust public domain. To the extent these federal provisions are
available, one would have to reasonably conclude that libraries and archives would have more
clarity, and therefore more ability to make long term resource allocations, with respect to
preservation copying.
348
State copyright law does not have anything resembling these exceptions.
349
Section 107
– fair use – would be beneficial because courts have already applied it to the digital environment
and will continue to do so. In some ways, it serves as a safety net (though by no means a
panacea) where certain facts may favor the user over the copyright owner but where the four
corners of section 108 are inapplicable. As cases relating to digital copying wind their way
through the courts, section 107 will continue to evolve and libraries and archives across the
country should be better able to create policies and practices in response. To the extent that these
decisions come from appellate courts, libraries and archives throughout the United States could
find themselves in a position to create national standards, rather than state-by-state projects, for
pre-1972 sound recordings.
Section 108(h) provides an option not available in state law: it permits libraries and
archives (and nonprofit educational institutions) to reproduce or distribute copies or phonorecords
347
See, e.g., CALIF. PENAL CODE §§ 653h, 653w (providing limited exceptions for “not-for-profit
educational institutions”); see also EMI Records Ltd. v. Premise Media Corp., 2008 N.Y. Misc. LEXIS
7845, at **14-15 (Sup. Ct. Aug. 8, 2008) (recognizing a fair use defense to copyright infringement of
sound recordings in New York).
348
SAA at 3 (“Providing a clear legal basis for preservation, therefore, would encourage archivists to be
less risk-adverse when it comes to preservation. The explicit and broad preservation exception for
unpublished material found in 108(b) would be a definite improvement over the current confused state of
the law for the vast number of unpublished sound recordings housed in archival repositories.”).
349
While it is likely that state courts presented with the issue would find that fair use is a defense to
common law copyright infringement, we are aware of only a single state trial court case, EMI Records Ltd.
v. Premise Media Corp., supra note 140, in which fair use has actually been applied.
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93
of a work for purposes of preservation, scholarship, or research in its last 20 years of federal
protection when the work is not subject to normal commercial exploitation and a copy or
phonorecord of the work cannot be obtained at a reasonable price. Additionally, some library
groups have noted that digitization plans are more likely to receive approval from a library
general counsel if based on the applicability of federal exceptions rather than state law.
350
Presumably, these federal provisions would lead to better funding for preservation – at
least relative to state law. Indeed, some libraries and archives believe that funding for
preservation is often contingent on their ability to provide public access. Under this perspective,
federal law is preferable.
351
Moreover, in some circumstances, federalization could result in some pre-1972 sound
recordings entering the public domain significantly earlier than 2067.
352
This would eliminate the
legal barriers to preserving those recordings and making them available over the Internet.
b. Likelihood of decreased preservation, or no change in preservation
activities.
A number of commenters, both copyright owners and users, contended that federal
protection for pre-1972 recordings was unlikely to change the amount of digital preservation, and
in fact might discourage it. Some stakeholders commented that federal protection offers no
preservation advantages over state protection. They maintained that, because neither state nor
federal protection schemes inhibit legitimate preservation activities, moving pre-1972 sound
350
See Brooks T1 at 194 (“Under a consistent regime, whether you like it or not, but a consistent and well
understood and well studied [regime], and I think most counsels would understand something about federal
law on this level . . . you would have far more certainty at that level about not only whether they could
make it available, but if they want to legally make it available, how to go about doing it and what the fair
use exceptions are, that kind of thing.”).
351
See LOC at 3; Roach at 3 (“by bringing this class of recordings under Federal law, some clarity would
be lent to the copyright status of pre-1972 sound recordings. As a result, funding agencies may be more
likely to provide grants or other funding to both preservation and access projects.”).
352
See infra Chapter VI.D.
United States Copyright Office PRE-1972 SOUND RECORDINGS
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recordings under the federal system will make no practical difference.
353
Additionally, RIAA and
A2IM stated that the effort involved in amending Title 17 to include pre-1972 sound recordings,
and the resolution of the many legal issues, would divert right holders’ attention and resources
“from more effective means to improve preservation and access” (i.e., partnerships with libraries
and archives), hence leading to less preservation overall.
354
“Preservation can only be furthered
by financial resources and better cooperation between rightsholders and archival institutions,”
they claimed, “rather than legal reforms.”
355
This cooperation, maintained the right holder
groups, is essential in order to provide libraries and archives with the money and technology they
need to engage in best-practices digital preservation.
356
ARL and ALA emphasized that the federal exceptions, particularly section 108, would
limit preservation activities far more than state law currently does. They asserted that the risk of
particular digitization activities being stymied by section 108’s limits on the number of copies
that can be made, or by its published/unpublished distinctions, was not worth the benefits of
federal protection overall.
357
While they acknowledged that uses not currently allowed by section
108 might still be permitted by section 107, they pointed out that, regardless of the exception,
statutory damages and other remedies not available at state law would apply to digitization
activities found to be infringing. This, they asserted, presents risks that must be weighed against
whatever rewards are offered by federal protection.
358
353
RIAA/A2IM at 18-19 (“the RIAA and A2IM believe that in fact, since they know of no such instances
of litigation for legitimate preservation activities by libraries or archives, that the copyright law – state or
federal – is largely not a factor or hindrance, by itself, to preservation activity.”).
354
Id. at 2.
355
RIAA/A2IM Reply at 2.
356
RIAA/A2IM at 7.
357
ARL/ALA Reply at 4-6 (use of section 108 “risks the loss of important cultural artifacts, and raises the
costs of preservation considerably and unnecessarily”).
358
See id. at 2-3, 6; see also NAB Reply at 4 (“retroactive federal copyright protection for pre-1972 sound
recordings could actually hinder preservation and access activities, as federalization would increase
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C. Public Access
1. Importance of Public Access
Providing some level of access to digitally preserved works is important because without
it, preservation is often merely an academic exercise. Obviously, researchers and the public must
have access to digitized pre-1972 sound recordings for the furtherance of public knowledge about
our cultural patrimony, and for the light that these recordings can shine on the times in which they
were recorded – basically, for the reasons we study film, literature, music, and any other product
of the mind.
359
Access also propels the “progress of science” in that current creators are able to
build upon what has come before.
A more nuanced point suggested by several stakeholders in the written and oral
comments is that access is the key to obtaining funding for preservation.
360
At a practical level,
granting organizations are seemingly reluctant to fund projects that will have no visible public
benefit.
361
To the extent a project manager can apply funds not only to the preservation of
remedies and could increase potential liabilities for infringement, thereby increasing the risk involved in
judging the legality of any particular use”).
359
One commenter noted that, as a scholar focusing on music of the late 19th Century through the 1930s,
he could upload prints and photographs to the web, but not sound recordings, a situation that he found
“often blocks the academic sharing of sources in ways that could offer the best grounding for a study’s
interpretations; the best sense of key historical, aural contexts for those sources; the best platform from
which other scholars might assess, recontextualize, reinterpret, and teach from those sources; and the
richest means by which students and the public could explore and learn from documents of our musical
past.” Lancefield at 1.
360
See, e.g., LOC at 3 (“preservation funding is often tied to the ability to make material available to the
public”); SAA at 3 (“the funding and scope of preservation programs are closely related to the extent to
which the preserved items can be made readily available for research use”).
361
See MLA at 3 (“donors generally expect tangible results which show the funds were spent wisely. This
becomes especially important when seeking follow-up grants or permanent institutional funding. Results
are typically measured in terms of the project’s impact: the number of people who have used the materials,
the dissertations, articles or books that are generated from it, etc. A digitization project which saves
materials for the future but which cannot make them widely accessible, does not tend to be viewed
favorably”).
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important sound recordings, but also to making them available for the public to listen to, funding
is more likely.
362
One example of the importance of public access to receiving grants is the National
Endowment for the Humanities (NEH) guidelines for humanities collections and reference
resources grants. These describe the NEH’s expectation that the products of its grants will be
publicly available, preferably through the Internet, and in fact forbid the use of grants for
“preservation, organization, or description of materials that are not regularly accessible for
research, education, or public programming.”
363
The importance of public access to the awarding
of NEH grants was emphasized by a program officer who said that for an application, failing to
provide for availability of preserved materials would be a “fatal flaw.”
364
The key question, then, is not “should this be accessible?” but “when should this be
accessible, in what way, and to whom”? Sometimes the rights of authors or other interested
parties may caution against making preserved works immediately available to the public via the
Internet, because of copyright or privacy considerations. At other times, immediate access may
be appropriate, but perhaps only to select credentialed researchers, or only on the premises of the
custodial institution. In general, some level of access appears to be a goal that all stakeholders in
pre-1972 sound recordings can share.
365
362
See Brylawski T1 at 51 (“But now as we compete for grants, as our institutions compete for grants with
other institutions, those institutions that can provide access to their preserved materials are – we find are the
ones that are getting funding. This was brought up in much of the oral testimony at the hearings in Los
Angeles and New York that were conducted for the National Recording Preservation Board.”).
363
See http://www.neh.gov/grants/guidelines/HCRR.html, last visited Dec. 1, 2011.
364
Phone conversation with Charles Kolb, Senior Program Officer, National Endowment for the
Humanities, Division of Preservation and Access, Nov. 10, 2011.
365
See RIAA/A2IM at 4 (“The RIAA and A2IM take great pride and care in the preservation of the
recordings in their respective catalogs, and consider it a part of their civic responsibility to work on or assist
with the preservation of and access to all historical recordings, whether of commercial interest or not”).
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2. Impact of Federalization upon Library and Archives Public Access
Activities
a. Types of access expected
When libraries, archives, and scholars speak of “access” it is not always clear whether
they are referring to the entire spectrum of access, from on-premises only to posting on a website,
or only to one or the other end of that spectrum. In the proceedings for this Report, some stated
definitively that only physical reissues or downloads could meet the access needs of the scholarly
community.
366
Others provided a range of access possibilities, from making digitized copies
available to researchers and making copies for interlibrary loan, to creating digital exhibits and
on-line curricula for independent learners.
367
In addressing public access, comments from the
user community consistently asserted that they had no intention of impinging on commercial
activity, which they conceded was the proper sphere of the record companies.
368
b. Likelihood of increased public access
Not every provision of public access to a work necessarily implicates an exclusive right.
Nevertheless, most stakeholders from the user community maintained that federal protection
would encourage the provision of public access.
369
366
See Brooks T1 at 110-12 (“I would be skeptical of considering streaming with no right to actually use
the source sound document as constituting availability. We can debate that, but I would question that. On
the other hand, availability through something like iTunes or something where you could actually get your
hands on the file and hold the file and use and study the audio file might [constitute availability].”); but see
Starr-Gennett 7b at 2 (“Our goal as a not-for-profit educational institution is to interpret the contributions of
Gennett Records partly by making digital versions of its recordings (as well as the actual records) available
to researchers and by streaming the digital versions of the recordings to the general public through our own
website or through arrangements with third parties.”).
367
Harbeson T1 at 199-201.
368
Loughney T1 at 203-04 (“It would be a real pressure valve to provide access without stepping on the
rights of right holders or potential rights holders who might want to come in and relicense that material and
reissue it, which I think is not our business and that’s your business, and we are happy to help you do it.”).
369
See SAA at 5 (“Although the current provisions in Section 108, especially Sections 108(b) and 108(c),
are inadequate at providing access in any meaningful way, the availability of provisions of Sections 108(d)
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In copyright parlance, “access” can take the form of distribution (when a copy or
phonorecord of a work is disseminated to the public “by sale or other transfer of ownership, or by
rental, lease, or lending”)
370
or public performance (a limited right in the context of sound
recordings, which extends only to public performances “by means of a digital audio
transmission”).
371
Streaming, whether interactive or noninteractive, implicates the public
performance right. The rights of distribution and public performance are exclusive rights of the
copyright owner, although the public performance right for digital audio transmissions is subject
to a statutory license for noninteractive transmissions.
372
The distribution right is limited by section 109(a) of the Copyright Act (the “First Sale”
exception),
373
which provides that the owner of any copy of a work may sell, lend, or otherwise
dispose of it. This is the exception that allows libraries and used bookstores to operate without
paying royalties to authors or other right holders – for instance, by lending copies of a CD. There
is not, however, a federal exception expressly allowing libraries to publicly perform works over
the Internet (e.g., streaming).
Federalizing protection would make access to pre-1972 sound recordings through
libraries lawful in many instances in which state law rules are unclear at best. To the degree that
access is by means of an on-premises visit – for example, to listen to a non-digitized 78 or LP —
federal protection would likely make little difference, since such listening has been going on for
decades without any legal difficulties. If access involves listening to digitized sound recordings,
such as by means of on-premises listening to an unpublished or replaced work copied under
and 108(e) would provide a definite improvement in access to non-musical sound recordings for local and
remote users”); MLA at 6.
370
17 U.S.C. § 106(3).
371
17 U.S.C. § 106(6).
372
17 U.S.C. § 114.
373
17 U.S.C. § 109(a).
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99
section 108, then federal protection would certainly lead to (or at least make lawful) increased
access. It would do so through the application of sections 108(b) and 108(c), which permit on-
site access to copies made for preservation and replacement purposes. The same conclusion
applies to certain uses of a sound recording in the last 20 years of its term of protection (section
108(h)), and to any uses that are legitimate under the fair use provision. These provisions would
encourage the provision of public access, it was argued, by offering relatively clear and
unambiguous exceptions that can be understood and implemented by libraries and archives.
374
Additionally, federal protection might lead to increased access simply by virtue of putting
pre-1972 sound recordings into the federal system. Once there, they will be eligible to benefit
from any future changes to copyright law that may themselves directly affect public access, such
as orphan works legislation or section 108 reform.
To the extent that federalization would result in some sound recordings entering the
public domain before 2067 (discussed below in Chapter VI), access to those recordings would be
substantially enhanced.
Much of the commentary from libraries and archives regarding public access under
federal protection implicitly assumed that the fair use provision (section 107) would support
greater public access.
375
The Office feels constrained to note, however, that unlike digital
copying for preservation, as a general matter making protected works broadly available –
particularly on the Internet – has a weaker claim to fair use since it risks undermining any current
or future market for the work. Fair use does not ordinarily permit dissemination of a work in
competition with the copyright owner or in ways that adversely affect the potential market for the
work. On the other hand, fair use may permit a library, in appropriate circumstances, to make a
374
LOC at 5.
375
See, e.g., LOC at 5.
United States Copyright Office PRE-1972 SOUND RECORDINGS
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single copy of a copyrighted recording for a scholar or researcher even where the underlying
work remains protected by copyright.
c. Likelihood of decreased public access
Some stakeholders argued that federal protection may lead to decreased rather than
increased access to pre-1972 sound recordings.
376
Right holders argued that the tendency towards
risk-aversion that currently restrains libraries and archives from using the gaps in state law to
provide public access to their digitized works would operate in the same way under federal
protection. They suggested that the uncertainty of fair use could further inhibit public access
because it would hold users back.
377
“The better goal” than seeking federal protection, the right
holders maintained,
is to encourage donation to public libraries and archives of master materials by
record labels – large and small that cannot or are not able (for financial or other
reasons) to preserve their own master materials – and to include access to such
materials to the extent agreed upon. The same is true for bona fide record
collectors and enthusiasts – of niche materials – to get more materials, especially
rare cultural and historical materials, into public institutions, and ultimately to the
general public.
378
D. Economic Impact on Right Holders
The economic impact of federal protection on those who own the rights in pre-1972
sound recordings can be assessed in two ways. One way is to attempt to determine how federal
protection will affect the value of pre-1972 sound recordings per se. That is, will the fact that a
recording is protected by federal and not state law affect its worth in the marketplace? What
aspects of federal protection will likely be most determinative? How does the nature of the effect
change depending on what recording or group of recordings one is examining?
376
See RIAA/A2IM at 20-21; ARL/ALA at 4-6.
377
RIAA/A2IM at 20-21.
378
Id. at 21.
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The second way of determining the economic impact of federal protection is to look at
how federal protection might affect the settled business expectations of right holders. For
example, if a contract is written with the expectation that state law will govern, what happens
when the federal statute becomes the underlying law? Additionally, how would the federal rules
governing initial ownership, transfer of ownership, termination of transfers and licenses, and
registration affect a recording fixed under state law? The stakeholders had many views on these
and related issues, which are set forth below.
1. Value of Pre-1972 Sound Recordings
The present value of pre-1972 sound recordings varies substantially. There is a small
number (proportionate to the total number of sound recordings made) of commercial recordings
that continue to prove remunerative to their owners, such as titles by Louis Armstrong, Bing
Crosby, Frank Sinatra, Elvis Presley, and the Beach Boys, and record companies are continuing
to reissue sound recordings for niche markets.
379
However, the vast majority of pre-1972 sound
recordings are either unpublished (such as field recordings) or, if published, have ceased their
commercial life.
380
In particular, scholars pointed to pre-1925 recordings, stating that “an average
of fewer than 4% of historically important pre-1925 recordings have been reissued in any form by
right holders, and the revenue from that 4% has to be tiny given the lack of marketing of such
reissues.”
381
They also stated that
Fundamentally, older recordings that are still economically viable are nearly
always those made within the lifespan of contemporary record buyers. This has
been true throughout the history of the marketing of sound recordings.
382
379
Bengloff T1 at 121-22.
380
See, e.g., SAA at 7.
381
ARSC at 3.
382
Id. at 4.
United States Copyright Office PRE-1972 SOUND RECORDINGS
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a. Benefits and disadvantages of federal protection
Stakeholders presented competing views of how federal protection would affect the
economic value of pre-1972 sound recordings. Given that most pre-1972 sound recordings likely
have little or no economic life at all, the discussion centered on commercially released recordings.
A primary concern about the economic effect of federal protection was the likelihood of
early sound recordings entering the public domain, and thus becoming less profitable for their
former right holders. ARSC maintained that right holders could still enjoy a modest income from
selling public domain works, given that in many cases they would still own the master recordings
and could lease these to reputable reissue labels.
383
ARSC also pointed out that public domain
reissues could be useful in identifying recordings with unexpected commercial viability, which
the former right holder could then exploit.
384
MLA cited the competitive trade in public domain
books as evidence that earning money through works in the public domain is possible.
385
RIAA,
however, disagreed, saying that once a recording is available for free downloads, with no
copyright for the uploader or the distribution site to worry about, the business model for record
companies is extinguished: “there is all but zero value to a record company in a public domain
recording.”
386
Some stakeholders also maintained that, while the entry of early sound recordings into
the public domain might not redound to the profit of the (former) copyright owner, it could create
economic value for third-party reissue labels.
387
Under this scenario, once libraries and archives
383
ARSC at 7.
384
See id.
385
Harbeson T1 at 179.
386
Pariser T1 at 295.
387
See MLA at 10 (“The commercial value of the recording and the commercial value to the current
copyright holder are not the same thing. A copyright holder may, for lack of interest or knowledge, fail to
exploit a work to its full commercial value. In such a case, the value to the owner would be less than the
value of the recording. A measure of the commercial value of the recording should include not only the
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preserve and make public domain sound recordings publicly accessible, such access will spur
demand for consumer-ready packages of these recordings, which will help third-party labels
388
(as
well as, one supposes, the “original” labels that chose to compete in this sphere).
389
b. Effect of exclusive rights
Federal protection would, for the first time, allow pre-1972 sound recordings to enjoy a
defined set of unambiguous, though limited, exclusive rights. Specifically, the owner of a
copyright in a sound recording enjoys the exclusive rights of reproduction, preparation of
derivative works, distribution, and public performance via a digital audio transmission.
390
In
contrast, the rights conferred by state law are typically either narrower or often ambiguous.
391
While some states’ civil statutes confer exclusive rights upon owners of copyrightable works,
392
most do not. The economic effect of these additional exclusive rights conferred by federal law is
that their holders are granted monopoly power over certain actions, and can exercise this power to
their financial benefit by selling copies of the recordings, or licensing the rights to make
derivative works from the recordings.
revenue it brings to the copyright holder, but all potential revenue that it could command.”); see also EFF
at 12.
388
See MLA at 10-11 (“bringing pre-1972 sound recordings under federal law best satisfies the
Constitutional goals of copyright by insuring that as many lawfully-made recordings as possible are
available to the public, whether it be through the marketplace or in libraries. Doing so can do no harm to
the commercial viability of a recording; indeed, in some cases it may be beneficial by fostering renewed
interest and demand.”).
389
Harbeson T1 at 179.
390
17 U.S.C. § 106. The exclusive right of public display does not apply to sound recordings.
391
See supra, Chapter II.E.
392
CAL. CIV. CODE § 980(a)(2) (“The author of an original work of authorship consisting of a sound
recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15,
2047, as against all persons except one who independently makes or duplicates another sound recording
that does not directly or indirectly recapture the actual sounds fixed in such prior sound recording . . .”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
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One notable aspect of federal protection that could well affect the value of pre-1972
sound recordings is the exclusive right “to perform the copyrighted work publicly by means of a
digital audio transmission.”
393
This is the legal mechanism, along with section 114, that insures
royalty payments (and, in cases falling outside section 114’s exceptions and its statutory license,
exclusive rights) to owners of sound recordings that are publicly performed via the Internet or
satellite radio. Like the rest of federal copyright law, the public performance right only applies to
works protected by federal law. Thus, pre-1972 sound recordings that presently do not earn
public performance royalties could become a significant revenue stream once incorporated into
the federal statute.
394
c. “Long tail” effect on commercial prospects of older recordings
A number of commenters, particularly ARSC, asserted that reissuing early (meaning, for
the most part, acoustical-era) recordings is unlikely to be profitable. This point was made in the
service of the argument that the movement of such early recordings into the public domain under
federal protection would not negatively affect the record companies’ bottom line.
395
In response,
members of the right holder community maintained that (1) there is no way to truly know what
old music styles will become popular again, and (2) it is necessary to retain state protection until
2067 because the so-called “long tail” phenomenon suggests that these older works take longer to
earn a return on their investment.
396
393
17 U.S.C. § 106(6).
394
See Brylawski T1 at 174-75.
395
See ARSC at 4.
396
Bengloff T1 at 31, 33-34; see also Chris Anderson, THE LONG TAIL: WHY THE FUTURE OF BUSINESS IS
SELLING LESS OF MORE (2006).
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ASRC, citing to the Brooks Study findings that 4% of pre-1925 recordings have been
reissued by right holders, with an increase to 12% for 1925-1939 recordings,
397
argued that these
numbers showed that right holders historically have not put a lot of stock in the earning potential
of early music reissues.
398
Both A2IM and NMPA made the point that one can never assume
what will ultimately prove commercially viable, particularly for smaller labels catering to niche
audiences,
399
and that it is too risky to base federal policy upon a presumption as to which pre-
1972 sound recordings will have value in the future.
400
Additionally, A2IM explained that under the “long tail” theory, a large number of
heretofore-“niche” cultural products will earn as much as the small number of blockbuster works
when viewed over a longer period of time, because it has become easier to exploit niche markets.
Hence, it argued, pre-1972 sound recordings that would have been allowed to go out of print in
the past are now being kept in the marketplace on the theory that they and their audience will find
each other.
401
However, A2IM stated that bringing a high quality recording to market requires a
financial investment, and in order for early recordings to earn the requisite return on investment
they cannot be allowed to go into the public domain.
402
2. Settled Expectations in Business Transactions
The second way in which federal protection might affect the economic value of pre-1972
sound recordings is by upsetting the settled business expectations of major sectors of the music
397
ARSC at 3.
398
See id.
399
Bengloff T1 at 121; Rosenthal T1 at 62-63.
400
Rosenthal T1 at 62-63.
401
Bengloff T1 at 31-34.
402
Id. (“As technology changes, we have to go back and increase the number of kilobytes that are available
so our music sounds like it should be sounding, be able to deliver it, bring it to market and a variety of
other areas.”).
United States Copyright Office PRE-1972 SOUND RECORDINGS
106
industry. Stakeholders had very different views on the degree to which settled business practices
might be altered, as well as on what economic impact such alteration would cause. All of the
commenting parties were united, however, in wanting the least possible amount of disturbance to
the current record company business model. Contractual arrangements, ownership, transfer,
termination, and registration were among the topics addressed.
a. Existing contractual arrangements
In their written comments, RIAA and A2IM pointed out that many of the pre-1972 sound
recordings to which their members own the rights are licensed in both hard copy and in digital
form through multiple contracts. These contracts are predicated upon state laws, and the right
holders claimed that putting pre-1972 sound recordings under federal protection would “render
many deals unclear (at best), make others more difficult to interpret, and would likely result in
financial losses.”
403
The contents of entire catalogs, they warned, could be tied up in court, with
the possibility that the recordings at issue would be withdrawn from public availability.
404
Beyond financially harming the recording industry and decreasing public access to pre-1972
sound recordings, RIAA also predicted that these complications would divert record companies
from engaging in cooperative access programs with libraries and archives.
405
In response to the expressed concerns about contract uncertainties, user groups stated that
the contract issues “would continue to be resolved under state law as they had before” federal
protection.
This raises an important point, that the degree to which contracts, as well as ownership,
termination, and other matters discussed later in this Chapter are affected will be determined not
403
RIAA/A2IM at 31.
404
Schwartz T1 at 23; see also Rosenthal T1 at 245-46.
405
Schwartz T1 at 23.
United States Copyright Office PRE-1972 SOUND RECORDINGS
107
by federal protection itself, but by the manner in which it is achieved – specifically, how federal
copyright law will apply, and in what cases state laws would continue to control. These questions
are addressed in detail in Chapter VI of this Report.
b. Ownership, including transfer, termination, and registration
The RIAA and A2IM stressed in their written and oral comments the great degree to
which questions of ownership (such as transfer and termination) and related responsibilities (such
as registration) would be thrown into chaos upon the institution of federal protection for pre-1972
sound recordings. In other words,
all of the legal uncertainty and what we think would be litigation and other sorts
of ways of sorting out how to deal with things like ownership and authorship and
term and all that, it just detracts from the economic value of the rights.
406
Recall that, when discussing preservation and access, libraries and archives were portrayed as
overly risk-averse, and claimed they should not be forced to work under such legal uncertainty.
In the discussion of how federal protection would affect ownership and related matters, the roles
have switched, with record companies claiming they will be unfairly forced to face uncertainty,
and user groups claiming that the cited risks being pointed out were overblown or nonexistent.
Regarding initial ownership (and it should be kept in mind that the following discussions
will be expanded upon in Chapter VI), right holders expressed concern that what was clear under
state laws would be unclear, or even invalidated, once ownership documents and chain of title
were examined under federal law.
407
For example, it was noted that in some states ownership
passes with the possession of the physical master recording, a situation that does not exist under
federal law.
408
This conflict, warned the RIAA and A2IM, would lead to uncertainty and even
406
Chertkof T1 at 176-77.
407
RIAA/A2IM at 26-27.
408
RIAA/A2IM at 26; Feaster at 8-9.
United States Copyright Office PRE-1972 SOUND RECORDINGS
108
litigation in the course of attempting to reconcile the state and federal standards.
409
Another
ownership concern was related to “works-made-for-hire”: would a recording considered to be a
work made for hire under state law at the time of its creation have to be reconsidered under the
federal copyright law standards?
410
If such a reconsideration created a different ownership
interest, how would this affect downstream contracts and licenses?
411
These conflicts, warned
RIAA and A2IM, would lead to uncertainty and litigation in the course of attempting to reconcile
the state and federal standards.
412
The problems caused by differing interpretations of initial ownership would be
compounded, according to the RIAA and A2IM, when considering transfer of title (how can you
transfer if you do not know the owner?) and termination of transfers and licenses (when a deal is
struck in the absence of a termination provision, is it fair to subsequently seek to terminate the
transfer?).
Stakeholders representing users of pre-1972 sound recordings had varied responses to
these right holders’ concerns. The SAA pointed out that a similar “federalization” of state-
protected works (namely unpublished works) occurred by reason of section 301(a) of the
Copyright Act of 1976, and that it was unaware of any cases involving such works that hinged
upon state definitions of ownership.
413
SAA conceded, however, that determining whether or not
a recording was a work made for hire would be difficult.
414
ARSC took another position on the
work made for hire issue, saying that “early sound recordings were generally made under true
409
RIAA/A2IM at 27.
410
See id. at 26.
411
See id. at 24-25.
412
RIAA/A2IM at 27.
413
SAA at 7-8.
414
See id. at 8.
United States Copyright Office PRE-1972 SOUND RECORDINGS
109
employment conditions; these works would, therefore, qualify as works made for hire.”
415
ARSC
also pointed out that, for commercial recordings, the vast majority of commercial recordings
continue to be owned by a known entity, and that the real problem is in determining who owns
orphan and unpublished works.
416
Finally, ARSC also asserted that ownership simply wouldn’t
be affected by the advent of federal protection for pre-1972 sound recordings because
federal copyright in a pre-1972 sound recording would vest in the initial owner of
the work as determined by the law of the state with the most significant
relationship to the sound recordings and the parties, and no divestiture or transfer
of rights would result.
417
With respect to termination of transfers and licenses of rights in pre-1972 sound
recordings, one stakeholder commented that even if federal protection applies, pre-1923 sound
recordings should continue to be exempt from the termination provision on the grounds that
termination in general is contrary to free-market principles.
418
Another disagreed, arguing that
performers of pre-1972 sound recordings should enjoy the same right of termination that their
post-1972 colleagues enjoy.
419
Copyright registration was another issue that right holders raised. Timely registration is
required to preserve a copyright holder’s ability to use the registration certificate as prima facie
evidence of the validity of the copyright and the facts stated in the certificate.
420
Timely
registration is also required for a copyright owner to be eligible for statutory damages and
415
ARSC Reply at 18.
416
ARSC at 4-5.
417
ARSC Reply at 13.
418
Hoffman Reply at 1.
419
Artist’s Reprieve Reply at 1-2.
420
17 USC § 410(c). The certificate has prima facie weight only if registration was made before or within
five years after first publication of the work.
United States Copyright Office PRE-1972 SOUND RECORDINGS
110
attorney’s fees as the prevailing party in an infringement suit.
421
Under section 411 of the
Copyright Act, a right holder may not sue for infringement of a U.S. work unless it first registers
the work with the U.S. Copyright Office. While some right holders register only just before
going to court, the preferred method is to register upon creation or publication,
422
which preserves
the ability under section 412 to seek an award of statutory damages and attorney’s fees.
Obviously, no pre-1972 sound recordings have been registered, because federal copyright law
does not apply to them. If federal protection applies, will registration become a problematic
issue? A2IM noted that
To be able to defend your rights, you have to register your music. It would be a
burden in terms of manpower, finances, and a variety of other ways for us to
continue to protect our pre-1972 copyrights if they were federalized. A real cost
burden.
423
Alternatively, RIAA expressed concern that sudden imposition of a registration requirement
would mean that pre-1972 sound recordings would be “devoid of effective remedies” under
federal protection.
424
In response, ARSC said it would be “delighted” if federal protection
produced a torrent of new sound recording registrations because it would “promote predictability
and public access to these works, as well as aid in the preservation of historic recordings.”
425
421
A prevailing plaintiff may seek an award of statutory damages and attorney’s fees only if the infringed
work was registered prior to the commencement of the infringement or within three months after first
publication of the work. 17 U.S.C. § 412. Different rules apply to works that have been “preregistered”
under section 408(f), but no pre-1972 sound recordings would qualify for preregistration. See id.
422
Pariser T1 at 281.
423
Bengloff T1 at 31.
424
RIAA at 30.
425
ARSC Reply at 18.
United States Copyright Office PRE-1972 SOUND RECORDINGS
111
c. Potential for a decrease in availability of pre-1972 sound
recordings as result of business burdens
RIAA and A2IM warned that the burdens caused by a “protracted legislative process”
could redirect their members’ resources away from cooperative preservation and access programs
such as the Library of Congress’s National Jukebox.
426
They also raised the specter of “a freeze
on availability of many pre-1972 sound recordings” due to difficulties in tracing ownership.
427
Finally, A2IM suggested that the costs of dealing with ownership issues and registration could
mean “less and less investment” in indigenous American music of the sort that demonstrates
“America’s cultural diversity and tradition.”
428
Concerning the potential of a “freeze” on availability of pre-1972 sound recordings,
ARSC pointed out that “even traditional categories of works prepared before 1978 require a case-
by-case examination to determine the federal rights as of the date of preemption; the complete
freeze suggested by the RIAA/A2IM has not resulted from such a requirement.”
429
The real
source of scarce availability, ARSC said, is the confusion about which state laws apply and how
to apply them.
430
D. Alternatives to Federalization
Stakeholders were asked to address the possibility of bringing pre-1972 sound recordings
under federal law only for limited purposes. The Notice of Inquiry noted that some stakeholders
seek to ensure that current state law rights in pre-1972 sound recordings are subject to the fair use
doctrine and the library and archives exceptions found in sections 107 and 108, respectively, of
426
RIAA/A2IM at 5.
427
Id. at 27.
428
Bengloff T1 at 31-34.
429
ARSC Reply at 13.
430
See id. at 14-15.
United States Copyright Office PRE-1972 SOUND RECORDINGS
112
the Copyright Act. It also noted that some would like to subject pre-1972 sound recordings to the
section 114 statutory license, but otherwise keep them within the protection of state law rather
than federal copyright law. The Office received a variety of comments in response to the
proposals referred to in the notice, as well as some new proposals for alternatives to federalization
of pre-1972 sound recordings.
1. Partial Federalization (e.g., only applying sections 107, 108 and/or 114)
The Notice of Inquiry raised the possibility of bringing pre-1972 sound recordings under
federal law only for limited purposes, i.e., retaining state law protection for the recordings but
subjecting them to the defenses provided by sections 107 and 108 of the Copyright Act and/or to
the statutory license provided by section 114 of the Copyright Act.
a. Sections 107 and 108
Several parties, including SAA, LOC, RIAA and A2IM, expressed the view that partial
federalization would be inappropriate. SAA offered that partial federalization would not resolve
the current complexity that impedes preservation and access for pre-1972 sound recordings, but
instead would merely add to the confusion and legal fees.
431
LOC agreed that partial
federalization would lead to more confusion regarding the boundaries of federal and state
protection.
432
RIAA and A2IM stated their belief that there are no advantages to providing partial
federalization, and that overwhelming legal challenges would ensue.
433
ARSC commented that partial federalization that simply applied the fair use doctrine and
the library and archives exceptions found in sections 107 and 108 to currently held state rights in
431
SAA at 10-11.
432
LOC at 12.
433
RIAA/A2IM at 30-31.
United States Copyright Office PRE-1972 SOUND RECORDINGS
113
pre-1972 sound recordings would be “extremely messy” in the real world. It added that such a
proposal would unfairly privilege certain institutions, which did not fall within the section 108
criteria.
434
ARSC, while supporting full federalization, endorsed partial federalization to the
extent necessary to ensure that First Amendment safeguards that are built into the current
Copyright Act are applicable to pre-1972 sound recordings. In its view, without the fair use
doctrine and the library and archives exceptions found in sections 107 and 108, state copyright
laws regarding pre-1972 sound recordings could be subject to invalidation on Constitutional
grounds.
435
MLA, while generally favoring complete federalization, reluctantly supported partial
federalization over the status quo.
436
b. Section 114
In 1995, Congress passed the Digital Performance Right in Sound Recordings Act of
1995 (“DPRA”)
437
which, for the first time, granted to copyright owners of sound recordings an
exclusive right to make public performances of their works by means of certain digital audio
transmissions, subject to a compulsory license for certain uses of these works codified in section
114 of title 17 of the United States Code. In the Digital Millennium Copyright Act of 1998
(“DMCA”),
438
Congress updated section 114 and expanded the scope of the compulsory license.
434
ARSC at 7. In its comment, ARSC identified organizations in Europe, where the “widespread
availability of historical public domain recordings … is precisely because anyone can make them
available.” Id.
435
ARSC Reply at 19-20. However, in its initial comment, ARSC observed that partial federalization that
simply applied the fair use doctrine and the library and archives exceptions found in sections 107 and 108
to currently held state rights in pre-1972 sound recordings would be “extremely messy” in the real world.
ARSC at 7.
436
MLA at 15-16.
437
Pub. L. No. 104-39, 109 Stat. 336 (1995).
438
Pub. L. No. 105-304, 112 Stat. 2286 (1998). Section 112 of the Copyright Act, 17 U.S.C. § 112, was
also amended to provide a statutory license for the making of certain “ephemeral” copies “used solely for
the transmitting organization’s own transmissions originating in the United States” under the section 114
United States Copyright Office PRE-1972 SOUND RECORDINGS
114
The result is that sound recordings are subject to a compulsory license for public performances by
means of certain nonexempt, noninteractive digital subscription digital audio transmissions. All
other public performances of sound recordings by means of certain digital audio transmissions,
including interactive digital transmissions, are subject to an unfettered exclusive right.
439
The
Office’s Notice of Inquiry asked for input on the impact of bringing pre-1972 sound recordings
into the section 114 statutory licensing mechanism, perhaps as an alternative to full federalization
of protection for pre-1972 sound recordings.
440
In its comments, SoundExchange stated that, while there is no need to completely
federalize pre-1972 sound recordings, there would be a benefit to requiring statutory services to
pay under the statutory license for pre-1972 sound recordings presently protected as a matter of
state law. It estimated that pre-1972 sound recordings account for 10-15% of usage by services
employing the section 114 license. It also observed that some services that publicly perform
sound recordings by means of digital audio transmissions are already making statutory royalty
payments under the section 114 license for pre-1972 sound recordings. It contended that such
payments for public performance of pre-1972 sound recordings are appropriate, and that
performances of pre-1972 sound recordings are subject to protection under state law, including a
state law performance right.
441
Both NAB and SiriusXM disputed SoundExchange’s view that state law provides a
public performance right in pre-1972 sound recordings.
442
NAB explained that SoundExchange
was referring to statutory and case law that is designed to address bootlegging and establish
statutory license. Because the section 112 statutory license and the section 114 statutory license go hand in
hand, this Report shall not specifically discuss the section 112 license beyond this footnote.
439
17 U.S.C. § 114.
440
Notice of Inquiry at 67780, 67781.
441
SoundExchange at 4-6.
442
SiriusXM Reply at 8-10; NAB Reply at 7-8.
United States Copyright Office PRE-1972 SOUND RECORDINGS
115
reproduction and distribution rights and claims regarding unfair competition. It asserted that such
law does not establish public performance rights.
443
SiriusXM added that requiring statutory
services to pay under the statutory license for recordings currently protected under state law
would provide an undeserved windfall for recordings created and paid for more than 40 years
ago, at the expense of services like Sirius XM. It also noted that to the extent that any services
are mistakenly making payments for public performance of pre-1972 sound recordings, that
SoundExchange should not be accepting or distributing such payments.
444
2. Limits on Remedies
At the public meeting, RIAA offered the concept of a registry containing data about pre-
1972 sound recordings which libraries and archives sought to preserve and to which they sought
to provide access.
445
This concept was also mentioned by Sony Music Entertainment, which
suggested the possibility that libraries and archives could publicly state their intention to use
certain identified works and have “some kind of potential immunity from litigation or prosecution
or statutory damages.”
446
MLA expressed interest in the value of such a proposal, and at the same
time agreed that many details would need to be addressed.
447
In a discussion with the Office subsequent to the roundtable, the NMPA also raised the
concept of limiting remedies for good-faith preservation and public access uses of pre-1972
sound recordings that are determined to be orphan works. As an alternative to a registry, NMPA
suggested a requirement of due diligence in the user’s search for the owner of a pre-1972 sound
443
NAB Reply at 7-8.
444
SiriusXM Reply at 5-6.
445
Chertkof T1 at 153.
446
Aronow T1 at 247-49.
447
Harbeson T1 at 264.
United States Copyright Office PRE-1972 SOUND RECORDINGS
116
recording, and suggested that the due diligence standard might vary according to the age of the
work. Those who fulfilled the due diligence standard and used pre-1972 sound recordings that
were therefore determined to be orphan works would be subject only to limited damages, perhaps
only to injunctive relief.
448
3. No Amendments to Federal Law, but Amendments to State Law Instead
At the public meeting, RIAA offered the possibility of amending state laws to provide
explicitly that preservation copying and providing certain types of access for older sound
recordings is permissible.
449
In response to this proposal, MLA raised concerns about the
inevitable lack of uniformity that would result from pursuing legislative amendments to state laws
to deal with what it perceives as a problem with broader scope. MLA noted that separate
provisions in each state would require libraries and archives to operate in a manner that complied
with the specifics of all, including the most restrictive, state provisions.
450
RIAA acknowledged
MLA’s concerns regarding uniformity, but suggested that amendments to state law were still a
good way to begin to address libraries and archives’ concerns.
451
It proposed that libraries, and
archives and right holders work together to draft a model state law. It indicated that such a model
state law could include “state fair use rights,” and that the parties could jointly introduce it to the
various state legislatures, beginning with the states that are already home to important
preservation and archival facilities.
452
The concept of a model state law received additional attention in a subsequent roundtable
session. Tomas Lipinski of the School of Library and Information Science at Indiana University
448
Copyright Office meeting with NMPA (June 21, 2011).
449
Schwartz T1 at 95-96.
450
Harbeson T1 at 95-97.
451
Schwartz T1 at 97.
452
Chertkof T1 at 145-47.
United States Copyright Office PRE-1972 SOUND RECORDINGS
117
suggested that approaching state law reforms in a manner similar to the Uniform Commercial
Code could help address issues of uniformity in the accommodations provided to libraries and
archives from one state to another. Mr. Lipinski acknowledged that the disadvantages of this
approach would include the risk of non-adoption or variation, and the fact that some sound
recordings would be covered by state law and some sound recordings would continue to be
covered by federal law.
453
He also clarified that a model state law would need to establish fair
use along the lines already established by federal case law.
454
Dwayne Buttler of University of
Louisville acknowledged the value in a model state law approach, especially one that included
fair use and accommodations such as those found in section 108. However, he also expressed
concerns about accomplishing universal implementation of any model law.
455
ARL expressed its
view that a model state law which filled in details regarding accommodations setting out fair use
and other exceptions for libraries and archives would be a wonderful alternative to
federalization.
456
While MLA reiterated its general opposition to solutions that fell short of full
federalization, it also noted that state law reforms could help its members considerably, especially
if such reforms included state fair use provisions.
457
RIAA reiterated its support for reforming
state laws and expressed optimism about developing a dialogue and working relationship with
libraries and archives that can address preservation of and access of pre-72 sound recordings.
458
453
Lipinski T2 at 474-76.
454
Lipinski T2 at 509.
455
Buttler T2 at 481.
456
Butler T2 at 482.
457
Harbeson T2 at 477-78.
458
Marks T2 at 485-87.
United States Copyright Office PRE-1972 SOUND RECORDINGS
118
4. No Amendments to Federal Law, but Use Private Agreements Instead
RIAA and A2IM pointed toward significant progress in the preservation of and access to
pre-1972 sound recordings achieved through private two-party agreements, such as the National
Jukebox and other private agreements with archives.
459
Sony Music Entertainment suggested that
similar private agreements could yield further positive results and should be pursued in place of
federalization.
460
Representatives of libraries and archives observed that private agreements,
while laudable, are too limited in scope, since they address only those parties who enter into
private relationships with right holders.
461
In addition to private two-party agreements, RIAA raised the prospect of a third party
entity, one that is not as risk-averse as libraries and archives, functioning as a clearinghouse that
could provide digital access, in a manner similar to that provided by iTunes, to pre-1972 sound
recordings for libraries and archives.
462
The Society for American Music (SAM) subsequently
suggested the possibility of establishing a for-profit or non-profit trust that could receive
donations or licenses from right holders that could be used to serve the preservation and access
needs of libraries and archives.
463
MLA expressed concern with such a plan because of the poor
quality of digital files for research purposes.
464
In the public meeting, RIAA also introduced the notion of a consent-not-to-sue
agreement that would be generally offered to libraries and archives for certain uses similar to
those that would be included in a model state law.
465
While several libraries and archive groups
459
RIAA/A2IM at 16-17.
460
Aronow T1 at 103-04.
461
ARSC Reply at 3-4.
462
Marks T2 at 488.
463
Brylawski T2 at 499-500.
464
Harbeson T2 at 503-04.
465
Marks T2 at 488.
United States Copyright Office PRE-1972 SOUND RECORDINGS
119
expressed interest in various private agreement models and a willingness to engage in further
dialogue, the consent-not-to-sue proposal did not result in any specific positive or negative
feedback from libraries and archive groups.
United States Copyright Office PRE-1972 SOUND RECORDINGS
120
Tape deck
V. DESIRABILITY OF FEDERALIZATION
While there are legitimate policy arguments on both sides of the question, the Copyright
Office has determined that on balance, the better course of action is to bring pre-1972 sound
recordings under federal jurisdiction.
When Congress abolished state common law copyright and brought almost all works of
authorship within the scope of the federal copyright statute in the Copyright Act of 1976, it did so
in order to substitute “a single Federal system for the present anachronistic, uncertain,
impractical, and highly complicated dual system.” It concluded that “the bill would greatly
improve the operation of the copyright law and would be much more effective in carrying out the
basic constitutional aims of uniformity and the promotion of writing and scholarship.”
466
Congress offered four reasons for abolishing the dual system: (1) to promote national uniformity
and to avoid the practical difficulties of determining and enforcing an author’s rights under the
differing laws and in the separate courts of the various States; (2) because “publication” no longer
served as a clear and practical dividing line between common law and statutory protection; (3) to
466
H. R. REP. NO. 94-1476, at 129 (1976).
United States Copyright Office PRE-1972 SOUND RECORDINGS
121
implement the “limited Times” provision of the Copyright Clause, by abrogating the state law
system of perpetual copyright for unpublished works; and (4) to “adopt a uniform national
copyright system [that] would greatly improve international dealings in copyrighted material.”
467
It is the first reason offered by Congress in 1976 that is most pertinent to whether pre-
1972 sound recordings should be brought into the federal statutory scheme.
468
National
uniformity of copyright law ensures that all users, consumers, intermediaries, and right holders
are operating under a single, consistent set of laws. This has been the goal of copyright law since
1790, and federal protection for pre-1972 sound recordings would be the last step in making it a
reality. A uniform national law also would ensure that all who operate under it would know what
rights and exceptions apply to their activities.
National uniformity and clarity are particularly important in the digital era, when libraries
and archives must reproduce works in order to preserve them and in many cases wish to make
them publicly accessible by means of distribution of phonorecords or by transmissions of public
performances. With a single set of applicable laws, even the most risk-averse institution can
make informed decisions as to what laws and what exceptions apply to its activities.
Why Congress did not incorporate pre-1972 sound recordings into the federal statute in
1976 is an interesting question, but neither the stakeholders nor the Copyright Office have an
answer to it. In fact, the reasons that compelled Congress to create a unitary federal copyright
system in the 1976 Act justify inclusion of pre-1972 sound recordings in that federal system
today. The policy considerations addressed above – certainty and consistency, preservation,
public access, and avoiding economic harm – all fall on the side of seeking federal protection for
pre-1972 sound recordings.
467
Id. at 129-30.
468
However, reasons (3) and (4) are also applicable. Congress abrogated perpetual protection of pre-1972
sound recordings in the Copyright Act of 1976, but implementation of the recommendations set forth below
would allow many of those works to enter the public domain before 2067. And bringing pre-1972 sound
recordings into the federal statute will complete the process of adopting a national uniform copyright
system, thereby facilitating international dealings in copyrighted material.
United States Copyright Office PRE-1972 SOUND RECORDINGS
122
For those reasons, federalization should apply almost all parts of Title 17 to pre-1972
sound recordings, including for example section 106(6) (public performance right for digital
audio transmissions), section 107 (fair use), section 108 (certain reproduction and distribution by
libraries and archives), section 110 (exemption for certain performances and displays),
469
section
111 (statutory license for cable retransmission of primary transmissions), section 112 (ephemeral
recordings), section 114 (statutory license for certain transmissions and exemptions for certain
other transmissions), section 512 (safe harbor for Internet service providers), Chapter 10 (digital
audio recording devices) and Chapter 12 (technological protection and copyright management
information). Some parts of Title 17 will require modification to apply to pre-1972 sound
recordings because the recordings were initially created, and in some cases exploited, outside the
federal system.
To be clear, there are practical issues in implementing federalization, as noted by some
stakeholders. However, the Office believes that those objections can be addressed. Likewise,
while the Office appreciates the careful thought put into alternatives to federal protection, it finds
that the proffered solutions would not go far enough to cure the difficulties caused by the current
state-by-state regime.
A. Certainty and Consistency in Copyright Law
Both ARL and ALA have noted, and the Copyright Office agrees, that traditional library
and archives activities are unlikely to violate state criminal sound recording piracy statutes. The
Office, like the Section 108 Study Group, also believes that the section 108 exceptions for
libraries and archives are out of date and should be updated.
470
However, these points do not
compel the conclusion that the uncertainty of state law is preferable to federal protection. In fact,
469
Note, however, that most of the subsections of section 110 do not apply to sound recordings. Only
sections 110(1), (2), and (5) apply to sound recordings, among other categories of works.
470
See supra Chapter III.B.2.a.
United States Copyright Office PRE-1972 SOUND RECORDINGS
123
the reluctance of many sound recording archivists and librarians to preserve and make accessible
pre-1972 sound recordings in cases where state law does not explicitly prohibit acts of
preservation leads to the opposite conclusion.
The permissible scope of activities in which libraries and archives can engage under state
civil law is more ambiguous than under criminal law, due to the variations among the states and
the lack of established copyright exceptions.
471
The possibility that a library’s activities in one
state might subject it to the laws of another state where the scope of protection is different – a
significant risk when works are made available online – creates additional uncertainty. Such
uncertainty unfairly favors those willing to test legal limits while disfavoring the risk-averse.
Federal protection would not eliminate the uncertainty, but it would equalize rights and
exceptions that would be applicable to sound recordings of all vintages. Section 108(h) may be
especially helpful: this provision offers a clear exception for libraries and archives to engage in
reproduction or distribution activities “for preservation, scholarship, or research” in the last 20
years of the term of protection of any published work.
472
Given the concern that many
commenters expressed regarding the length of copyright protection, this exception should prove
quite helpful in providing broader access to many pre-1972 sound recordings.
RIAA and A2IM have asserted that federal protection will actually create more
uncertainty for their member companies because of their long-standing reliance upon state law.
The Office does not take this reliance lightly. However, (1) the member companies of RIAA and
A2IM own but a small fraction of pre-1972 sound recordings (when non-commercial recordings
are taken into account), and of these, but a small fraction appear to enjoy any degree of
commercial viability, and (2) the record companies are presumably just as familiar with federal
copyright law, given their post-1972 recordings, as with state law, and should be able to
471
It should be kept in mind that civil actions are much more likely than criminal prosecutions in the
context of activities by libraries and archives.
472
17 U.S.C. § 108(h).
United States Copyright Office PRE-1972 SOUND RECORDINGS
124
maneuver within the federal system. Additionally, one must weigh the possibility of uncertainty
raised by RIAA and A2IM member companies under a federal system with the actual and
documented uncertainty faced by libraries and archives under the multiple state systems. Finally,
RIAA and A2IM raised the point that ownership of pre-1972 sound recordings may be difficult to
resolve. Ownership challenges are real, but they can be addressed by stating that for all pre-1972
sound recordings newly brought into the federal system, the ownership on the day of enactment
will be the same as the ownership on the day prior to enactment. (This would require a simple
amendment to the Copyright Act and is further discussed below in Chapter VI.)
Most of the user groups who commented during the study stated that applying federal law
would be, without more, a clear benefit simply from the perspective of providing consistent legal
guidance. The Office agrees with this position, and believes that it conforms with the intent of
Congress in 1976 when it sought to unify all kinds of copyrighted works (but one) under federal
law. Moreover, once ensconced within the federal system, pre-1972 sound recordings will
benefit from any changes made to Title 17 in the future, such as orphan works legislation or
amendments to section 108.
473
B. Promotion of Preservation and Appropriate Public Access
The Office believes that preservation of and provision of access to pre-1972 sound
recordings, as afforded by federal statutory exceptions to copyright law, would provide an
important public benefit. This is particularly true given the fragile physical state of many such
recordings and the inaccessibility of so much of the nation’s audio heritage. The Office also
credits the claims by libraries and archives that reliance upon federal exceptions will lead to more
473
These issues have seen considerable policy study and discussion in recent years and both are priorities
of the U.S. Copyright Office. See Priorities and Special Projects of the United States Copyright Office at
7-8.
United States Copyright Office PRE-1972 SOUND RECORDINGS
125
preservation and more public access, both from a structural (certainty and consistency of risk) and
substantive (use of the section 108 and fair use exceptions) point of view.
As illustrated in Chapter IV, federal protection will likely save libraries and archives
money and resources simply by virtue of providing a single source of law to consult when
engaging in preservation or public access activities. Furthermore, the Office credits the argument
that a legal advisor, such as a general counsel, will be more likely to approve a project that is
consistent with federal norms that have been explicated in a statute and through litigation and
commentary, rather than one based on uncertain or amorphous state law.
474
A second structural element of federal copyright protection that is likely to encourage
preservation and public access activities is the probability that if protection is federalized, some
sound recordings will enter the public domain within the lifetime of today’s practitioners. As
explained below in Chapter VI.C., one key aspect of the Office’s recommendations is that early
sound recordings not available in the marketplace within a reasonable period after the effective
date of legislation federalizing protection should enter the public domain at the end of a transition
period. In addition, the terms of post-1923 works will expire – again, absent a showing of public
availability – on the same schedule as other works of that vintage.
Substantively, the use of section 108 and the fair use exception should encourage more
preservation and public access because they provide time-tested rules with which libraries and
archives have experience. With respect to section 108, those rules offer specific safe harbors.
And fair use offers the flexibility to address situations that do not meet the requirements of a
section 108 provision but which nonetheless justify, under particular facts, an exemption from
liability. One specific element of section 108 in particular should prove useful: the section
108(b) exception for making preservation copies of unpublished works. Because the majority of
pre-1972 sound recordings are unpublished, risk-averse institutions with collections of such
474
See supra Chapter IV.C.2.a.
United States Copyright Office PRE-1972 SOUND RECORDINGS
126
works would have clear legal guidance that digitizing for preservation and for deposit with other
institutions under the terms of section 108(b) is a permissible activity.
“Access” is a term of art that itself raises complex questions of law and fact. As
discussed above in Chapter IV.C, it can mean anything from making sound recordings available
for on-premises listening to posting them online for downloading. Some commenters appeared to
assume that federal protection, and fair use in particular, would necessarily permit the latter. In
the Office’s view, federal protection would simply make providing public access to pre-1972
sound recordings subject to the same principles applicable to other categories of copyrighted
works. In the case of sections 108 and 107, they may allow some limited online access, but they
would not permit the mass posting of entire works on the Internet for unrestricted downloading or
streaming.
The Office believes that all of these considerations are important. Moreover, they are as
critical to access as they are to preservation. Federalization would allow preservation of and
access to more pre-1972 sound recordings, as well as finally bringing all fixed works of
authorship under a federal system. The key question addressed below is how to implement a
federalization scheme without harming the economic interests of right holders.
475
C. Avoiding Economic Harm to Right Holders
In general, the Office believes that federalization along the lines proposed in this Report
will not harm the reasonable economic interests of right holders because special provisions can be
crafted to confirm ownership and term of protection. By “reasonable,” it should be understood
that the Office seeks to preserve right holders’ ability to legitimately exploit economically viable
475
Bringing pre-1972 sound recordings into the federal system would also enhance access because online
music services and satellite radio services operating under the section 114 statutory license would have
clear authorization to make digital transmissions of public performances of those recordings.
United States Copyright Office PRE-1972 SOUND RECORDINGS
127
assets, but not to prevent third parties from using pre-1972 sound recordings in ways consistent
with federal copyright law.
Under a federal scheme, right holders will have their pre-1972 sound recordings subject
to the same rights and exceptions as their post-1972 recordings, as well as the same provisions
regarding damages and statutory licenses. Federal protection has largely developed in the United
States because it is better for right holders, not worse, a fact supported by how strongly the
recording industry fought for inclusion of sound recordings in the federal copyright law.
476
And
just as users of protected sound recordings will benefit from any new exceptions and limitations
Congress may enact in the future, so too will right holders enjoy additional rights that may
develop, and in this case, additional rights that already exist in federal but not state law. The
digital public performance right in section 106(6) is the prime example. This right is not explicit
in state law and not yet recognized by any state courts but provides revenue for the owners of
sound recordings under section 114.
Some right holders have suggested that, should early recordings go into the public
domain before 2067, they would be deprived of anticipated revenue, even if such recordings have
been commercially dormant for decades. This argument is based upon the “long tail” theory that
the ability to keep works commercially available, and reach niche markets, allows the right holder
to continue to earn revenue indefinitely. Certainly, the legitimate investments of right holders are
important, but most of the recordings that would go into the public domain immediately upon (or
soon after) federalization are so old, obscure, and poor-sounding to modern ears that they are
mainly of interest to scholars and hobbyists, and would fail to earn a meaningful return on
investment for a record company, particularly given the expense of preparing reissues that the
RIAA and A2IM noted. History shows, in fact, that record companies have heretofore reissued
476
In fact, at least at times during the process that led to the general revision of the copyright law and the
enactment of the Copyright Act of 1976, the recording industry supported bringing pre-1972 sound
recordings into the federal statute. See, e.g., Hearings on S. 597 Before the Subcomm. on Patents,
Trademarks and Copyrights of the S. Comm. on the Judiciary, 90th Cong. at 519 (1
st
Sess. 1967)
(Testimony of Clive Davis, CBS Records); see id. at 531-32 (Testimony of Henry Brief, RIAA).
United States Copyright Office PRE-1972 SOUND RECORDINGS
128
only a miniscule percentage of early recordings, presumably because it is not profitable to do
so.
477
Indeed, for pre-1925 (acoustical era) recordings, libraries and archives are well-situated
to play a role in making available to scholars and enthusiasts those works that most record
companies have elected not to reissue. While it is true that popular recordings remain popular
longer (was any recording from the 1920s as popular in the 1960s as the Beatles, or the Rolling
Stones, or Aretha Franklin, are today?), the likelihood of a profitable major label reissue of
acoustical-era recordings appears vanishingly remote. Indeed, the fact that a work may enter the
public domain while it is still earning money for its right holder is not necessarily a bad thing. As
Professor Elizabeth Townsend Gard observed at the roundtable,
The [way the] system works is that you get a limited monopoly for a particular
amount of time, and then when it’s over, it goes into public domain. Even if it’s
making lots of money, it still goes into the public domain.
478
Under this view, injecting into the public domain a work with earnings potential would
not be contrary to copyright law and policy, but entirely consistent with it, even if the
recording has some potential to earn a bit of money. The Office is aware that any
federalization plan must be consistent not only with copyright law and policy, but also
with the takings clause of the Fifth Amendment. That issue is explored below in Chapter
VI.B.2.
D. Appropriate Application of Section 114 License and the “Safe Harbors” of
17 U.S.C. § 512 and the Communications Decency Act
The Copyright Office believes that all of the rights, limitations, and exceptions of Title 17
should apply to pre-1972 sound recordings, with the exception of certain sections dealing with
477
The Office’s recommendation regarding term of protection for pre-1972 sound recordings – see infra
Chapter VI.B.-C. – would allow right holders to retain copyright protection until 2067 for works that they
keep reasonably available to the public until that date.
478
Townsend Gard T2 at 430.
United States Copyright Office PRE-1972 SOUND RECORDINGS
129
issues such as ownership, term of protection, and registration that should be specially modified to
achieve the transition from state to federal law. Although some stakeholders, either at the
roundtable or at separate meetings with Copyright Office staff, indicated some discomfort with
the application of sections 114 and 512 of the Copyright Act to pre-1972 sound recordings, the
Office concludes that both provisions should apply to pre-1972 sound recordings after
federalization is effective. In contrast to sections 114 and 512, the Office does not believe the
safe harbor of section 230(c) of the Communications Decency Act (“CDA”) should apply to
digital transmissions of phonorecords or public performances of pre-1972 sound recordings. In
any event, federalization would clarify the issue by subjecting the use of sound recordings to the
safe harbor of section 512 rather than the broader CDA safe harbor.
1. Section 114
In reviewing the potential application of section 114 to pre-1972 sound recordings, the
Office believes that section 114’s statutory royalty requirements should apply to nonexempt,
noninteractive digital transmissions of those recordings, thereby providing an additional revenue
stream for older artists and works. It would also moot the question of whether state laws should
provide a public performance right for pre-1972 sound recordings, a question for which diverse
practices have emerged. That is, while some services operating under the section 114 license pay
royalties for the transmission of public performances of pre-1972 sound recordings, others do not.
It is not clear from the record whether those services pay royalties due to their reading of state
law (or out of an abundance of caution due to the uncertainty as to what state law might require),
because they do not realize that the rules may be different with respect to pre-1972 sound
recordings, or because it is too difficult (or not cost-effective) to determine which sound
recordings are not protected by federal copyright law and arguably do not require payment. With
federalization of protection for pre-1972 sound recordings, all sound recordings would be treated
the same for purposes of Section 114.
United States Copyright Office PRE-1972 SOUND RECORDINGS
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The Office thinks it is unreasonable for the age of a sound recording to dictate whether
royalties are paid on public performances by means of digital audio transmissions, so long as
copyright subsists in that sound recording. Bringing pre-1972 sound recordings within the scope
of federal protection would subject them to the statutory license and provide online music
services with an easy means to offer lawful public performances of those recordings while
offering copyright owners and performers a reliable new source of income.
2. Section 512
The Office sees no reason – and none has been offered – why the section 512 “safe
harbor” from liability for monetary and some injunctive relief should not apply to the use of pre-
1972 sound recordings. The Office understands and is not unsympathetic to the fact that many
copyright owners are dissatisfied with the way in which some courts have interpreted aspects of
section 512. It may well be that in light of the quantitative and qualitative changes involving so-
called “user-generated content” on the Internet as well as the practical difficulties, for both
copyright owners and Internet service providers, of dealing with the unanticipated large volume
of “take-down” notices generated in response to massive infringement on the Internet, Congress
might want to take another look at section 512 to determine whether it requires updating or other
refinements to reflect current conditions. To be clear, section 512 was innovative legislation
when it was enacted in 1998 and the concept of providing safe harbors for certain good faith acts
on the Internet remains a sound principle. The point for purposes of this Report is that there is no
policy justification to exclude older sound recordings from section 512 or other future provisions
of law to the extent other sound recordings – and for that matter other works of authorship –
remain subject to its provisions.
One court has ruled that section 512 currently applies to pre-1972 sound recordings.
However, the ruling in Capitol Records, Inc. v. MP3tunes was made on highly questionable
United States Copyright Office PRE-1972 SOUND RECORDINGS
131
grounds.
479
The text of section 512(c) states that a “service provider shall not be liable for
monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief,
for infringement of copyright by reason of the storage at the direction of a user of material that
resides on a system or network controlled or operated by or for the service provider” if the service
provider complies with a number of requirements.
480
The court in MP3tunes stated that “[t]he
text of the DMCA limits immunity for the ‘infringement of copyrights’ without drawing any
distinction between federal and state law.”
481
The court in MP3Tunes made this determination
despite the fact that section 301(c) states “[w]ith respect to sound recordings first fixed before
February 15, 1972, any rights or remedies under the common law or statute of any State shall not
be annulled or limited by this title until February 15, 2067.”
482
The court in MP3Tunes correctly
observed that “section 301(c) does not prohibit all subsequent regulation of pre-1972
recordings.”
483
However, its conclusion that Congress did in fact subsequently regulate pre-1972
sound recordings in section 512(c) is difficult to square.
Section 512(c) does not include any provision explicitly limiting remedies available for
owners of pre-1972 sound recordings. Instead, section 512(c) refers to “infringement of
copyright”
484
which is defined in section 501(a) as the violation of “any of the exclusive rights of
the copyright owner as provided by sections 106 through 122.”
485
The fact that the term
“infringement of copyright” only refers to infringement of rights protected under title 17, and
479
Capitol Records, Inc. v. MP3tunes, LLC, ___ F.Supp.2d ___, 2011 U.S. Dist. LEXIS 93351, 2011 WL
5104616 (S.D.N.Y. Oct. 25, 2011).
480
17 U.S.C. § 512(c).
481
MP3tunes, 2011 U.S. Dist. LEXIS 93351, at *27.
482
17 U.S.C. § 301(c).
483
MP3tunes, 2011 U.S. Dist. LEXIS 93351, at *27.
484
17 U.S.C. § 512(c).
485
17 U.S.C. § 501(a).
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132
does not include infringement of rights protected under common law or statute of any State, could
not be more clear. The statute’s plain text reveals a narrow definition of “copyright
infringement” which is buttressed by the language of section 301(c). The court in MP3Tunes
concluded that such a narrow reading would be at variance with the policy of the DMCA as a
whole and would “spawn legal uncertainty” and that therefore such an interpretation should be
rejected. However, the court in MP3Tunes did not offer any evidence that Congress intended
section 512(c) to apply to pre-1972 sound recordings.
The court in MP3tunes not only ignored the plain text of the statute, it also ignored the
general rule of statutory construction that exemptions from liability, such as those established in
section 512(c), must be construed narrowly, “and any doubts must be resolved against the one
asserting the exemption.”
486
Furthermore, the court’s interpretation of section 512(c) runs afoul
of the “cardinal rule” of statutory construction that one section of a statute cannot be interpreted
in a manner that implicitly repeals another section.
487
In light of these rules of statutory
construction, any exemption of liability for violations of rights under the common law or statute
of any State for pre-1972 sound recordings must be explicit in its intent to override the provisions
of section 301(c).
The Office observes that numerous other limitations and exceptions in Title 17, including
those in sections 107 and 108, are also express limitations on the right to recover for
“infringement of copyright.”
488
Yet none of these exceptions in the federal copyright statute has
ever been applied directly to any claims under state law. In short, it is for Congress, not the
courts, to extend the Copyright Act to pre-1972 sound recordings, both with respect to the rights
granted under the Act and the limitations on those rights (such as section 512) set forth in the Act.
486
Tasini v. New York Times Co., 206 F.3d 161, 168 (2d Cir. 2000), aff’d, 533 U.S. 483 (2001).
487
Tennessee Valley Auth. v. Hill, 437 U.S. 153, 189 (1978); Auburn Hous. Auth. v. Martinez, 277 F.3d
138, 145 (2d Cir. 2002).
488
See also 17 U.S.C. §§ 110, 111(a), 112, 121(a), (c).
United States Copyright Office PRE-1972 SOUND RECORDINGS
133
3. Application of the Communications Decency Act
The discussion concerning section 512 is related to another issue that was not raised in
the Notice of Inquiry and comments or at the roundtable: whether the safe harbor of section
230(c) of the CDA applies to state law protection for pre-1972 sound recordings. Section 230(c)
provides certain immunity from liability for providers and users of “interactive computer
services” who publish information provided by others. Specifically, it states that “No provider or
user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.”
489
Concerning its effect on other
laws, section 230(e) provides that no liability may be imposed under any state or local law that is
inconsistent with section 230. In effect, section 230(e) provides blanket immunity from liability
for providers and users of an “interactive computer service” who publish information provided by
others. However, section 230(e)(2) of the CDA also provides that the law does not “limit or
expand any law pertaining to intellectual property.”
490
It is not settled whether the CDA limitations on liability apply to claims under state law
that may arise from violation of the rights of owners of pre-1972 sound recordings, or whether
such claims arise from a “law pertaining to intellectual property” and are thus outside the CDA
liability limitations. The U.S. Court of Appeals for the Ninth Circuit, in Perfect10, Inc. v CCBill,
LLC, held that the carve-out from the immunity provided in the CDA for laws pertaining to
intellectual property applies only to federal intellectual property, and that therefore the CDA
provides immunity for claims under state laws protecting intellectual property. The court stated
that while the scope of federal intellectual property law is relatively well-established, state laws
protecting “intellectual property” (including trademark, unfair competition, dilution, right of
publicity and trade defamation) are by no means uniform. The court concluded that any
489
47 U.S.C. § 230(c).
490
47 U.S.C. § 230(e)(2).
United States Copyright Office PRE-1972 SOUND RECORDINGS
134
interpretation of the CDA that failed to immunize Internet service providers from claims arising
under these diverse state laws would undermine Congress’s goal of fostering the development of
the Internet.
491
Several other courts have declined to follow the reasoning of the Ninth Circuit in
Perfect10 v CCBill, concluding instead that the CDA provides no immunity from claims under
state laws protecting intellectual property.
492
In Doe v. Friendfinder Network, Inc., the District
Court for the District of New Hampshire noted that prior to the Perfect 10 decision, the general
consensus was that the CDA did not shield service providers from state intellectual property
law.
493
Both the Friendfinder Network decision and Atlantic Recording Corp. v. Project Playlist,
Inc. criticized the Ninth Circuit’s failure to analyze the text of the statute.
494
The Project Playlist
decision noted that the approach taken in Perfect 10 v. CCBill LLC appeared to be inconsistent
with Ninth Circuit precedent governing statutory interpretation.
495
The courts in both Project
Playlist and Friendfinder Network found that the language of the statute itself does not suggest
that the carve-out from immunity in the CDA applies solely to federal intellectual property law,
noting that Congress’s use of the modifier “any” in setting forth which laws pertaining to
intellectual property were to be carved out from the CDA immunity provisions does not suggest a
limitation to federal intellectual property law. On the contrary, the modifier “any” constitutes
expansive language and there is no indication that Congress intended a limiting construction.
496
491
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007).
492
See, e.g., Universal Commun. Sys. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007); Atlantic Recording
Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009); Doe v. Friendfinder Network, Inc.,
540 F. Supp. 2d 288 (D.N.H. 2008).
493
See Friendfinder Network, Inc., 540 F. Supp. 2d at 301-02 .
494
See id.; Project Playlist, Inc., 603 F. Supp. 2d at 703.
495
See Project Playlist, Inc., 603 F. Supp. 2d at 703.
496
See id.; Friendfinder Network, Inc., 540 F. Supp. 2d at 301-02.
United States Copyright Office PRE-1972 SOUND RECORDINGS
135
No stakeholders specifically addressed the possible application of the CDA to the state
law protection of pre-1972 sound recordings. However, there is little question that if pre-1972
sound recordings were brought under federal law, they would be excluded from the CDA. And as
a matter of policy, that is the correct result. Congress properly determined that Internet service
providers should not receive the CDA’s more comprehensive immunity with respect to
infringement of copyrighted works, but should be subject to the more limited safe harbor of
section 501. Pre-1972 sound recordings should be treated no differently in this respect than post-
1972 sound recordings, or any other works of authorship.
E. Alternatives to Federal Protection
The Copyright Office appreciates stakeholders’ efforts to devise ways to encourage
preservation and public access to pre-1972 sound recordings without amending the Copyright
Act. Those suggestions include “partial federalization” – i.e., applying only selected portions of
federal copyright law to pre-1972 sound recordings, limiting remedies for infringement of orphan
works, reforming the existing state laws governing pre-1972 sound recordings, confirming that
the fair use defense is applicable to claims of violation of state laws protecting sound recordings –
and negotiated agreements between record companies and libraries. However, each of the
suggested alternatives falls short of federalization in terms of promoting legal uniformity,
preservation, and public access.
The Office agrees with those stakeholders who opposed the concept of “partial
federalization,” or only applying sections 107 and 108 to pre-1972 sound recordings. Such an
approach would only increase confusion regarding what parts of pre-1972 sound recording
protection are governed by state law and what parts fall under federal law. This result would not
promote clarity and consistency. Moreover, the Office sees no benefit in retaining state law rules
for all aspects of protection for pre-1972 sound recordings other than certain selected exceptions
United States Copyright Office PRE-1972 SOUND RECORDINGS
136
and limitations. Pre-1972 sound recordings should either be part of the federal statutory scheme
or they should not be part of that scheme.
Regarding the proposal of limiting remedies for good-faith preservation and public access
uses of pre-1972 sound recordings that are also orphan works,
497
the Office agrees that an orphan
works provision would be a valuable addition to federalization, but it is not a substitute. An
approach consisting only of limiting remedies for this group of works would leave too many non-
orphan works unaddressed, and would, like partial federalization, increase confusion as to where
to draw the line between federal and state protection.
Reforming state laws rather than amending federal copyright law is simply impractical,
given the effort and uncertainty involved in trying to obtain consistent statutory reforms in all
fifty states. Such an endeavor would be time-consuming and expensive, and achieving
uniformity is highly unlikely. Moreover, even if uniformity in state statutory law were achieved,
there would be no way to ensure uniformity in the decisions of the courts of all fifty states.
498
Additionally, only one state would have to reject a proposed model law for the purpose of the
project to falter. Finally, given the Office’s strong belief that the correct policy choice is to unify
all copyright law under federal control, a state-by-state approach would be a major step in the
wrong direction.
ALA and ARL have requested that the Office “confir[m] the availability of a flexible fair
use doctrine under state law in all 50 states.”
499
Given that we are aware of only a single state
court case – from a trial court – that has actually applied fair use to a common law copyright
497
See supra Chapter IV.E.2.
498
While it is true that various federal district courts and courts of appeals may interpret federal laws
differently, the Supreme Court ultimately can resolve those differences. But the Supreme Court has no
power to resolve issues of state law, even in cases where the laws of all states are identical.
499
ARL/ALA Reply at 1.
United States Copyright Office PRE-1972 SOUND RECORDINGS
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claim,
500
that is a rather ambitious request. Of course, the Copyright Office has no authority to
confirm the substance of state law. Nonetheless, the Office believes that, under proper facts, it is
likely that any state court would find that fair use is a defense that can be considered and applied
under principles of state common law copyright. Note, however, that traditionally fair use was
not available for unpublished works
501
– and for the most part state common law copyright has
protected only unpublished works. But at least with respect to commercially distributed sound
recordings, arguments based on the unpublished nature of a work are not very persuasive.
Moreover, because fair use is a judge-made doctrine (merely codified after the fact in the
Copyright Act of 1976), there is no reason to believe that state courts considering common law
copyright claims would not find that the defense does exist under appropriate circumstances.
As noted above,
502
common law copyright is not the primary means by which pre-1972
sound recordings are protected under state law. The states more frequently protect those
recordings under theories of unfair competition, which typically do not include a fair use defense,
and through statutes that include no such defense.
503
However, some courts have constructed
analogous defenses to torts separate from but similar to copyright.
504
It seems likely that in any
case in which an action by a library or archives would be considered a fair use under federal
copyright law, it would also likely be considered permissible under state law.
Finally, the Office applauds the recent agreements between record companies and the
Library of Congress. Such agreements, however, should take place against the backdrop of
500
EMI Records, supra note 140.
501
See Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539 (1985); EMI Records, supra
note 140.
502
Chapter II.E.3.
503
However, as discussed above, many activities that would qualify as fair use under federal law may not
even be embraced in the tort. See id.
504
See, e.g., Comedy III Prods. v. Gary Saderup, Inc., 25 Cal.4th 387, 408, 21 P.3d 797, 106 Cal.Rptr.2d
126 (2001) (recognizing a modified fair use defense to a claim of violation of the right of publicity).
United States Copyright Office PRE-1972 SOUND RECORDINGS
138
federal protection of all sound recordings, so that federal copyright exceptions can facilitate
reasonable uses of recordings that are not covered by a use agreement.
United States Copyright Office PRE-1972 SOUND RECORDINGS
139
Wire recorder
VI. MEANS OF BRINGING PRE-1972 SOUND RECORDINGS UNDER FEDERAL
JURISDICTION
It is not enough to conclude that pre-1972 sound recordings should be protected under
federal copyright law. A number of decisions must be made with respect to how they are brought
into the federal system, including issues involving ownership, term of protection, and registration.
Indeed, an understanding of how these issues are to be addressed is crucial not only to
determining whether it is feasible to federalize protection, but also to determining how to do so.
A. Ownership
The Notice of Inquiry identified ownership of rights in pre-1972 sound recordings as a
key issue. The Office sought information about how the various state law principles regarding
United States Copyright Office PRE-1972 SOUND RECORDINGS
140
ownership of sound recordings compare with principles of copyright ownership under federal
law. In particular, it requested information on the relevant state law principles of authorship and
initial ownership, and how they compare with those of federal copyright law. This inquiry
included issues surrounding application of work made for hire principles under state law. It also
sought information on the relevant state law principles concerning transfers and how they
compare with those under federal law. As discussed above, the Office also expressed a desire for
input on how ownership issues might affect termination and reversion rights that are available to
works under federal law.
505
1. Determining Ownership
Under federal law, the owner of rights in a sound recording will generally be, in the first
instance, the performer(s) whose performance is recorded, the producer of the recording, or both.
In addition, many sound recordings qualify as works made for hire under the Copyright Act of
1976, either because they are works prepared by employees in the scope of their employment, or
because they were specially ordered or commissioned, the parties agreed in writing that the works
would be works made for hire, and the works fall within one of nine specific categories of works
eligible to be commissioned works made for hire.
506
If a work qualifies as a work made for hire,
it is the employer or commissioning party who is the legal author and initial right holder, rather
than the individual creator of the work.
507
Under the 1909 Act, the courts recognized the work for
hire doctrine with respect to works created by employees in the course of their employment, and
particularly from the mid-1960s on, they recognized commissioned works made for hire, under
such standards as whether the work was created at the hiring party’s “instance and expense” or
505
See supra Chapter IV.D.2.b.
506
17 U.S.C. § 101.
507
The parties may agree otherwise in a signed writing. 17 U.S.C. § 201(b).
United States Copyright Office PRE-1972 SOUND RECORDINGS
141
whether the hiring party had the “right to control” or exercised “actual control” over the creation
of the work.
508
The Office sought information about the extent to which laws of the various states
recognize the work made for hire doctrine with respect to sound recordings and, if so, the extent
to which state laws differ from federal law.
Under federal copyright law, ownership of rights is distinct from ownership of the
material object in which the copyrighted work is embodied. Transferring ownership of such an
object – including the “original,” i.e., the copy or phonorecord in which the copyrighted work
was first fixed – does not convey rights in the copyright.
509
A transfer of copyright ownership
must be made in a writing signed by the owner of the rights or by his or her authorized agent.
510
In contrast, some state laws provide (or for a period of time provided) that transferring the
original copy of a work could operate as a transfer of copyright ownership, unless the right holder
specifically reserved the copyright rights. This principle is sometimes referred to as the
“Pushman doctrine” for one of the earliest cases in which it was applied.
511
The Office sought
information about the extent to which such state law principles have been applied with respect to
“master recordings” and how, if at all, they would affect who would own the federal statutory
rights if pre-1972 sound recordings were brought under federal law.
a. State vs. federal ownership rules
In their comments and at the roundtable, RIAA and A2IM cautioned that perhaps the
most troublesome issue for federal copyright protection for pre-1972 sound recordings would be
how to effectuate a transition of the rules regarding the vesting of ownership from existing state
508
See NIMMER ON COPYRIGHT § 5.03 (2011).
509
17 U.S.C. § 202.
510
17 U.S.C. § 204(a).
511
Pushman v. New York Graphic Soc’y, Inc., 287 N.Y. 302, 39 N.E.2d 249 (1942).
United States Copyright Office PRE-1972 SOUND RECORDINGS
142
laws to federal law. They acknowledged that there is precedent for bringing works that are
already in existence under federal copyright law at a later time. For example, the URAA restored
copyright protection to certain works previously in the public domain (including foreign sound
recordings). However, they noted that the URAA provisions restored ownership under federal
law and vested it “initially in the author or initial rightholder of the work as determined by the
law of the source country of the work.”
512
They pointed out that the question of “changing”
ownership of rights from one party to another was not at issue under the URAA, but that it might
become contentious in the case of federalized protection for pre-1972 sound recordings.
513
RIAA and A2IM noted that if current federal law were applicable to pre-1972 sound
recordings, vesting of initial ownership would have to be determined on a case-by-case basis.
They predicted that such inquiries would require looking at the circumstances under which each
recording originated to determine the owner (including, for example, to determine whether the
work might be a work made for hire, or one jointly owned by the performers, producers and
others). RIAA and A2IM noted that transfers, assignments, other contracts and corporate mergers
would raise additional ownership questions. They remarked that the existing rights, remedies,
licenses, representations and warranties and other provisions in contracts and licenses could be
called into question. They suggested that such costly inquiries would be “ripe [sic] with errors,
challenges and litigation,” which would likely result in a complete freeze on the availability of
many pre-1972 sound recordings.
514
RIAA and A2IM conceded that there is some, albeit very limited, precedent for dealing
with existing contractual obligations that are changed by later provisions in title 17. They
suggested that section 104A(f) could provide guidance on how to address contractual liability
512
RIAA/A2IM at 24 (citing 17 U.S.C. § 104A).
513
RIAA/A2IM at 24-27; RIAA/A2IM Reply at 3-4.
514
RIAA/A2IM at 27.
United States Copyright Office PRE-1972 SOUND RECORDINGS
143
arising from new federal copyright protections for pre-1972 U.S. sound recordings. That section
provides immunity to any person who had, prior to the effective date of restoration of copyright
under the URAA, warranted, promised or guaranteed that a work did not violate an exclusive
right granted in 17 U.S.C. § 106, under the assumption that the work was in the public domain.
515
They suggested that similar provisions could be adopted, but thought that this would be a minor
fix for a major problem – the uncertainties brought on for the many existing contractual relations,
chains of title, rights and remedies for existing uses, licenses and the like.
516
RIAA and A2IM pointed out that the system of state statutes and common law governing
pre-1972 sound recordings vests a variety of rights, sometimes to different right holders than
those who would be copyright owners under current federal law.
517
They acknowledged that the
current system may be complex, but also noted that there have been decades of litigation and
precedent to resolve ownership issues under the various state laws. They remarked that the
existing system is understood and has been relied upon by the music industry and related
industries for a century. RIAA and A2IM suggested that if this existing system were suddenly
replaced by a new federal regime, the transition to new laws from these state law schemes for
each sound recording would be an administrative nightmare.
518
A2IM noted that this would
include the cost of updating ownership metadata, which is routinely relied upon in today’s
marketplace.
519
At the roundtable, NMPA said that several of the concerns raised by RIAA and A2IM are
shared by music publishers. It asserted that any changes in ownership of sound recordings could
require publishers to change information in their databases “relating to old recordings right across
515
See id. at 32 (citing 17 U.S.C. § 104A(f)).
516
See id. at 31-32.
517
See id. at 26 (citing BESEK, COMMERCIAL SOUND RECORDINGS STUDY); Schwartz T1 at 25.
518
RIAA/A2IM at 24-27.
519
Bengloff T1 at 291.
United States Copyright Office PRE-1972 SOUND RECORDINGS
144
the board,” requiring publishers to devote resources to address the costs of updating their records.
NMPA added that uncertainty regarding ownership would be problematic for music publishers’
ability to promptly receive revenue for the use of their musical works by owners of sound
recordings.
520
ARSC disputed the detrimental effects claimed by RIAA and A2IM. It asserted that state
law would continue to govern prior contracts and that ownership would therefore remain the same
under federal protection for pre-1972 recordings. It also asserted that the standard term for
recording agreements, including standard agreements used by owners of sound recordings to
grant master use licenses, is limited in duration, and the term of federal copyright duration would
generally extend well beyond the term of current contracts.
521
ARSC pointed out that RIAA and A2IM failed to offer examples of contracts regarding
pre-1972 sound recordings that would be undermined by federal protection. It added that even if
such a case did arise, RIAA and A2IM correctly observed that the URAA safeguards in section
104A could provide a model for addressing such issues. ARSC also countered RIAA and A2IM
statements that issues of initial ownership would be complicated by federalization. ARSC noted
that ownership is not a particularly difficult question for commercial pre-1972 sound recordings,
because virtually all such recordings were produced as works made for hire, and are now claimed
by corporations rather than by individuals, a point which was also made independently by Patrick
Feaster.
522
ARSC suggested that any new federal legislation for pre-1972 recordings should
520
Rosenthal T1 at 60-61, 86-87.
521
ARSC at 4; ARSC Reply at 21 (citing legal practice guides, e.g., Recording Agreements, in 8
E
NTERTAINMENT INDUSTRY CONTRACTS (Donald C. Farber & Peter A. Cross eds., 2008) (advising that the
term of engagement “can range from a few hours to several years”) and Bonnie Greenberg, Master Use
Licenses, in 9 E
NTERTAINMENT INDUSTRY CONTRACTS (Donald C. Farber & Peter A. Cross eds., 2008)
(estimating a term of five years for the use of a sound recording on network television versus three years
for exploitation on cable television).
522
ARSC at 4; Feaster at 8-13.
United States Copyright Office PRE-1972 SOUND RECORDINGS
145
clearly indicate the source law governing the question of whether a work qualifies as a work
made for hire.
523
In response to the statement by RIAA and A2IM that evaluating ownership under
federalization would require costly case-by-case analysis, which would diminish the availability
of many pre-1972 recordings, ARSC pointed out that ownership of already-existing works other
than sound recordings under the 1976 Act is determined as of the effective date of the Copyright
Act (i.e., ownership is based on the status quo that existed just prior to the effective date), and not
by retrospective application of the Copyright Act to the date the works were created.
524
ARSC
suggested that similar treatment could easily be implemented for any federalization of pre-1972
recordings. ARSC noted that although neither federal nor state rights in sound recordings were
created under the 1909 Copyright Act, by analogy, prior state law could apply for pre-1972
recordings. Furthermore, it offered that even traditional categories of works prepared before
1978 require a case-by-case examination to determine the federal rights as of the date of
preemption, and that no diminished availability of such works has been attributed to such
analysis.
525
The Starr-Gennett Foundation addressed the difficulty of case-by-case analysis of
ownership by pointing out the challenges in determining both the facts surrounding creation of
works as well as in the application of various state laws regarding transfers and corporate
mergers. It suggested that federalization could ease the impact of current questions regarding
ownership status of pre-1972 recordings, implying that federalization would mean that ownership
would be determined under federal law.
526
523
ARSC Reply at 13-15.
524
Id. at 13-14.
525
Id.
526
Starr-Gennett Foundation 7b at 3.
United States Copyright Office PRE-1972 SOUND RECORDINGS
146
b. Effect of rule in some states equating physical ownership of master
with ownership of all rights
ARSC stated that it is unaware of state cases that have invoked the Pushman doctrine,
equating ownership of the original master recording with ownership of the sound recording.
However, ARSC went on to note that a correspondent to the ARSC Journal raised this question in
2006, citing specific statutes of Connecticut, Georgia, Hawaii, Illinois, Alabama, Alaska, Arizona
and California that indicate those states recognize some version of this principle. ARSC also
acknowledged that it is theoretically possible that courts could apply the principle.
527
Patrick Feaster provided an explanation of the historical methods of creation and
duplication of pre-1972 sound recordings. This history provided information about the reasons
why many state statutes concerning pre-1972 sound recordings equate ownership of the original
master recording with ownership of the sound recording. Feaster noted that some sound
recordings never had masters because they were never intended for mass duplication. He also
pointed out that many masters were destroyed, yet duplicates survive. He suggested that
federalization should include a requirement that owners be required to demonstrate ownership of
a physical master as a condition to bringing a copyright claim.
528
RIAA and A2IM stated that the Pushman doctrine applied to master recordings, at least
in some states, and noted that federalization would pose difficulty and increased costs for
investigations of chain of title.
529
c. Termination
Regarding the possibility of termination rights under a federal regime for protection of
pre-1972 sound recordings, RIAA and A2IM stated that any uncertainty as to the initial and
527
ARSC at 4 (citing ARSC JOURNAL, Fall 2006 at 211-12).
528
Feaster at 8-13.
529
RIAA/A2IM at 27-28.
United States Copyright Office PRE-1972 SOUND RECORDINGS
147
subsequent ownership (and authorship) of a sound recording would be exacerbated by the
difficulty in addressing issues such as who, if anyone, had or has the ability to terminate any
grant, how to treat joint author scenarios, and when and under what circumstances, if at all, works
would be eligible for termination.
530
Ivan Hoffman stated that any federalization of pre-1972 sound recordings should
continue to exempt those recordings from the termination of transfer provisions. He noted that as
of now, pre-1972 sound recordings are not subject to termination of transfer provisions and
recommended against expanding such provisions to the detriment of current owners.
531
Artist’s Reprieve commented that termination of transfer provisions should extend to
federalized pre-1972 sound recordings. It suggested that failure to provide such provisions may
result in age discrimination against older artists as a direct result of a federal statute that grants
federal copyrights (and permits copyright terminations) to younger artists who recorded post-
1978.
532
The Office also heard informally from other representatives of recording artists from the
pre-1972 era who pointed out the inequity of depriving them of termination rights enjoyed by
those who performed on post-1972 sound recordings.
2. Recommendation
The concerns raised by RIAA, A2IM and NMPA deserve serious consideration.
However, these concerns are based on the assumption that federalization would occur by
incorporating pre-1972 sound recordings into the existing framework of the Copyright Act,
without any modifications or accommodations. It appears that the copyright owners’ concerns
regarding ownership can be addressed by adopting a rule along the lines of ARSC’s proposal,
providing that ownership of newly federalized pre-1972 sound recordings should be determined
530
See id. at 29.
531
Hoffman T1 at 228-33.
532
Artist’s Reprieve Reply at 1-2.
United States Copyright Office PRE-1972 SOUND RECORDINGS
148
not by applying existing federal law retrospectively, but by applying state law as it exists as of the
effective date of federalization. That is, whoever owned the rights immediately before pre-1972
sound recordings are given federal protection would own those rights when federal protection
takes effect.
Determining ownership of pre-1972 sound recordings by deferring to the ownership as of
the effective date of federalization would avoid creating new questions regarding ownership but
instead would preserve the status quo, including any disputes regarding ownership that may or
may not exist at the time of enactment. Following this path would prevent the imposition of
undue administrative costs or the predicted freeze on the availability of many pre-1972 sound
recordings. Determinations of initial ownership would be controlled by existing state laws,
including the application of work for hire principles and the Pushman doctrine where it applies, as
the rules in existence at the time of transfers and assignments that took place prior to
federalization.
Termination rights pose a more difficult question. As both the House and Senate Reports
on the Copyright Act of 1976 stated, termination provisions were included in the 1976 Act
“because of the unequal bargaining position of authors, resulting in part from the impossibility of
determining a work’s value until it has been exploited.”
533
The Office has long recognized that
“[s]ince authors are often in a relatively poor bargaining position * * * some other provision
should be made to permit them to renegotiate their transfers that do not give them a reasonable
share of the economic return from their works.”
534
As a general matter, the Office strongly
supports termination rights as a means to give authors the opportunity to recapture the value of
their authorship years after they have assigned the rights.
533
H.R. REP. NO. 94–1476, at 124 (1976); S. REP. NO. 94-473, at 108 (1975).
534
See Report of the Register of Copyrights on the General Revision of U.S. Copyright Law 92 (1961).
United States Copyright Office PRE-1972 SOUND RECORDINGS
149
However, to recognize termination rights for grants of copyright transfers or licenses that
were made prior to the enactment of a statute granting federal copyrights would be unprecedented
and would raise significant concerns relating to retroactive legislation and possible takings.
535
Because of those concerns, the Office is reluctant to recommend that termination rights should
apply to any grants that have already been made with respect to pre-1972 sound recordings.
536
However, the termination right in section 203 should be applicable with respect to any grants
made by authors after the effective date of any legislation that federalizes protection of pre-1972
sound recordings. In such cases, there could be no concerns about retroactivity or takings, since
any post-effective date grants would be subject to the law in existence at that time. Addressing
termination in this fashion would preserve the expectations of all parties with respect to pre-
federalization grants.
B. Term of Protection
The Notice of Inquiry identified the term of protection for pre-1972 sound recordings and
related constitutional considerations as key issues. The Office sought information about how
federal law regarding term of protection should apply to pre-1972 sound recordings. If the
ordinary federal statutory terms were applied to pre-1972 sound recordings, then all works
published prior to 1923 would immediately go into the public domain and many and perhaps
most other works would go into the public domain prior to 2067, the date upon which current
state protection is set to be preempted. Unlike under current law, works created between 1923
and 1972 and now protected under state law would not necessarily enjoy protection until 2067.
Therefore, the Notice inquired whether it would be desirable to provide a term of protection for
535
See U.S. Copyright Office, Analysis of Gap Grants under the Termination Provisions of Title 17 at 6
(2011), available at http://www.copyright.gov/reports/gap-grant%20analysis.pdf
.
536
There would presumably be no occasion to recognize termination rights for pre-1978 grants under
section 304(c) or (d), since the premise for those provisions is that the authors, rather than the grantees,
should obtain the benefit of the extensions of copyright term enacted in 1976 and 1998. No similar
extension of term is proposed for pre-1972 sound recordings.
United States Copyright Office PRE-1972 SOUND RECORDINGS
150
pre-1972 sound recordings that is different than the terms set forth for other works protected by
federal copyright law, in order to ensure that federalization of pre-1972 sound recordings would
not give rise to potentially successful takings claims under the Fifth Amendment. The Notice
further inquired whether federalization would encounter constitutional problems such as due
process or takings issues if all pre-1972 recordings were not provided with at least some
minimum term of federal protection.
1. Current and Proposed Terms of Protection
Currently, pre-1972 sound recordings may be protected by state law until February 15,
2067, at which point such protection is preempted by federal law. The duration of protection
would potentially change if sound recordings were brought under federal copyright law and given
the term applicable for other works. Specifically, the term of protection for a published pre-1972
sound recording presumably would be 95 years from publication.
537
An unpublished pre-1972
sound recording would have a term of the life of the author plus 70 years unless it is a work made
for hire or is anonymous or pseudonymous, in which case the term would be 120 years from
creation.
538
When unpublished works other than sound recordings were incorporated into the federal
copyright statute in 1978, older works were given an adjustment in the term of protection to take
into account the fact that the potentially perpetual protection of such works under state law was
being abrogated. Section 303 provided, as a transitional matter, that all unpublished works would
get at least 25 years of federal protection, until December 31, 2002. Thus, a work created by an
author who had died in 1929, 49 years before the effective date of the 1976 Act, might have been
expected to enter the public domain at the end of 1979, 50 years after the death of the author. But
537
See 17 U.S.C. § 304.
538
17 U.S.C. § 303(a).
United States Copyright Office PRE-1972 SOUND RECORDINGS
151
section 303 provided that copyright would subsist in the work until at least December 31, 2002,
and that it would subsist for an additional 25 years – to the end of 2027 – if it was published
before the end of 2002.
539
If a similar accommodation were to accompany federalization of pre-
1972 sound recordings, sound recordings published in 1922 or earlier would not go directly into
the public domain, but would continue to enjoy copyright protection for a prescribed period of
years.
Most stakeholders proposed some modification of the current terms of protection to pre-
1972 sound recordings.
a. 50 years from publication
Several stakeholders, including Nicola Battista, Feaster, and LOC, suggested a term of 50
years from the date of publication.
540
Under such a proposal, pre-1923 sound recordings would
go directly into the public domain. In support of such a term, LOC noted that virtually all the
commercial benefits accruing to right holders from historic sound recordings released in past
decades occur within a period of fewer than 70 years.
541
LOC suggested that a term of protection
under federal law longer than 50 years has not proved to be an incentive to right holders to keep
historic recordings commercially available in the market place. LOC and Battista offered that the
current protection for sound recordings until the year 2067 creates a “dead zone” during which
culturally and historically important recordings are not commercially available, and are often lost,
perhaps forever.
542
Finally, LOC and Battista noted that for some interested in listening to and
researching older recordings, the lack of commercial availability of phonorecords authorized by
539
With the enactment of the Sonny Bono Copyright Term Extension Act in 1998, the additional 25 year
period was extended by yet another 20 years, until the end of 2047.
540
Battista at 2; Feaster at 1, 7; LOC at 10.
541
LOC at 10.
542
LOC at 10; Battista at 2.
United States Copyright Office PRE-1972 SOUND RECORDINGS
152
the right holder creates an incentive to seek out copies produced in other countries with shorter
terms of copyright protection, where they are already in the public domain.
543
b. 50 years from fixation
EFF expressed a preference for a term of 50 years from the date of fixation. Under such
a proposal, pre-1923 sound recordings would go directly into the public domain. EFF believed
that the general rule of protection, where pre-1972 sound recordings do not enter the public
domain until 2067, is too long and should be shortened under federal copyright law. EFF stated
its view that 50 years is a reasonable length that is appropriate under the Copyright Clause's
“limited times” provision.
544
It also suggested that making the terms of protection of sound
recordings closer to the terms of protection of the underlying works, such as musical
compositions, would clarify their status and better facilitate archiving and other productive
uses.
545
SAA also preferred a term of 50 years from the date of fixation, with pre-1923 sound
recordings going directly into the public domain. SAA noted that because of the difficulty of
establishing whether particular sound recordings were works made for hire, adopting the basic
rules regarding term would not be a good solution. SAA pointed out that a term of 50 years from
creation would be in compliance with most international agreements.
546
543
See id.
544
U.S. CONST. Art. I, § 8. cl. 8.
545
EFF at 11-12.
546
SAA at 8.
United States Copyright Office PRE-1972 SOUND RECORDINGS
153
c. 95 years from creation
MLA suggested that 95 years from creation, regardless of whether the work is published
or unpublished, would be a second best alternative to a 50 year term. It expressed the view that
all pre-1923 works should fall into the public domain in order to mirror the protection afforded
other classes of works.
547
In making this recommendation, MLA noted that when Congress
indicated that pre-1972 sound recordings would enter the public domain in 2067, it clearly chose
2067 (originally 2047, but extended to 2067 in the Copyright Term Extension Act) to ensure a
minimum 95 year term for all such recordings. According to the House Report on the 1976
Copyright Act, enacting a provision that takes away subsisting common law rights and substitutes
statutory rights would be “fully in harmony with the constitutional requirements of due process”
provided that the statutory rights endure for a reasonable period.
548
MLA reasoned that because
Congress has already established a term of at least 95 years of potential protection under state law
for pre-1972 sound recordings, Congress must have determined that a 95-year term would comply
with the requirements of due process.
549
d. Expiration in 2067
While RIAA and A2IM generally opposed federalization, they expressed the position that
the only way to create clarity with regard to term of protection is to base the term on the year of
first fixation of any sound recording (because determining the date of “first publication” for very
old recordings would be a nearly impossible factual task in many instances), or to fix an end of
term (2067) that matches existing law. Under their proposal, all pre-1923 works would continue
to enjoy protection until 2067. RIAA and A2IM concluded that legislation that cuts off
547
MLA at 12.
548
H.R. REP. NO. 94-1476, at 139 (1976).
549
MLA at 13.
United States Copyright Office PRE-1972 SOUND RECORDINGS
154
protections for existing state- and common law-protected recordings would deny right holders of
“all economically viable use of those works,” and takings claims would arise.
550
e. Other alternatives
In their reply comment, Professor Elizabeth Townsend Gard and her 2011 copyright class
at Tulane University School of Law suggested that sound recordings created before February 15,
1972 should enjoy a term that endures for 50 years from fixation. However, under their proposal,
in no case would the term of copyright in such a work expire before five years from enactment of
federalization, and if the work is made available to the public by the copyright holder within five
years of enactment, the term of copyright would not expire before February 15, 2067.
551
Professor Townsend Gard and her class pointed toward several benefits of such a term
structure. They posited that a significant number of works that have no commercial value or
known owner interested in commercialization would enter the public domain and would thus be
available for unfettered preservation and access. They pointed out that the structure would allow
right holders who saw value in their recordings to secure a term that lasted until 2067 by making
the work available to the public during a reasonable transition period. Such owners would not be
deprived of any property and no takings concerns would arise. Finally, they noted that the
structure, based on date of creation, would reasonably allow the public to determine whether a
work was under copyright protection.
552
This proposal was the subject of much discussion during the June 3, 2011 roundtable.
RIAA raised concerns that a requirement that the work must be made available to the public in
order to secure protection until 2067 would lead to costly litigation as to whether that requirement
550
RIAA/A2IM at 29,.33-34.
551
Townsend Gard Reply at 22.
552
Id.
United States Copyright Office PRE-1972 SOUND RECORDINGS
155
had indeed been met.
553
Professor Townsend Gard responded to the litigation concern by noting
that there was no significant litigation regarding compliance with section 303(a) after enactment
of the 1976 Act.
554
Professor Townsend Gard suggested that the reasonable transition period in and of itself
may suffice to address takings concerns, a suggestion that was strongly disputed by RIAA.
555
The length of the transition period was also a disputed matter. ARSC stated that as its goal is
access and preservation, it would not necessarily object to a reasonable transition period within
which an owner may make the work available to the public in order to secure a longer term. At
the same time it flatly rejected the notion that a transition period of 25 years was reasonable.
556
2. Fifth Amendment Takings Claims
Before recommending the term of protection to be provided for pre-1972 sound
recordings under federal law, it is necessary to review an additional issue: whether shortening the
term of protection currently provided under state law would constitute a “taking” for which
compensation must be paid.
557
Federalization of pre-1972 sound recordings would entail
preempting state law protection, which would deprive owners of vested interests currently held
under state law and therefore could raise Fifth Amendment takings claims. So long as the state
law-based property right is replaced by a federal right of equal strength and duration, no issues
should arise, but what would be the result if the federal term of protection were shorter than that
which is currently enjoyed under state law?
553
Pariser T2 at 425-26.
554
Townsend Gard T2 at 429.
555
Pariser T2 at 439-41.
556
Brooks T2 at 450-51.
557
The Fifth Amendment provides that “No person shall be … deprived of life, liberty or property without
due process of law; nor shall private property be taken for public use without just compensation.” U.S.
CONST. amend. V. See generally 1 NIMMER ON COPYRIGHT §1.11.
United States Copyright Office PRE-1972 SOUND RECORDINGS
156
A takings claim may be facial or it may be “as applied.” In either type of claim, the
property must be taken for the “public use.” The Supreme Court has embraced a broad
interpretation of “public use” as “public purpose.”
558
Furthermore, the Court reiterated that its
public use jurisprudence has eschewed rigid formulas and intrusive scrutiny in favor of affording
legislatures broad latitude in determining what public needs justify the use of the takings
power.
559
While there is no reported case law directly addressing whether the sort of alleged
taking that may occur under federalization of pre-1972 sound recordings would be for the public
use, this Report concludes that federalization would advance preservation of and access to
copyrighted works. Such preservation and access appear to be a rational exercise of the
Copyright Clause authority to promote the progress of science and useful arts, and a legitimate
public purpose.
560
a. Facial takings
A facial challenge requires a court to conclude that the mere enactment of legislation
constitutes a taking. The test to be applied in a facial challenge is “fairly straightforward. A
statute regulating the uses that can be made of property effects a taking if it ‘denies an owner
economically viable use of his [property].’”
561
It is rare for facial takings claims to succeed
because it is usually impossible to ascertain the economic impact of legislation until specific
applications can be considered.
562
Not surprisingly, no stakeholders commented on whether
federalization would give rise to facial takings claims.
558
See Kelo v. City of New London, 545 U.S. 469, 480 (2005).
559
See id. at 483.
560
See Eldred v. Ashcroft, 537 U.S. 186, 204 (2003) (Supreme Court’s substantial deference to Congress’s
rational exercise of its Copyright Clause authority).
561
Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295-96 (1981).
562
See General Agreement On Tariffs And Trade (GATT): Intellectual Property Provisions, Joint Hearing
Before the Subcomm. on Intellectual Property and Judicial Administration of the H. Comm. on the
United States Copyright Office PRE-1972 SOUND RECORDINGS
157
b. As-applied takings
Reviews of Fifth Amendment as-applied takings claims consider the claim of a particular
party who asserts that he or she has been deprived of property as a result of the specific
application of the statute to him or her. Such claims are generally assessed under the framework
articulated in Penn Central Transp. Co. v. City of New York.
563
The principal consideration is
“[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the
regulation has interfered with distinct investment-backed expectations.”
564
A further
consideration is the nature of the governmental action. Interference with property that can be
characterized as a physical invasion by government may be more readily found to be a taking
than interference that arises from some public program adjusting the benefits and burdens of
economic life to promote the common good.
565
Additional relevant points in analyzing a takings
claim include the fact that “a reduction in the value of property is not necessarily equated with a
taking;”
566
statutory provisions that “moderate and mitigate the economic impact” are relevant to
the analysis;
567
and regulation of property rights does not constitute a taking when an individual’s
reasonable, investment-backed expectations can continue to be realized as long as he complies
with reasonable regulations.
568
Judiciary and the Subcomm. on Patents, Copyrights and Trademarks of the S. Comm. on the Judiciary,
103rd Cong. at 150 (1994)(“GATT Hearing”) (testimony of Christopher Schroeder, Counsel to the
Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).
563
438 U.S. 104 (1978). This brief discussion of takings is derived from Eva Subotnik and June Besek,
Fifth Amendment Considerations: Extending Federal Copyright to Pre-1972 Sound Recordings
(unpublished manuscript on file with author).
564
Penn Central, 438 U.S. at 124.
565
See id.
566
Andrus v. Allard, 444 U.S. 51, 66 (1979).
567
Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225-26 (1986).
568
See U.S. v. Locke, 471 U.S. 84, 107-108 (1985) (citing Texaco, Inc. v. Short, 454 U.S. 516 (1982) (“this
United States Copyright Office PRE-1972 SOUND RECORDINGS
158
In the 1976 Copyright Act, Congress considered as-applied takings concerns similar to
those raised by federalization of pre-1972 sound recordings when it removed perpetual protection
for unpublished works and substituted limited terms of federal copyright protection. In the 1976
Act, Congress ensured that all works being brought under federal copyright would enjoy at least
25 years of protection, until the end of 2002.
569
If works were published on or before that date,
they received another 25 years of protection, until 2027, a date that was extended by 20 years in
the Sonny Bono Copyright Term Extension Act, thus affording protection until the end of
2047.
570
The House Report on the 1976 Copyright Act explained the purpose of the provision, 17
U.S.C. § 303:
Theoretically, at least, the legal impact of section 303 would be far
reaching. Under it, every “original work of authorship” fixed in tangible form
that is in existence would be given statutory copyright protection as long as the
work is not in the public domain in this country. The vast majority of these
works consist of private material that no one is interested in protecting or
infringing, but section 303 would still have practical effects for a prodigious
body of material already in existence. Looked at another way, however, section
303 would have a genuinely restrictive effect. Its basic purpose is to substitute
statutory for common law copyright for everything now protected at common
law, and to substitute reasonable time limits for the perpetual protection now
available. In general, the substituted time limits are those applicable to works
created after the effective date of the law; for example, an unpublished work
written in 1945 whose author dies in 1980 would be protected under the statute
from the effective date through 2030 (50 years after the author’s death).
A special problem under this provision is what to do with works whose
ordinary statutory terms will have expired or will be nearing expiration on the
effective date. The committee believes that a provision taking away subsisting
Court has never required [Congress] to compensate the owner for the consequences of his own neglect.”)).
569
17 U.S.C. § 303(a) provides:
Duration of copyright: Works created but not published or copyrighted before January 1, 1978
(a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or
copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no
case, however, shall the term of copyright in such work expire before December 31, 2002; and, if
the work is published on or before December 31, 2002, the term of copyright shall not expire before
December 31, 2047.
570
Pub. L. No. 105-298, 112 Stat. 2827 (1998).
United States Copyright Office PRE-1972 SOUND RECORDINGS
159
common law rights and substituting statutory rights for a reasonable period is
fully in harmony with the constitutional requirements of due process, but it is
necessary to fix a “reasonable period” for this purpose. Section 303 provides that
under no circumstances would copyright protection expire before December 31,
2002, and also attempts to encourage publication by providing 25 years more
protection (through 2027) if the work were published before the end of 2002.
571
Congress again considered as-applied takings concerns in 1994 in connection with the
provisions of URAA,
572
which restored copyright protection to certain works of foreign origin
that were in the public domain in the United States. This restoration arguably usurped the rights
of “reliance parties”
573
whose rights to use certain public domain works may have been curtailed.
In hearings addressing these provisions, Congress was advised that it could successfully address
this concern by providing reliance parties with a reasonable period of time during which they
could continue certain uses of restored works, and by limiting the liability reliance parties may
face for their use of restored works.
574
Several stakeholders addressed the notion that federalization would bring about as-
applied takings claims. RIAA and A2IM observed that if federalization placed older sound
recordings into the public domain, either immediately upon enactment or at some future date
prior to 2067, it would raise serious takings concerns. They noted that there are many examples
of back-catalog materials that have commercial viability, and asserted that reducing the term
would cut off property rights in those recordings. They acknowledged that the economic impact
of federalization is measured on an as-applied basis, and that it is therefore difficult to make
broad predictions of the value of such takings. They noted that when previous copyright
legislation, such as the URAA, raised potential takings concerns, provisions were included to
571
H.R. REP. NO. 94-1476, at 138-39 (1976).
572
Pub. L. No. 103-465, 108 Stat. 4809, 4973 (1994).
573
See 17 U.S.C. § 104A(h)(4).
574
See 17 U.S.C. § 104A(d); see also GATT Hearing, supra note 562, at 159 (1994) (testimony of
Christopher Schroeder, Counsel to the Assistant Attorney General, Office of Legal Counsel, U.S.
Department of Justice).
United States Copyright Office PRE-1972 SOUND RECORDINGS
160
diminish those concerns. In their initial comments, RIAA and A2IM stated that it is not clear
how any similar fixes for right holders could be formulated to overcome the takings problems
posed by federalization of pre-1972 sound recordings, which would touch a far wider set of right
holders than those affected by the URAA.
575
SAA commented that generally there was no need for additional protection for pre-1972
sound recordings because owners already had a significant, exclusive period of protection to
exploit the works. However, SAA acknowledged that there may be some unpublished recordings
for which extended protection may be appropriate. SAA suggested that it may be appropriate to
treat such works in a manner similar to the way unpublished items were brought under federal
copyright protection in the Copyright Act of 1976, where such works were given a minimum term
of 25 years of federal protection and an extended term of protection if they were published within
that twenty-five year period. However, SAA suggested that the window that is available to
secure extended protection should be short – no longer than 5 years – and it should not extend to
pre-1923 sound recordings.
576
ARSC remarked that it did not see any need for federal protection of pre-1923 sound
recordings because such works already had a significant period of protection under state law.
577
It went on to assert in its reply comment that federalization would not result in a total divestiture
of rights, and thus no taking would occur. It added that even if a taking were found to exist, any
compensation due would be extremely low.
578
Both ARSC and MLA concluded that pre-1923
recordings are clearly not valued by their owners, as evidenced by the almost complete
unavailability of those recordings. They went on to question whether any just compensation is
575
RIAA/A2IM at 33-34.
576
SAA at 9.
577
ARSC at 6.
578
ARSC Reply at 22-24.
United States Copyright Office PRE-1972 SOUND RECORDINGS
161
due for takings of property which has de minimis economic value.
579
MLA added to its takings
analysis in its reply comment, stating that right holders whose works may be injected into the
public domain by federalization would not lose all economically productive use of their property.
Instead, MLA maintained that such right holders would not be foreclosed from making use of the
works; they just would not have exclusive rights.
580
At the June 3, 2011 roundtable, much of the discussion regarding takings revolved
around whether federalization could be instituted in a manner that provided “just compensation”
for the extinguishment of ownership under state law. While “just compensation” is technically a
remedial matter to be considered after a finding that a taking has in fact occurred,
581
it is relevant
to consider whether provisions included as part of federalization, such as those that would enable
right holders to obtain reasonable, investment-backed expectations, would prevent the finding of
a taking under the criteria set forth in Penn Central Transp. Co. v. City of New York.
582
Stakeholders who focused most intently on preservation and access, such as MLA and ARSC,
suggested that application of the ordinary federal statutory terms to pre-1972 sound recordings
should be sufficient to address any takings concerns. They proposed varying terms that should be
available under federalization, which are discussed in further detail above. They also maintained
that pre-1923 sound recordings could go immediately into the public domain without significant
takings concerns because they had already enjoyed a significant term of protection, and because
such works had only de minimis value.
583
579
ARSC at 6; MLA at 13-14.
580
MLA Reply at 8-9.
581
An award of “just compensation” is the fair market value of the property at the time of the taking. New
York v. Sage, 239 U.S. 57, 61 (1915).
582
Penn Centra identified the principle criteria for determining a taking as “[t]he economic impact of the
regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct
investment-backed expectations” and the nature of the governmental action. 438 U.S. at 124.
583
Brooks T2 at 450-451; Harbeson T2 at 451-53.
United States Copyright Office PRE-1972 SOUND RECORDINGS
162
Participants representing right holders in pre-1972 sound recordings generally observed
that the takings problem is directly proportionate to the degree to which state laws are affected,
i.e. the more state laws are left intact, the less a taking would exist.
584
In response to the proposal
by Professor Townsend Gard and her Tulane Law School copyright law class, which included
suggestions for providing an avenue for right holders to secure protection for works until 2067,
585
RIAA acknowledged that if sound recording right holders were able to obtain a term of protection
that lasted until 2067, federalization would “probably not” present a takings problem.
586
RIAA
also commented that if federal copyright law covered pre-1972 sound recordings until 2067, then
such legislation would not have “taken away rights, however grand or de minimis they may be,
and we don’t have to worry about takings.”
587
3. Recommendation
The Office recognizes that pre-1972 sound recordings are both numerous and unique, and
that the economic impact of altering the current 2067 date for expiration of protection could vary
widely. It is reasonable to conclude that at least in some cases, the reduction of term that would
result from applying ordinary federal terms could produce a loss of significant economic value.
Most pre-1972 sound recordings, however, have little or no economic value. The Office does not
wish to advise Congress to protect all pre-1972 sound recordings under federal law until 2067
when only a fraction have economic value, particularly when it would be a significant public
benefit to make the others widely available for study and research.
584
Pariser T2 at 424.
585
Townsend Gard Reply at 22-23.
586
Pariser T2 at 460-61.
587
Id. at 424.
United States Copyright Office PRE-1972 SOUND RECORDINGS
163
In the past, when Congress considered copyright legislation that might have curtailed
parties’ vested ownership interests, e.g. in the Copyright Act of 1976 and the URAA, it prudently
chose to address right holders’ reasonable investment-backed expectations in the legislation itself.
The Office recommends similar prudent attention to the takings concerns raised here. It
recommends providing an avenue for right holders to realize reasonable investment-backed
expectations, in order to ensure that no unlawful takings occur as a consequence of federalization.
Federalization would provide a public benefit by enhancing preservation of and access to
these old recordings that are an important part of our culture. The Office believes that
federalization, in effect, constitutes a “public program adjusting the benefits of public life to
promote the common good.”
588
Having considered the views of the various stakeholders on the
issue, the Office believes, in principle, that a term of protection for all pre-1972 sound recordings
that extends until 2067 is excessive, and that pre-1972 sound recordings should have their term of
protection harmonized with that of other works from the same time period. Absent takings clause
considerations, the Office would therefore recommend that (1) all published pre-1923 sound
recordings enter the public domain immediately, (2) other published pre-1972 sound recordings
remain protected by copyright until 95 years after their date of first publication, and (3)
unpublished pre-1972 sound recordings enter the public domain 120 years after they were
created. However, as noted above, the Office understands the prudence of making adjustments to
address takings concerns.
In order to ensure that federalization does not effect an unlawful taking, the Office
recommends that all published pre-1972 sound recordings other than those first published before
1923 receive a term of protection of 95 years from publication, and that all unpublished pre-1972
sound recordings receive a term of 120 years from creation. However, in all cases, those
recordings would be eligible for protection until February 15, 2067, when federal preemption of
588
Penn Central, 438 U.S. at 124.
United States Copyright Office PRE-1972 SOUND RECORDINGS
164
state law protection is currently set to expire.
589
To secure the full term of protection until 2067,
the right holder of a pre-1972 sound recording would have to take certain actions during a
reasonable transition period, described in the section below.
590
The required actions include (1)
making the work available to the public, and (2) providing notice to the Copyright Office that the
work has been made available at a reasonable price and that the right holder intends thereby to
secure a full term of protection.
For works first published before 1923, the Office cannot recommend that the term of
copyright subsist until 2067. Such a term – of 144 years or more following publication – would
be unprecedented and, in the view of the Office, unjustified. Moreover, since all such works are
from the acoustical era and are usually of such low quality that relatively few of them are
marketable, it is difficult to fathom how the right holder could offer a compelling justification for
continuing to own exclusive rights for the next 55 years.
591
While a handful of pre-1923 works
may still have some commercial value,
592
that in and of itself does not justify maintaining
copyright protection for another half century. The fact is that all other works published before
1923 have entered the public domain. The Office sees no reason to create an anomaly by offering
continued protection of such sound recordings until 2067. On the other hand, Congress
recognized in the 1976 Copyright Act that providing at least an additional 25 years of protection
for works protected at common law would constitute a “reasonable period” that would satisfy
constitutional requirements of due process.
593
Following that precedent, the Office believes that
589
However, in all cases the term of protection for pre-1972 sound recordings would end no later than
February 15, 2067, when federal preemption of state law protection is currently scheduled to end. Thus,
the term of protection for an unpublished sound recording fixed in 1971 would end in 2067 rather than in
2091, 120 years after it was fixed. The rationale for this is that under current law, protection will end in
2067, and the Office sees no reason to extend the term even further.
590
Chapter VI.C.
591
See ARSC at 3; Brooks T2 at 347-48.
592
See, e.g., Pariser T2 at 425 (recordings by Caruso and Sousa).
593
H.R. REP. NO. 94–1476, at 139 (1976); see 17 U.S.C. § 303(a).
United States Copyright Office PRE-1972 SOUND RECORDINGS
165
giving owners of rights in sound recordings published before 1923 an opportunity to retain
exclusive rights for an additional 25 years after federalization of protection would constitute a
similar reasonable period.
The Office therefore recommends that a right holder of a sound recording first published
before 1923 should be permitted to obtain an additional 25 years of protection under federal law
if, during a reasonable transition period (but one that is somewhat shorter than the transition
period for other pre-1972 sound recordings), the right holder makes the work available to the
public and notifies the Copyright Office of that fact and of its intent to secure protection for that
25-year period.
Requiring right holders to take some affirmative action to retain their rights in this
situation is consistent with the Takings Clause.
594
In the case of pre-1972 sound recordings, right
holders would only lose the benefit of extended protection if they fail to make their works
available and provide notice of such use, requirements which are designed to advance the
interests of preservation of and public access to sound recordings.
For published pre-1972 sound recordings, the recommended term of 95 years from
publication is the term that the recordings would have if they had obtained a federal copyright
upon first publication.
595
For unpublished works, the recommended term of 120 years from
creation is the term the works would have received if they were anonymous or pseudonymous
works or if they were created as works for hire and had entered the federal copyright system in
1978 along with other unpublished works previously protected under state law.
596
The Office
believes that the 120-year term should apply even if the sound recording was not anonymous,
594
See U.S. v. Locke, 471 U.S. 84, 107-108 (1985) (citing Texaco, Inc. v. Short, 454 U.S. 516 (1982) (“this
Court has never required [Congress] to compensate the owner for the consequences of his own neglect”)).
595
See 17 U.S.C. § 304(a), (b).
596
See 17 U.S.C. §§ 303, 302(c).
United States Copyright Office PRE-1972 SOUND RECORDINGS
166
pseudonymous, or a work made for hire, and notwithstanding the general rule in Title 17 that
unpublished works receive a term of the life of the (last surviving) author plus 70 years.
597
The
Office believes that giving all unpublished pre-1972 sound recordings a fixed term of 120 years
from creation,
598
rather than a term based on the year in which the author (or the last surviving co-
author) died, is the best approach as a practical matter. This is due to a combination of factors
such as the collaborative nature of sound recording authorship, the difficulties in calculating term
of protection based upon the life of an author (or, in many cases, multiple authors) who may have
died many decades ago, and the likelihood that many pre-1972 sound recordings were created as
works for hire.
As indicated above, the process for assessing as-applied takings claims is articulated in
Penn Central Transp. Co. v. City of New York. The principal consideration is “[t]he economic
impact of the regulation on the claimant and, particularly, the extent to which the regulation has
interfered with distinct investment-backed expectations.”
599
In the case of pre-1972 sound
recordings, which are numerous and unique, the economic impact will vary widely, but it is
reasonable to conclude that reducing the term for certain works may result in a loss of significant
economic value.
Therefore, the recommendation includes an avenue for right holders to fulfill reasonable
investment-backed expectations in the form of both a reasonable automatic transition term of
federal protection and a means to exercise an option to extend protection to 2067 – an option
likely to be exercised only for works with commercial value. The Office understands that
providing such an opportunity for right holders to “moderate and mitigate the economic impact”
597
Sections 303 and 302(a) and (b) of the Copyright Act of 1976 would have provided a term of life of the
author plus 50 years, with a minimum term ending at the end of 2002, but the Sonny Bono Copyright Term
Extension Act of 1998 extended that term to life plus 70 years. Pub. L. No. 105-298, 112 Stat. 2827,
section 102(b)(1) and (2)(1998) (amending 17 U.S.C. § 302(a) and (b)).
598
Subject to an absolute end of protection on February 15, 2067 in all cases.
599
Penn Central, 438 U.S. at 124.
United States Copyright Office PRE-1972 SOUND RECORDINGS
167
significantly diminishes the legitimacy and likelihood of success of any takings claims that might
be asserted.
600
C. Transition Period
The Notice of Inquiry pointed out that it may be necessary to provide a transition period
to accommodate the switch from state protection of pre-1972 sound recordings to federal
protection. The Office sought comments on whether provision should be made for recordings for
which the statutory term of protection would already have expired, or would be expiring shortly,
by providing federal protection for a “reasonable period,” possibly with an opportunity for a
further extension of protection if the recordings are made available to the public during that
interim period. As indicated above, Congress has in the past determined that taking away
subsisting common law rights and substituting statutory rights for a reasonable period is fully in
harmony with the constitutional requirements of due process.
601
However, it is necessary to
determine what constitutes a “reasonable period.”
602
1. Length of Transition Period
There is some precedent on the question of what constitutes a reasonable transition
period. Congress addressed the potential effects on vested rights in the 1976 Copyright Act,
when it removed perpetual state law protection for unpublished works but provided that all
unpublished works would continue to enjoy copyright for at least an additional 25 years. So far
as the Office is aware, no takings claims were made as a result of this legislation.
600
See Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225-26 (1986).
601
See supra Chapter VI.B.2.b.
602
To be clear, it is possible that providing a reasonable transitional period may in and of itself serve as
providing reasonable just compensation for any taking of common law rights.
United States Copyright Office PRE-1972 SOUND RECORDINGS
168
The stakeholders in the current proceeding held varying views as to what sort of
transition period, if any, would be appropriate in the case of federalization of pre-1972 sound
recordings. Professor Townsend Gard expressed the view that either a one-year or five-year
transition period would be sufficient.
603
ARSC considered a brief transitional period to be
acceptable, but cautioned that it would be unreasonable to provide for a term that would extend to
2067.
604
SAA stated that a five year transition period would be reasonable, but also expressed the
view that it would be unreasonable to provide for a term that would extend to 2067.
605
Several
parties said that a transition period of 25 years would be unreasonable and excessive.
606
In fact,
no party endorsed a transition period of 25 years. However, stakeholders representing rights
holders maintained their general opposition to federalization or to any shortening of the terms
currently enjoyed under state law.
2. What Constitutes “Publicly Available” and “Notice Filed in the Office”
The questions of what would qualify as making a sound recording “publicly available,”
and what should be included in the “notice filed in the Office” for purposes of obtaining a term of
protection that extends until 2067, were first raised at the roundtable. No stakeholders provided
specific proposals. However, several raised concerns that should be considered in setting the
requirements for obtaining protection until 2067. These concerns included whether merely
making a recording available as a noninteractive stream could qualify as making the work
“publicly available;” whether there would be an ongoing obligation for a right holder to state that
603
Townsend Gard Reply at 22-23; Townsend Gard T2 at 438, 440.
604
Brooks T2 at 438-39.
605
SAA at 9.
606
Brooks T2 at 450-51; Harbeson T2 at 451-53.
United States Copyright Office PRE-1972 SOUND RECORDINGS
169
it is still exploiting a work; the economic and procedural burdens of a notice requirement; and
whether a notice requirement would constitute a type of formality.
607
3. Recommendation
The Office recommends a transition period falling between six and ten years for all pre-
1972 sound recordings other than those first published before 1923. Whether the period is closer
to six years or closer to ten is a question on which affected parties should provide additional
input. Such a transition period is somewhat longer than the range of one to five year transition
periods preferred by non-right holder stakeholders and is well short of the 25-year minimum
transition period provided in the 1976 Act. In addition, a six year transition period coincides with
the existing statute of limitations for a takings claim as set forth in 28 U.S.C. § 2501, which
would ensure that no right holder could initiate a takings claim after the opportunity to exercise
the option to extend the term has expired. As a practical matter, providing for a transition period
of at least six years would force right holders to decide whether to assert a takings claim before
the end of the transition period. Few if any are likely to do so, since the option of obtaining the
extended term by making the work available and notifying the Copyright Office would not be
very burdensome. But providing for a transition period that is sufficiently long that a takings
claim must be asserted by the end of that period would also have the benefit of obtaining finality
on the takings issue in a relatively short period of time.
Works first published before 1923 warrant special consideration because, relative to other
works of authorship under the Copyright Act, they would be in the public domain by now had
they been federalized in 1976. Therefore, although a transition period is still prudent to address
takings concerns, the Office recommends a shorter transition period of three years. A shorter
period is justified for such works in light of (1) the likelihood that very few, if any, right holders
will seek to extend the duration of their exclusive rights in those works, and (2) the great age of
607
Rosenthal T2 at 401; Schwartz T2 at 402-04; Townsend Gard T2 at 404-05, 408-09.
United States Copyright Office PRE-1972 SOUND RECORDINGS
170
those recordings and the concomitant need to permit preservation activities unfettered by
concerns that such activities might constitute copyright infringement.
608
Concerning what constitutes making the work sufficiently available to qualify for
protection until 2067 (or, in the case of works published before 1923, for an additional 25 years),
the Office again recommends that additional input be sought from the affected parties. However,
the Office believes that a work should be deemed available only if (1) it is available to the public
at a reasonable price, and (2) phonorecords are available to users. The latter point is especially
important. The Office does not believe that the requirement of making recordings available to the
public should be satisfied merely by providing non-interactive streaming access to the works.
609
Many stakeholders asserted that making works available only by means of streaming does not
provide sufficient access.
610
This suggests that the requirement should be met by distribution of
phonorecords of the recordings, which could but need not be achieved solely by means of digital
transmissions of phonorecords. As indicated above, the price must be reasonable.
The notice provided to the Office might be as simple as a notice similar to the one
prescribed in 17 U.S.C. § 108(h)(2)(C) that a work is subject to normal commercial exploitation
or that a copy or phonorecord of the work can be obtained at a reasonable price.
611
Alternatively,
it might be satisfied by submitting an application to register the copyright in the sound recording,
with a statement that the work has been made available to the public at a reasonable price.
608
See MLA at 6-7, 10; SAA at 2.
609
It may be useful to seek further input as to whether provision of interactive (i.e., “on-demand”)
streaming ought to be sufficient to satisfy the requirements to secure protection through 2067. However,
for reasons discussed immediately below, the Office is skeptical that such access should be considered
sufficient.
610
A number of commenters pointed out that research often requires the ability to physically handle
phonorecords, for example to study them in greater detail, to filter elements out, and to occasionally adjust
the rotation speed of cylinder and disk phonorecords. Brylawski T1 at 52; Brooks T1 at 110-12, T2 at 380-
82; Loughney T2 at 348-49. It is not clear whether all of those acts, or their equivalents, could be achieved
with a downloaded copy. Nevertheless, the Office is not inclined to recommend a requirement that the
recordings be distributed in the form of tangible phonorecords.
611
See 37 C.F.R. § 201.39.
United States Copyright Office PRE-1972 SOUND RECORDINGS
171
Consideration should also be given to whether additional periodic notices should be required, to
confirm that the sound recording continues to be available to the public.
612
D. Registration
1. Stakeholder Concerns about Registration
Owners of copyrighted works who register their works in a timely manner are eligible for
statutory damages and attorney’s fees. Moreover, registration is a prerequisite for a suit for
infringement of copyright in a United States work. While the Notice of Inquiry did not
specifically seek input on registration issues, a handful of stakeholders offered views on the effect
that federalization would have on copyright owners of pre-1972 sound recordings in light of the
registration provisions of the Copyright Act.
RIAA and A2IM questioned whether federalization would require that an entire catalog
of sound recordings must be immediately registered in order to ensure their ability to enforce
rights in their recordings. They expressed concern that this would be an undue burden on right
holders who would have to submit thousands of copyright registrations and recordations for these
recordings, and on the Copyright Office, which would have to process them, within a short time
after the law went into effect. They cited the requirements of section 411 of the Copyright Act,
which establishes registration as a prerequisite for an infringement suit.
613
They also pointed to
612
RIAA suggested that a requirement of “you must assert the rights or you lose the rights” is “anathema
to copyright law.” Schwartz T2 at 391, 402-04. However, the notice requirement suggested herein, and
any possible additional periodic notices, would be required only if a copyright owner wishes to secure the
additional benefit of an extraordinarily long term, one that is beyond (1) that which other works enjoy
under U.S. copyright law, (2) that provided by the laws of most countries around the world, and (3) that
which is required by international obligations. The Copyright Act already offers certain additional benefits
that copyright owners may enjoy only if they comply with certain formalities. See, e.g., 17 U.S.C. § 412
(registration as prerequisite for statutory damages and attorney’s fees); 17 U.S.C. § 108(h)(2)(c) (notice by
copyright owner that a work is subject to normal commercial exploitation or that a copy of the work may be
obtained at a reasonable price makes inapplicable the privilege of libraries and archives to reproduce,
distribute, display or perform copies or phonorecords of works during the last 20 years of copyright term).
613
17 U.S.C. § 411(a) provides, in pertinent part:
United States Copyright Office PRE-1972 SOUND RECORDINGS
172
section 412, which sets forth “timely” registration as an eligibility requirement for statutory
damages or attorney’s fees.
614
They stated that such provisions would have to be modified to
accommodate registrations for pre-1972 sound recordings to avoid providing federal rights
devoid of effective remedies.
615
Similar sentiments regarding the burdens of registration were
expressed in the roundtable by A2IM and NMPA.
616
In its reply comment, ARSC stated that it would be delighted if federalization encouraged
thousands of copyright registrations. It claimed that federal registrations provide a means of
enforcing compliance with other requirements of copyright; enhance publicly available
information; increase the value of the works to proprietors and users; and aid title searches. It
asserted that extending these inducements for registration and deposit to pre-1972 sound
Except for an action brought for a violation of the rights of the author under
section 106A(a), and subject to the provisions of subsection (b), no action for
infringement of the copyright in any United States work shall be instituted until
preregistration or registration of the copyright claim has been made in
accordance with this title. In any case, however, where the deposit, application,
and fee required for registration have been delivered to the Copyright Office in
proper form and registration has been refused, the applicant is entitled to
institute an action for infringement if notice thereof, with a copy of the
complaint, is served on the Register of Copyrights.
614
17 U.S.C. § 412:
In any action under this title, other than an action brought for a violation of
the rights of the author under section 106A(a), an action for infringement of the
copyright of a work that has been preregistered under section 408(f) before the
commencement of the infringement and that has an effective date of registration
not later than the earlier of 3 months after the first publication of the work or 1
month after the copyright owner has learned of the infringement, or an action
instituted under section 411(c), no award of statutory damages or of attorney’s
fees, as provided by sections 504 and 505, shall be made for—
(1) any infringement of copyright in an unpublished work commenced
before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the
work and before the effective date of its registration, unless such registration
is made within three months after the first publication of the work.
615
RIAA/A2IM at 30. They repeated these assertions at the public meeting. Schwartz T1 at 27, 95;
Pariser T1 at 234-37, 273-79.
616
Bengloff T1 at 281-84; Rosenthal T1 at 288-90.
United States Copyright Office PRE-1972 SOUND RECORDINGS
173
recordings would promote predictability and public access to these works, as well as aid in the
preservation of historic recordings.
617
The application of registration requirements as well as other provisions of current law to
pre-1972 sound recordings presents legitimate concerns. Specifically: sections 405 and 406
would need to be amended to clarify that the validity of a copyright in a pre-1972 sound
recording is not affected by the distribution, before the effective date of the Berne Convention
Implementation Act of 1988, of phonorecords of the sound recording without a copyright notice
or with a defective copyright notice; section 407 regarding deposit requirements may need to be
amended to accommodate instances in which best edition deposits are no longer available; section
410 regarding prima facie evidence of the validity of the copyright and of the facts stated in the
certificate may need to be altered in recognition of the fact that registration of pre-1972 sound
recordings will occur well beyond five years from first publication of the work; and section 205
regarding priority of conflicting transfers may need to be reconsidered in recognition of the fact
that for over a century, transfers of ownership of rights in pre-1972 sound recordings have taken
place without recording the documents of transfer with the Copyright Office.
2. Recommendation
The Office does not see a need to amend the section 411 requirement of registration as a
prerequisite for an infringement suit for pre-1972 sound recordings.
618
If a pre-1972 sound
recording is infringed, registration of the copyright could be made easily and quickly. However,
617
ARSC Reply at 18-19; see also Brooks T1 at 239-40.
618
Some courts have erroneously interpreted section 411(a) as being satisfied merely by submitting an
application, fee and deposit to the Copyright Office, rather than by the Office’s issuance of a certificate of
registration or its refusal to issue a certificate. See, e.g., Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606
F.3d 612 (9th Cir.), cert. denied, 131 S.Ct. 686 (2010). But see La Resolana Architects, PA v. Clay
Realtors Angel Fire, 416 F.3d 1195, 1202-04 (10th Cir. 2005). At most, a transitional amendment
providing that, for a period of perhaps three to five years, an owner of a copyright in a pre-1972 sound
recording could satisfy the requirements of section 411(a) simply by submitting the
required elements to
the Copyright Office, would remedy any short-term disadvantage experienced by copyright owneres with
respect to these newly federalized works.
United States Copyright Office PRE-1972 SOUND RECORDINGS
174
the Office understands the desirability of modifying section 412 eligibility requirements for
statutory damages and attorney’s fees for pre-1972 sound recordings. Section 412 provides as a
general matter that a copyright owner who prevails on a claim of copyright infringement is
eligible to seek an award of statutory damages or attorney’s fees if the infringed work was
registered prior to the commencement of the infringement or within 3 months after the work was
first published. For pre-1972 sound recordings that are infringed on or shortly after the date on
which federal protection commences, a “timely” registration under section 412 would be difficult
if not impossible to accomplish. To avoid placing an unreasonable burden on right holders to
submit registration applications in the first days following the effective date of federal protection
for pre-1972 sound recordings, and the resulting burden on the Copyright Office, the Office
recommends a transitional provision that would permit, for a period of perhaps three to five years,
owners of copyrights in pre-1972 sound recordings to seek statutory damages and attorney’s fees
notwithstanding their failure to register the copyright prior to the commencement of infringement.
Such a provision would encourage registration within a reasonable time but make
accommodations for copyright owners – as well as for the registration staff of the Copyright
Office – faced with the sudden need to register great numbers of works in a short period of time.
While the Office does not at this time have specific recommendations for dealing with the
remaining issues relating to registration of pre-1972 sound recordings, it has suggested in the
preceding section how those issues might be resolved. Certainly none of those issues is
insuperable, but they may require additional consideration and input from stakeholders.
United States Copyright Office PRE-1972 SOUND RECORDINGS
175
LP disc
VII. RECOMMENDATIONS
The U.S. Copyright Office hereby makes the following recommendations:
Federal copyright protection should apply to sound recordings fixed before February 15,
1972, with special provisions to address ownership issues, term of protection, transition
period, and registration.
Federal copyright protection for pre-1972 sound recordings means that all of the rights
and limitations of Title 17 of the U.S. Code applicable to post-1972 sound recordings
would apply, including section 106(6) (public performance right for digital audio
transmissions), section 107 (fair use), section 108 (certain reproduction and distribution
by libraries and archives), section 110 (exemption for certain performances and displays),
United States Copyright Office PRE-1972 SOUND RECORDINGS
176
section 111 (statutory license for cable retransmissions of primary transmissions), section
112 (ephemeral recordings by broadcasters and transmitting organizations), section 114
(statutory license for certain transmissions and exemptions for certain other
transmissions), section 512 (safe harbor for Internet service providers), Chapter 10
(digital audio recording devices), and Chapter 12 (copyright protection and management
systems), as well as any future applicable rights and limitations (e.g., orphan works) that
Congress may choose to enact.
The initial owner(s) of the federal copyright in a pre-1972 sound recording should be the
person(s) who own(s) the copyright under applicable state law at the moment before the
legislation federalizing protection goes into effect.
Section 203 of the Copyright Act should be amended to provide that authors of pre-1972
sound recordings are entitled to terminate grants of transfers or licenses of copyright that
are made on or after the date federal protection commences. However, termination of
pre-federalization grants made under state law prior to federalization presents serious
issues with respect to retroactivity and takings, so the Office does not recommend
providing termination rights for grants made prior to federalization of protection.
The term of protection for sound recordings fixed prior to February 15, 1972, should be
95 years from publication (with “publication” as defined in section 101) or, if the work
had not been published prior to the effective date of legislation federalizing protection,
120 years from fixation. However,
o In no case would protection continue past February 15, 2067, and
o In cases where the foregoing terms would expire before 2067, a right holder may
take the action described below to obtain a longer term.
For pre-1972 sound recordings other than those published before 1923, a transition period
lasting between six and ten years from enactment of federal protection should be
United States Copyright Office PRE-1972 SOUND RECORDINGS
177
established, during which a right holder may make a pre-1972 sound recording available
to the public and file a notice with the Copyright Office confirming availability at a
reasonable price and stating the owner’s intent to secure protection until 2067. If a right
holder does this, the term of protection of the sound recording will not expire until 2067,
provided that the recording remains publicly available at a reasonable price during its
extended term of protection.
For sound recordings published before 1923, a transition period lasting three years from
enactment of federal protection should be established, during which a right holder may
make a pre-1923 sound recording available to the public and file a notice with the
Copyright Office confirming availability at a reasonable price and stating the owner’s
intent to secure protection for 25 years after the date of enactment of the legislation that
federalizes protection. If a right holder does this, the term of protection of the sound
recording will not expire until the end of the 25-year period, provided that the recording
remains publicly available at a reasonable price during its extended term of protection.
Regardless of a right holder’s actions, all pre-1972 sound recordings should enjoy federal
protection at least until the end of the relevant transition period described above.
Regarding the requirement of timely registration in order to recover statutory damages or
attorney’s fees in an infringement suit, a transitional period of between three and five
years should be established, during which right holders in pre-1972 sound recordings can
seek statutory damages and attorney’s fees notwithstanding the lack of registration prior
to filing suit.
Adjustments should be made or at least considered with respect to certain other
provisions of the Copyright Act to take into account difficulties that owners of rights in
pre-1972 sound recordings may encounter. Among those provisions are: section 405
(notice of copyright: omission of notice on certain copies and phonorecords), section 406
United States Copyright Office PRE-1972 SOUND RECORDINGS
178
(notice of copyright: error in name or date on certain copies and phonorecords), section
407 (deposit of copies or phonorecords for Library of Congress), section 410 (prima facie
weight of certificate of registration), and section 205 (regarding priority between
conflicting transfers recorded in the Copyright Office).
appendix a Initial Public Notice
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U.S. National Income and Product
Accounts (NIPAs) published by the
Bureau of Economic Analysis (BEA).
The output data are based on a value-
added concept and come from product-
side estimates of Gross Domestic
Product.
The primary source of hours data is
the BLS Current Employment Statistics
(CES) program, which collects hours
paid for nonsupervisory workers. These
data are adjusted using data from the
Current Population Survey, the National
Compensation Survey, and other
sources to account for differences
between the desired concept of hours
(hours worked for all employed persons)
and the CES concept (hours paid for
production and nonsupervisory
employees).
For detailed industries, annual output
measures represent the total value of
goods and services produced, and are
based primarily on data from the U.S.
Census Bureau. These measures use a
sectoral output concept, which differs
from real gross output in that it excludes
output that is shipped to other
establishments in the same industry. As
with the nonfarm business sector
productivity, industry hours are
constructed primarily from payroll data
from the BLS CES survey, supplemented
with data from the CPS and other
Federal data sources.
Multifactor productivity is estimated
in a conceptual framework based on the
economic theory of the firm. This
framework guides the construction and
interpretation of the measures. For the
private business and nonfarm business
sectors, value added output is compared
to inputs of labor and capital. For
detailed industries, sectoral output is
compared to capital and labor inputs as
well as intermediate inputs of energy,
non-energy materials and business
services provided by establishments
outside of each industry or sector.
III. Desired Focus of Comments
Comments and recommendations are
requested from the public on the
following aspects of the BLS
productivity measurement program:
• The scope and amount of detail
covered by and published in the
productivity datasets.
• The concepts and frameworks used
in measuring outputs, inputs, and
productivity.
• The sources of data used in
productivity measurement.
• Areas of research that the BLS
productivity program should
emphasize.
In your recommendations to the
productivity program, it would be
particularly helpful if you could explain
how the changes would make the data
more accurate or more useful.
Signed at Washington, DC, this 28th day of
October 2010.
Kimberley Hill,
Chief, Division of Management Systems,
Bureau of Labor Statistics.
[FR Doc. 2010–27727 Filed 11–2–10; 8:45 am]
BILLING CODE 4510–24–P
LIBRARY OF CONGRESS
[Docket No. 2010–4]
Copyright Office; Federal Copyright
Protection of Sound Recordings Fixed
Before February 15, 1972
AGENCY
: Copyright Office, Library of
Congress.
ACTION
: Notice of inquiry.
SUMMARY
: Congress has directed the
Copyright Office to conduct a study on
the desirability and means of bringing
sound recordings fixed before February
15, 1972, under Federal jurisdiction.
Currently, such sound recordings are
protected under a patchwork of State
statutory and common laws from their
date of creation until 2067. This notice
requests written comments from all
interested parties regarding Federal
coverage of pre-1972 sound recordings.
Specifically, the Office seeks comments
on the likely effect of Federal protection
upon preservation and public access,
and the effect upon the economic
interests of rights holders. The Office
also seeks comments on how the
incorporation of pre-1972 sound
recordings into Federal law might best
be achieved.
DATES
: Initial written comments must be
received in the Office of the General
Counsel of the Copyright Office no later
than December 20, 2010. Reply
comments must be received in the
Office of the General Counsel of the
Copyright Office no later than December
3, 2010.
ADDRESSES
: The Copyright Office
strongly prefers that comments be
submitted electronically. A comment
page containing a comment form is
posted on the Copyright Office Web site
at http://www.copyright.gov/docs/
sound/comments/comment-submission-
index.html. The Web site interface
requires submitters to complete a form
specifying name and organization, as
applicable, and to upload comments as
an attachment via a browse button. To
meet accessibility standards, each
comment must be uploaded in a single
file in either the Adobe Portable
Document File (PDF) format that
contains searchable, accessible text (not
an image); Microsoft Word;
WordPerfect; Rich Text Format (RTF); or
ASCII text file format (not a scanned
document). The maximum file size is 6
megabytes (MB). The name of the
submitter and organization should
appear on both the form and the face of
the comments. All comments will be
posted on the Copyright Office Web site,
along with names and organizations.
If electronic submission of comments
is not feasible, comments may be
delivered in hard copy. If hand
delivered by a private party, an original
and five copies of a comment or reply
comment should be brought to the
Library of Congress, U.S. Copyright
Office, Room LM–401, James Madison
Building, 101 Independence Ave., SE.,
Washington, DC 20559, between 8:30
a.m. and 5 p.m. The envelope should be
addressed as follows: Office of the
General Counsel, U.S. Copyright Office.
If delivered by a commercial courier,
an original and five copies of a comment
or reply comment must be delivered to
the Congressional Courier Acceptance
Site (‘‘CCAS’’) located at 2nd and D
Streets, SE., Washington, DC between
8:30 a.m. and 4 p.m. The envelope
should be addressed as follows: Office
of the General Counsel, U.S. Copyright
Office, LM–403, James Madison
Building, 101 Independence Avenue,
SE., Washington, DC 20559. Please note
that CCAS will not accept delivery by
means of overnight delivery services
such as Federal Express, United Parcel
Service or DHL.
If sent by mail (including overnight
delivery using U.S. Postal Service
Express Mail), an original and five
copies of a comment or reply comment
should be addressed to U.S. Copyright
Office, Copyright GC/I&R, P.O. Box
70400, Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT
:
David O. Carson, General Counsel, or
Chris Weston, Attorney Advisor.
Copyright GC/I&R, P.O. Box 70400,
Washington, DC 20024. Telephone:
(202) 707–8380. Telefax: (202) 707–
8366.
SUPPLEMENTARY INFORMATION
:
Introduction
The Copyright Office is conducting a
study on ‘‘the desirability of and means
for bringing sound recordings fixed
before February 15, 1972, under federal
jurisdiction.’’ When it enacted the
Omnibus Appropriations Act of 2009,
Congress directed the Register of
Copyrights to conduct such a study and
seek comments from interested parties.
H. Comm. On Appropriations, H.R.
1105, Public Law 111–8 [Legislative
Text and Explanatory Statement] 1769
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1
See generally Rob Bamberger and Sam
Brylawski, National Recording Preservation Board,
The State of Recorded Sound Preservation in the
United States: A National Legacy At Risk in the
Digital Age (2010).
2
Tim Brooks, National Recording Preservation
Board, Survey of Reissues of U.S. Recordings 7
(2005). For more recent years in that period, the
percentage of recordings that were available
reached 33 percent.
(Comm. Print 2009). With this notice,
the Copyright Office explains the
background to the study and seeks
public comment on whether pre-1972
sound recordings should be brought
within the Federal copyright statute.
The Office also poses a number of
questions on specific topics relevant to
the overall inquiry.
Background
Sound recordings are ‘‘works that
result from the fixation of a series of
musical, spoken, or other sounds, but
not including the sounds accompanying
a motion picture or other audiovisual
work, regardless of the nature of the
material objects, such as disks, tapes or
other phonorecords, in which they are
embodied.’’ 17 U.S.C. 101. Until 1972,
sound recordings were not among the
works of authorship protected by the
Federal copyright statute; they enjoyed
protection only under State law. In
1971, Congress passed the Sound
Recording Amendment, which provided
that sound recordings first fixed on or
after February 15, 1972, would be
eligible for protection under Federal
copyright law. Sound recordings first
fixed prior to that date (pre-1972 sound
recordings) continued to be protected
under State law.
In 1976, when Congress passed the
Copyright Revision Act, it created a
unitary system of copyright, by bringing
unpublished works (until then protected
by State law) under the Federal
copyright law, and preempting all State
laws that provided rights equivalent to
copyright. 17 U.S.C. 301(a). However, it
explicitly excluded State laws
concerning pre-1972 sound recordings
from the general preemption provision,
allowing those laws to continue in effect
until 2047. 17 U.S.C. 301(c). That date
was later extended by the Copyright
Term Extension Act (CTEA) until 2067.
Public Law 105–298, 112 Stat. 2827
(1998). On February 15, 2067, all State
law protection for pre-1972 sound
recordings will be preempted by Federal
law and will effectively cease.
Thus, there are currently two primary
regimes of protection for sound
recordings: State law protects pre-1972
recordings, and Federal copyright law
protects sound recordings of U.S. origin
first fixed on or after February 15, 1972.
Federal law also protects pre-1972
sound recordings of foreign origin that
were eligible for copyright restoration
under the Uruguay Round Agreements
Act (URAA). Public Law 103–465, 108
Stat. 4809, 4973 (1994). This legislation,
passed in 1994 in order to implement
U.S. obligations under the TRIPS
(‘‘Trade Related Aspects of Intellectual
Property’’) Agreement, ‘‘restored’’
copyright protection to certain works of
foreign origin that were in the public
domain in the United States on the
effective date, which for most works
was January 1, 1996. Because most other
countries provide a 50-year term of
protection for sound recordings,
generally only those foreign sound
recordings fixed in 1946 and after were
eligible for restoration under the URAA.
One consequence of the continued
protection under State law of pre-1972
sound recordings is that there are
virtually no sound recordings in the
public domain in the United States. Pre-
1972 sound recordings, no matter how
old, can have State law protection until
2067, so that some sound recordings
will conceivably be protected for more
than 170 years. Even pre-1972 foreign
sound recordings that were ineligible for
copyright restoration because their term
of protection had expired in their home
countries are eligible for State law
protection, at least in New York. See
Capitol Records, Inc. v. Naxos of
America, Inc., 830 N.E.2d 250 (N.Y.
2005). Those sound recordings that do
have Federal copyright protection will
not enter the public domain for many
years. For example, sound recordings
copyrighted in 1972 will not enter the
public domain until the end of 2067.
State law protection for pre-1972
sound recordings is provided by a
patchwork of criminal laws, civil
statutes and common law. Almost all
States have criminal laws that prohibit
duplication and sale of recordings done
knowingly and willfully with the intent
to sell or profit commercially from the
copies. Most States also have some form
of civil protection, sometimes under the
rubric of ‘‘common law copyright,’’
sometimes under ‘‘misappropriation’’ or
‘‘unfair competition,’’ and sometimes
under ‘‘right of publicity.’’ Occasionally
these forms of protection are referred to
collectively as ‘‘common law copyright’’
or ‘‘common law protection,’’ but in fact
not all civil protection for sound
recordings is common law—some States
have statutes that relate to unauthorized
use of pre-1972 sound recordings—and
a true ‘‘common law copyright’’ claim
differs from a claim grounded in unfair
competition or right of publicity. In
Capitol Records, Inc. v. Naxos of
America, Inc., the New York Court of
Appeals (the highest court of the State)
explained that a common law copyright
claim in New York ‘‘consists of two
elements: (1) The existence of a valid
copyright; and (2) unauthorized
reproduction of the work protected by
copyright.’’ Id. at 563. It went on to state
that ‘‘[c]opyright law is distinguishable
from unfair competition, which in
addition to unauthorized copying and
distribution requires competition in the
marketplace or similar actions designed
for commercial benefit.’’ Id.
The scope of civil protection varies
from State to State, and even within a
State there is often uncertainty because
there are few court decisions that have
defined the scope of the rights and the
existence and scope of exceptions. What
is permissible in one State may not be
in another. This uncertainty is
compounded by the unsettled state of
the law concerning the activities that
subject an entity to a State’s jurisdiction.
In general, Federal law is better
defined, both as to the rights and the
exceptions, and more consistent than
State law. In some respects Federal law
provides stronger protection. For
example, owners of copyrighted works
who timely register are eligible for
statutory damages and attorneys fees. 17
U.S.C. 412, 504, and 505. In addition,
copyright-protected sound recordings
are eligible for protection under 17
U.S.C. 1201, which prohibits
circumvention of technological
protection that protects access to a
copyrighted work. At the same time
Federal law provides a more consistent
and well-articulated set of exceptions.
While some States include exceptions in
their laws protecting sound recordings,
the Federal ‘‘fair use’’ and library and
archives exceptions—17 U.S.C. 107 and
108, respectively—are likely much more
robust and effective in providing safety
valves for the unauthorized but socially
valuable use of copyrighted works.
The Copyright Office Study
Faced with the uncertain patchwork
of State laws that cover pre-1972
recordings, libraries, archives and
educational institutions have voiced
serious concerns about their legal ability
to preserve pre-1972 recordings, and
provide access to them to researchers
and scholars.
1
A 2005 study concluded
that copyright owners had, on average,
made available on CD only 14 percent
of the sound recordings they control
that were released from 1890 through
1964.
2
Reissues of recordings from
before World War II are particularly
scarce. While the statistics and
conclusions from that report are now
five years old, the Copyright Office
knows of no reason to believe that the
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situation has changed significantly since
that time.
Copies of many recordings from these
eras reside in libraries and archives.
Their custodians, however, are
concerned that without the certainty of
Federal copyright exceptions, the
reproduction and distribution activities
necessary to preserve and provide
access to these recordings will lack clear
legal bases. As a result, some have urged
that consideration be given to bringing
pre-1972 sound recordings under
Federal copyright law, so that users
have to contend with only a single set
of laws.
When it directed the Register of
Copyrights to conduct a study on the
desirability of and means for bringing
sound recordings fixed before February
15, 1972 under Federal jurisdiction,
Congress specifically stated:
The study is to cover the effect of federal
coverage on the preservation of such sound
recordings, the effect on public access to
those recordings, and the economic impact of
federal coverage on rights holders. The study
is also to examine the means for
accomplishing such coverage.
H.R. 1105, Public Law 111–8
[Legislative Text and Explanatory
Statement] 1769. As part of the study,
the Register is to provide an opportunity
for interested parties to submit
comments. The Register’s report to
Congress on the results of the study is
to include any recommendations that
the Register considers appropriate.
The body of pre-1972 sound
recordings is vast. Commercially
released ‘‘popular’’ recordings come
most readily to mind—from Rudy Vallee
to Frank Sinatra and Ella Fitzgerald to
the Beatles and the Rolling Stones. But
pre-1972 commercial recordings
encompass a wide range of genres:
ragtime and jazz, rhythm and blues,
gospel, country and folk music, classical
recordings, spoken word recordings and
many others. There are, in addition,
many unpublished recordings such as
journalists’ tapes, oral histories, and
ethnographic and folklore recordings.
There are also recordings of old radio
broadcasts, which were publicly
disseminated by virtue of the broadcast,
but in many cases are technically
unpublished under the standards of the
U.S. Copyright Act.
The Copyright Office requests that
parties with an interest in the question
of whether to protect pre-1972 sound
recordings as part of the Federal
copyright statute submit their comments
on the issue and, in those comments,
respond to the specific questions below.
A party need only address those issues
on which it has information or views,
but the Office asks that all answers be
as comprehensive as possible.
Specific Questions
Preservation of and Access to Pre-1972
Sound Recordings
The following questions are meant to
elicit information about how Federal
protection of pre-1972 sound recordings
will affect preservation and public
access.
Preservation
1. Do libraries and archives, which are
beneficiaries of the limitations on
exclusive rights in section 108 of the
Copyright Act, currently treat pre-1972
sound recordings differently from those
first fixed in 1972 or later (‘‘copyrighted
sound recordings’’) for purposes of
preservation activities? Do educational
institutions, museums, and other
cultural institutions that are not
beneficiaries of section 108 treat pre-
1972 sound recordings any differently
for these purposes?
2. Would bringing pre-1972 sound
recordings under Federal law—without
amending the current exceptions—affect
preservation efforts with respect to
those recordings? Would it improve the
ability of libraries and archives to
preserve these works; and if so, in what
way? Would it improve the ability of
educational institutions, museums, and
other cultural institutions to preserve
these works?
Access
3. Do libraries and archives currently
treat pre-1972 sound recordings
differently from copyrighted sound
recordings for purposes of providing
access to those works? Do educational
institutions, museums, and other
cultural institutions treat them any
differently?
4. Would bringing pre-1972 sound
recordings under Federal law—without
amending the current exceptions—affect
the ability of such institutions to
provide access to those recordings?
Would it improve the ability of libraries
and archives to make these works
available to researchers and scholars;
and if so, in what way? What about
educational institutions, museums, and
other cultural institutions?
5. Currently one group of pre-1972
recordings does have Federal copyright
protection—those of foreign origin
whose copyrights were restored by law.
(See the discussion of the URAA above.)
In order to be eligible for restoration,
works have to meet several conditions,
including: (1) They cannot be in the
public domain in their home country
through expiration of the term of
protection on the date of restoration; (2)
they have to be in the public domain in
the United States due to noncompliance
with formalities, lack of subject matter
protection (as was the case for sound
recordings) or lack of national
eligibility; and (3) they have to meet
national eligibility standards, i.e., the
work has to be of foreign origin. 17
U.S.C. 104A(h)(6). In determining
whether a work was in the public
domain in its home country at the time
it became eligible for restoration, one
has to know the term of protection in
that country; in most countries, sound
recordings are protected under a
‘‘neighboring rights’’ regime which
provides a 50-year term of protection.
As a result, most foreign sound
recordings first fixed prior to 1946 are
not eligible for restoration. To be of
foreign origin, a work has to have ‘‘at
least one author or rightholder who was,
at the time the work was created, a
national or domiciliary of an eligible
country, and if published, [must have
been] first published in an eligible
country and not published in the United
States during the 30-day period
following publication in such eligible
country.’’ 17 U.S.C. 104A(h)(6)(D).
Does the differing protection for this
particular group of recordings lead to
their broader use? Have you had any
experience with trying to identify which
pre-1972 sound recordings are (or may
be) so protected? Please elaborate.
6. Are pre-1972 sound recordings
currently being treated differently from
copyrighted sound recordings when use
is sought for educational purposes,
including use in connection with the
distance education exceptions in 17
U.S.C. 110(2)? Would bringing pre-1972
sound recordings under Federal law
affect the ability to make these works
available for educational purposes; and
if so, in what way?
7. Do libraries and archives make
published and unpublished recordings
available on different terms? What about
educational institutions, museums, and
other cultural institutions? Are
unpublished works protected by State
common law copyright treated
differently from unpublished works
protected by Federal copyright law?
Would bringing pre-1972 sound
recordings under Federal law affect the
ability to provide access to unpublished
pre-1972 sound recordings?
Economic Impact
Likely economic impact is an
important consideration in determining
whether pre-1972 sound recordings
should be brought under Federal law,
and how that change might be
accomplished. The questions below are
intended to elicit information regarding
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3
The types of works that can qualify as
commissioned works for hire include: A
contribution to a collective work, a part of a motion
picture or other audiovisual work, a translation, a
supplementary work, a compilation, an
instructional text, a test, answer material for a test,
or an atlas. 17 U.S.C. 101(2).
what revenue expectations copyright
owners have with respect to pre-1972
sound recordings, and how these
expectations would be affected by
bringing these recordings under Federal
protection. These questions are also
intended to elicit information
concerning the determination of
ownership in such recordings.
Value of the Recordings
8. Are there commercially valuable
sound recordings first fixed before 1923
(e.g., that would be in the public
domain if the ordinary Federal term of
protection applied) that would be
adversely affected? Please describe these
recordings, including whether or not
they are currently under commercial
exploitation (and if not, why not) and
elaborate on the nature and extent of
their commercial value.
9. Are there commercially valuable
sound recordings first fixed from 1923–
1940 that would be adversely affected?
Please describe these recordings,
including whether or not they are
currently under commercial
exploitation (and if not, why not) and
elaborate on the nature and extent of
their commercial value.
10. With regard to commercial
recordings first fixed after 1940: What is
the likely commercial impact of
bringing these works under Federal
copyright law?
11. Would there be any negative
economic impact of such a change, e.g.,
in the scope of rights, or the certainty
and enforceability of protection?
12. Would there be any positive
economic impact of such a change, e.g.,
in the scope of rights, or the certainty
and enforceability of protection?
13. What would be the economic
impact of bringing pre-1972 sound
recordings into the section 114 statutory
licensing mechanism applicable to
certain digital transmissions of sound
recordings? Would there be other
advantages or disadvantages in bringing
pre-1972 sound recordings within the
scope of the section 114 statutory
license?
14. Does the uncertainty of different
regimes under State law make it less
practical for rights holders to bring suit
under State law? Are you aware of any
infringement suits concerning pre-1972
sound recordings brought in the past 10
years?
15. Would business arrangements
concerning sampling of sound
recordings be affected by bringing pre-
1972 recordings under Federal law; and
if so, how would they be affected? Are
pre-1972 sound recordings currently
treated differently with respect to
sampling?
Ownership of Rights in the Recordings
It is worthwhile to explore State law
principles applicable to authorship and
ownership of rights in sound recordings
to determine whether there would be
any tension with Federal copyright law
principles.
16. Under Federal law the owner of
the sound recording will generally be, in
the first instance, the performer(s)
whose performance is recorded, the
producer of the recording, or both. Do
State laws attribute ownership
differently? If so, might that lead to
complications?
17. Under Federal law, some
copyrighted sound recordings qualify as
works made for hire, either because (1)
they are works prepared by employees
in the scope of their employment, or (2)
they were specially ordered or
commissioned, if the parties agree in
writing that the works will be works
made for hire, and the works fall within
one of nine specific categories of works
eligible to be commissioned works made
for hire. 17 U.S.C. 101.
3
If a work
qualifies as a work made for hire, it is
the employer or commissioning party
who is the legal author and initial rights
holder, rather than the individual
creator of the work. Prior to the January
1, 1978, the courts recognized the work
for hire doctrine with respect to works
created by employees in the course of
their employment, and particularly from
the mid-1960s on, they recognized
commissioned works made for hire,
under such standards as whether the
work was created at the hiring party’s
‘‘instance and expense’’ or whether the
hiring party had the ‘‘right to control’’ or
exercised ‘‘actual control’’ over the
creation of the work.
To what extent does State law
recognize the work made for hire
doctrine with respect to sound
recordings? To what extent does State
law recognize commissioned works for
hire, and under what standard? Have
State laws in this respect changed over
time? Is there any likelihood that, if
Federal standards were applied,
ownership of pre-1972 sound recordings
would be attributed differently? Is there
any reason to believe that, if pre-1972
sound recordings were to become
protected under Federal copyright law,
their ownership would then become
subject to Federal work-made-for-hire
standards?
18. Under Federal copyright law,
ownership of rights is distinct from
ownership of the material object in
which the copyrighted work is
embodied. Transferring ownership of
such an object, including the ‘‘original,’’
i.e., the copy or phonorecord in which
the copyrighted work was first fixed,
does not convey rights in the copyright.
17 U.S.C. 202. A transfer of copyright
ownership must be made in a writing
signed by the owner of the rights or her
authorized agent. Id. 204.
Some State laws provide (or for a
period of time provided) that
transferring the original copy of a work
could operate as a transfer of copyright
ownership, unless the rights holder
specifically reserved the copyright
rights. To what extent have these State
law principles been applied with
respect to ‘‘master recordings’’? How if at
all would they affect who would own
the Federal statutory rights, if pre-1972
sound recordings were brought under
Federal law?
19. If pre-1972 sound recordings were
to be given protection under the Federal
copyright statute, how would or should
copyright ownership of such recordings
be determined? Has the issue arisen
with respect to pre-1978 unpublished
works that received Federal statutory
copyrights when the Copyright Act of
1976 came into effect?
20. What other considerations are
relevant in assessing the economic
impact of bringing pre-1972 sound
recordings under Federal protection?
Term of Protection and Related
Constitutional Considerations
Term of Protection
21. If pre-1972 sound recordings are
brought under Federal copyright law,
should the basic term of protection be
the same as for other works—i.e., for the
life of the author plus 70 years or, in the
case of anonymous and pseudonymous
works and works made for hire, for a
term of 95 years from the year of its first
publication, or a term of 120 years from
the year of its creation, whichever
expires first? Can different treatment for
pre-1972 sound recordings be justified?
22. Currently, States are permitted to
protect pre-1972 sound recordings until
February 15, 2067. If these recordings
were incorporated into Federal
copyright law and the ordinary statutory
terms applied, then all works fixed prior
to 1923 would immediately go into the
public domain. Most pre-1972 sound
recordings, including all published,
commercial recordings, would
experience a shorter term of protection.
However, as the date of the recording
approaches 1972, the terms under
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67781
Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices
Federal and State law become
increasingly similar. For example, a
sound recording published in 1940
would be protected until the end of
2035 instead of February 15, 2067; one
published in 1970 would be protected
until the end of 2065 instead of
February 15, 2067. In the case of one
category of works—unpublished sound
recordings whose term is measured by
the life of author—there would actually
be an extension of term if the author
died after 1997. For example, if the
author of an unpublished pre-1972
sound recording died in 2010, that
sound recording would be protected
under Federal law until the end of 2080.
In the 1976 Copyright Act, Congress
made all unpublished works being
brought under Federal law subject to the
ordinary statutory term that the 1976
Act provided for copyrighted works: life
of the author plus 50 years (later
extended by the CTEA to life of the
author plus 70 years). However,
Congress was concerned that for some
works, applying the ordinary statutory
copyright terms would mean that
copyright protection would have
expired by the effective date of the 1976
Copyright Act, or would expire soon
thereafter. Congress decided that
removing subsisting common law rights
and substituting statutory rights for a
‘‘reasonable period’’ would be ‘‘fully in
harmony with the constitutional
requirements of due process.’’ H.R. Rep.
No. 94-1476, at 138–39 (1976).
Accordingly, the 1976 Copyright Act
included a provision that gave all
unpublished works, no matter how old,
a minimum period of protection of 25
years, until December 31, 2002. 17
U.S.C. 303. If those works were
published by that date, they would get
an additional term of protection of 25
years, to December 31, 2027 (later
extended by the CTEA to 2047).
If pre-1972 sound recordings were
brought under Federal copyright law,
should a similar provision be made for
those recordings that otherwise would
have little or no opportunity for Federal
copyright protection? If so, what would
be a ‘‘reasonable period’’ in this context,
and why? If not, would the legislation
encounter constitutional problems (e.g.,
due process, or Takings Clause issues)?
Increasing the Availability of Pre-1972
Sound Recordings
23. If the requirements of due process
make necessary some minimum period
of protection, are there exceptions that
might be adopted to make those
recordings that have no commercial
value available for use sooner? For
example, would it be worthwhile to
consider amending 17 U.S.C. 108(h) to
allow broader use on the terms of that
provision throughout any such
‘‘minimum period?’’ Do libraries and
archives rely on this provision to make
older copyrighted works available? If
not, why not?
24. Are there other ways to enhance
the ability to use pre-1972 sound
recordings during any minimum term,
should one be deemed necessary?
25. How might rights holders be
encouraged to make existing recordings
available on the market? Would a
provision like that in section 303—an
extended period of protection
contingent upon publication—be likely
to encourage rights holders to make
these works publicly available?
Partial Incorporation
26. The possibility of bringing pre-
1972 sound recordings under Federal
law only for limited purposes has been
raised. For example, some stakeholders
seek to ensure that whether or not pre-
1972 sound recordings receive Federal
copyright protection, they are in any
event subject to the fair use doctrine and
the library and archives exceptions
found in sections 107 and 108,
respectively, of the Copyright Act.
Others would like to subject pre-1972
sound recordings to the section 114
statutory license, but otherwise keep
them within the protection of State law
rather than Federal copyright law.
Is it legally possible to bring sound
recordings under Federal law for such
limited purposes? For example, can
(and should) there be a Federal
exception (such as fair use) without an
underlying Federal right? Can (and
should) works that do not enjoy Federal
statutory copyright protection
nevertheless be subject to statutory
licensing under the Federal copyright
law? What would be the advantages or
disadvantages of such proposals?
Miscellaneous Questions
27. Could the incorporation of pre-
1972 sound recordings potentially affect
in any way the rights in the underlying
works (such as musical works); and if
so, in what way?
28. What other uses of pre-1972
recordings, besides preservation and
access activities by libraries and other
cultural institutions, might be affected
by a change from State to Federal
protection? For example, to what extent
are people currently engaging in
commercial or noncommercial use or
exploitation of pre-1972 sound
recordings, without authorization from
the rights holder, in reliance on the
current status of protection under State
law? If so, in what way? Would
protecting pre-1972 sound recordings
under Federal law affect the ability to
engage in such activities?
29. To the extent not addressed in
response to the preceding question, to
what extent are people currently
refraining from making use, commercial
or noncommercial, of pre-1972 sound
recordings in view of the current status
of protection under State law; and if so,
in what way?
30. Are there other factors relevant to
a determination of whether pre-1972
sound recordings should be brought
under Federal law, and how that could
be accomplished?
Dated: October 29, 2010.
David O. Carson,
General Counsel.
[FR Doc. 2010–27775 Filed 11–2–10; 8:45 am]
BILLING CODE P
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION
Records Schedules; Availability and
Request for Comments
AGENCY
: National Archives and Records
Administration (NARA).
ACTION
: Notice of availability of
proposed records schedules; request for
comments.
SUMMARY
: The National Archives and
Records Administration (NARA)
publishes notice at least once monthly
of certain Federal agency requests for
records disposition authority (records
schedules). Once approved by NARA,
records schedules provide mandatory
instructions on what happens to records
when no longer needed for current
Government business. They authorize
the preservation of records of
continuing value in the National
Archives of the United States and the
destruction, after a specified period, of
records lacking administrative, legal,
research, or other value. Notice is
published for records schedules in
which agencies propose to destroy
records not previously authorized for
disposal or reduce the retention period
of records already authorized for
disposal. NARA invites public
comments on such records schedules, as
required by 44 U.S.C. 3303a(a).
DATES
: Requests for copies must be
received in writing on or before
December 3, 2010. Once the appraisal of
the records is completed, NARA will
send a copy of the schedule. NARA staff
usually prepare appraisal
memorandums that contain additional
information concerning the records
covered by a proposed schedule. These,
too, may be requested and will be
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appendix b Supplemental public notice
74749
Federal Register / Vol. 75, No. 230 / Wednesday, December 1, 2010 / Notices
Permanent Membership
Chair—Deputy Secretary—Seth D.
Harris
Vice-Chair—Assistant Secretary for
Administration and Management—T.
Michael Kerr
Executive Secretary—Director,
Executive Resources—Crystal Scott
Alternate Vice-Chair—Director, Human
Resources Center—Eugenio (Gene)
Ochoa Sexton
Rotating Membership
ASP Kathleen E. Franks, Director,
Office of Regulatory and
Programmatic Policy—appointment
expires on 09/30/12
BLS John M. Galvin, Associate
Commissioner, Office of Employment
and Unemployment Statistics—
appointment expires on 09/30/2013
EBSA Sharon S. Watson, Director,
Office of Participant Assistance—
appointment expires on 9/30/12
EBSA Jonathan Kay, Regional
Administrator (New York)—
appointment expires on 9/30/13
ETA Grace A. Kilbane, Administrator,
Office of Workforce Investment—
appointment expires on 09/30/11
ILAB Marcia M. Eugenio, Director,
Office of Child Labor, Forced Labor
Human Trafficking—appointment
expires on 09/30/12
MSHA Maureen Walsh, Director,
Administration and Management—
appointment expires on 09/30/12
OASAM Charlotte A. Hayes, Deputy
Assistant Secretary for Policy—
appointment expires on 09/30/12
OASAM Milton A. Stewart, Director,
Business Operations Center—
appointment expires on 09/30/12
OASAM Ramon Suris-Fernandez,
Director, Civil Rights Center—
appointment expires on 09/30/11
OCFO Karen Tekleberhan, Deputy
Chief Financial Officer—appointment
expires on 09/30/2013
OFCCP Sandra S. Zeigler, Regional
Director (Chicago)—appointment
expires on 9/30/12
OLMS Stephen J. Willertz, Director,
Office of Enforcement and
International Union Audits—
appointment expires on 09/30/2012
OWCP Rachel P. Leiton, Director,
Energy Employees’ Occupational
Illness Compensation—appointment
expires on 09/30/11
SOL Katherine E. Bissell, Associate
Solicitor for Civil Rights and Labor
Management—appointment expires
on 09/30/11
SOL Michael D. Felsen, Regional
Solicitor, Boston—appointment
expires on 09/30/12
SOL Deborah Greenfield, Deputy
Solicitor—appointment expires on
9/30/12
SOL Jeffrey L. Nesvet, Associate
Solicitor for Federal Employees’ and
Energy Workers’ Compensation—
appointment expires on 09/30/13
VETS Ismael Ortiz, Jr., Deputy
Assistant Secretary—appointment
expires on 9/30/12
WHD Cynthia C Watson, Regional
Administrator (Dallas)—appointment
expires on 09/30/13
FOR FURTHER INFORMATION CONTACT
: Ms.
Crystal Scott, Director, Office of
Executive Resources, Room C5508, U.S.
Department of Labor, Frances Perkins
Building, 200 Constitution Ave., NW.,
Washington, DC 20210, telephone: (202)
693–7628.
Signed at Washington, DC, on 24th day of
November 2010.
Hilda L. Solis,
Secretary of Labor.
[FR Doc. 2010–30210 Filed 11–30–10; 8:45 am]
BILLING CODE 4510–23–P
LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2010–4]
Federal Copyright Protection of Sound
Recordings Fixed Before February 15,
1972
AGENCY
: Copyright Office, Library of
Congress.
ACTION
: Notice of inquiry: Extension of
comment period; extension of reply
comment period.
SUMMARY
: The Copyright Office of the
Library of Congress is extending the
time in which comments and reply
comments can be filed in response to its
Notice of Inquiry requesting public
input on the desirability and means of
bringing sound recordings fixed before
February 15, 1972, under Federal
jurisdiction.
DATES
: Initial written comments must be
received in the Office of the General
Counsel of the Copyright Office no later
than January 31, 2011. Reply comments
must be received in the Office of the
General Counsel of the Copyright Office
no later than March 2, 2011.
ADDRESSES
: The Copyright Office
strongly prefers that comments be
submitted electronically. A comment
page containing a comment form is
posted on the Copyright Office Web site
at http://www.copyright.gov/docs/
sound/comments/comment-submission-
index.html. The Web site interface
requires submitters to complete a form
specifying name and organization, as
applicable, and to upload comments as
an attachment via a browse button. To
meet accessibility standards, each
comment must be uploaded in a single
file in either the Adobe Portable
Document File (PDF) format that
contains searchable, accessible text (not
an image); Microsoft Word;
WordPerfect; Rich Text Format (RTF); or
ASCII text file format (not a scanned
document). The maximum file size is
6 megabytes (MB). The name of the
submitter and organization should
appear on both the form and the face of
the comments. All comments will be
posted on the Copyright Office Web site,
along with names and organizations.
If electronic submission of comments
is not feasible, comments may be
delivered in hard copy. If hand
delivered by a private party, an original
and five copies of a comment or reply
comment should be brought to the
Library of Congress, U.S. Copyright
Office, Room LM–401, James Madison
Building, 101 Independence Ave., SE.,
Washington, DC 20559, between
8:30 a.m. and 5 p.m. The envelope
should be addressed as follows: Office
of the General Counsel, U.S. Copyright
Office.
If delivered by a commercial courier,
an original and five copies of a comment
or reply comment must be delivered to
the Congressional Courier Acceptance
Site (‘‘CCAS’’) located at 2nd and D
Streets, SE., Washington, DC between
8:30 a.m. and 4 p.m. The envelope
should be addressed as follows: Office
of the General Counsel, U.S. Copyright
Office, LM–403, James Madison
Building, 101 Independence Avenue,
SE., Washington, DC 20559. Please note
that CCAS will not accept delivery by
means of overnight delivery services
such as Federal Express, United Parcel
Service or DHL.
If sent by mail (including overnight
delivery using U.S. Postal Service
Express Mail), an original and five
copies of a comment or reply comment
should be addressed to U.S. Copyright
Office, Copyright GC/I&R, P.O. Box
70400, Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT
:
David O. Carson, General Counsel, or
Chris Weston, Attorney Advisor.
Copyright GC/I&R, P.O. Box 70400,
Washington, DC 20024. Telephone:
(202) 707–8380. Telefax: (202) 707–
8366.
SUPPLEMENTARY INFORMATION
: To assist
in the preparation of its study on federal
protection for pre-1972 sound
recordings, the Office published a
Notice of Inquiry seeking comments on
many detailed questions regarding
various aspects of the study. See 75 FR
67777 (November 3, 2010). Initial
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74750
Federal Register / Vol. 75, No. 230 / Wednesday, December 1, 2010 / Notices
1
SGI is a form of sensitive, unclassified, security-
related information that the Commission has the
authority to designate and protect under Section
147 of the AEA.
comments were due to be filed by
December 20, 2010; reply comments
were due to be filed by January 19,
2011.
The Copyright Office has received a
request from the Recording Industry
Association of America to extend the
comment period to January 31, 2011, in
order to allow sufficient time to gather
relevant information from its member
companies and to provide the Office
with comprehensive comments. Given
the need for more factual data regarding
pre-1972 sound recordings, and the
complexity of the issues raised by the
Notice of Inquiry, the Office has decided
to extend the deadline for filing
comments by a period of 42 days,
making initial comments due by January
31, 2011. The period for filing reply
comments will be similarly extended,
making reply comments due by March
2, 2011.
Dated: November 24, 2010.
David O. Carson,
General Counsel.
[FR Doc. 2010–30213 Filed 11–30–10; 8:45 am]
BILLING CODE 1410–30–P
NUCLEAR REGULATORY
COMMISSION
[EA–10–152; Project No. 52–0001; NRC–
2010–0368]
In the Matter of Toshiba America
Nuclear Energy Corporation and All
Other Persons Who Seek or Obtain
Access to Safeguards Information
Described Herein; Order Imposing
Safeguards Information Protection
Requirements for Access to
Safeguards Information (Effective
Immediately)
I
On June 12, 2009, the U.S. Nuclear
Regulatory Commission (the
Commission or NRC) published a
rulemaking in the Federal Register (74
FR 28112), that requires applicants for
a variety of licensing activities,
including nuclear power plant
designers, to perform a design-specific
assessment of the effects of a large,
commercial aircraft impact and to
incorporate design features and
functional capabilities into the nuclear
power plant design to provide
additional inherent protection with
reduced operator actions. Section V of
the Federal Register notice contains
specific requirements for applicants for
new nuclear power reactors. To assist
designers in completing this assessment,
the Commission has decided to provide
the detailed aircraft impact
characteristics that reactor vendors and
architect/engineers who have the need
to know and who meet the NRC’s
requirements for the disclosure of such
information should use as reasonable
input in studies of the inherent
capabilities of their designs.
The NRC derived these characteristics
from agency analyses performed on
operating reactors to support, in part,
the development of a broadly effective
set of mitigation strategies to combat
fires and explosions from a spectrum of
hypothetical aircraft impacts. Although
the NRC did not select these detailed
characteristics as a basis for designing
new reactors, the staff is suggesting that
designers use them as a starting point
for aircraft impact assessments. As
stated in the rulemaking, the
Commission will specify, in a
safeguards information (SGI) guidance
document, the detailed aircraft impact
characteristics that should be used in a
required assessment of the new reactor
designs. The agency is working to
finalize the form and values of those
detailed characteristics. On July 10,
2009, the NRC issued Draft Regulatory
Guide (DG)–1176, ‘‘Guidance for the
Assessment of Beyond-Design-Basis
Aircraft Impacts,’’ to assist applicants in
the completion of the assessment. The
agency did not receive any comments
on DG–1176. The staff is currently
finalizing the regulatory guide. In
addition, the staff recognizes that no
national or international consensus has
been reached on the selection of
appropriate characteristics for such
analyses. Therefore, applicants should
consider the information preliminary
and subject to authorized stakeholder
comment. The detailed aircraft
characteristics that are the subject of
this Order are hereby designated as
SGI,
1
in accordance with Section 147 of
the Atomic Energy Act of 1954, as
amended (AEA).
On October 24, 2008, the NRC revised
Title 10 of the Code of Federal
Regulations (10 CFR) Part 73, § 73.21,
‘‘Protection of Safeguards Information:
Performance Requirements,’’ to include
applicants in the list of entities required
to protect SGI (73 FR 63546). The NRC
is issuing this Order to Toshiba America
Nuclear Energy Corporation (TANE) to
impose requirements for the protection
of SGI in addition to the requirements
in the revised 10 CFR 73.21. These
additional requirements include
nomination of a reviewing official,
restrictions on the storage of SGI, and
access to SGI by certain individuals.
To implement this Order, TANE must
nominate an individual, known as the
‘‘reviewing official,’’ who will review the
results of the Federal Bureau of
Investigation (FBI) criminal history
records check to make SGI access
determinations. The reviewing official
must be someone who seeks access to
SGI. Based on the results of the FBI
criminal history records check, the NRC
staff will determine whether this
individual may have access to SGI. If
the NRC determines that the individual
may not be granted access to SGI, the
enclosed Order prohibits that individual
from obtaining access to any SGI. Once
the NRC determines that the nominated
individual may have access to SGI, and
after TANE has completed the
background check on the reviewing
official and has determined that he or
she is trustworthy and reliable, and has
approved the individual as the
reviewing official, that reviewing
official, and only that reviewing official,
can make SGI access determinations for
other individuals who have been
identified by TANE as having a need to
know SGI and who have been
fingerprinted and have had a criminal
history records check in accordance
with this Order. The reviewing official
can only make SGI access
determinations for other individuals; he
or she cannot approve other individuals
to act as reviewing officials. If TANE
wishes to nominate a new or additional
reviewing official, the NRC must first
determine whether that individual may
have access to SGI before he or she can
act in the capacity of a reviewing
official.
The regulations at 10 CFR 73.59,
‘‘Relief from Fingerprinting,
Identification and Criminal History
Records Checks and Other Elements of
Background Checks for Designated
Categories of Individuals,’’ relieve
certain categories of individuals from
fingerprinting requirements. Those
individuals include: (1) Federal, State,
and local law enforcement personnel,
(2) Agreement State inspectors who
conduct security inspections on behalf
of the NRC, (3) members of Congress,
(4) employees of members of Congress
or congressional committees who have
undergone fingerprinting for a prior U.S.
Government criminal history check, and
(5) certain representatives of the
International Atomic Energy Agency or
certain foreign government
organizations. In addition, the NRC has
determined that individuals who have
had a Favorably-decided U.S.
Government criminal history check
within the last 5 years or individuals
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appendix c notice of public meeting
26769
Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices
Department of Justice, Washington, DC
20044–7611 or by faxing or e-mailing a
request to Tonia Fleetwood
([email protected]), fax no.
(202) 514–0097, phone confirmation
number (202) 514–1547. In requesting a
copy from the Consent Decree Library,
please enclose a check in the amount of
$32 for complete Consent Decree or
$15.75 for the Consent Decree without
the appendices (25 cents per page
reproduction cost) payable to the U.S.
Treasury or, if by e-mail or fax, forward
a check in that amount to the Consent
Decree Library at the stated address.
Robert E. Maher, Jr.,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
[FR Doc. 2011–11174 Filed 5–6–11; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF LABOR
Employment and Training
Administration
Workforce Investment Act of 1998
(WIA); Notice of Incentive Funding
Availability Based on Program Year
(PY) 2009 Performance
AGENCY
: Employment and Training
Administration, Labor.
ACTION
: Notice.
SUMMARY
: The Department of Labor, in
collaboration with the Department of
Education, announces that four states
are eligible to apply for Workforce
Investment Act (WIA) (Pub. L. 105–220,
29 U.S.C. 2801 et seq.) incentive grant
awards authorized by section 503 of the
WIA.
DATES
: The four eligible states must
submit their applications for incentive
funding to the Department of Labor by
June 23, 2011.
ADDRESSES
: Submit applications to the
Employment and Training
Administration, Office of Policy
Development and Research, Division of
Strategic Planning and Performance, 200
Constitution Avenue, NW., Room N–
5641, Washington, DC 20210, Attention:
Karen Staha and Luke Murren,
Telephone number: 202–693–3733 (this
is not a toll-free number). Fax: 202–693–
2766. E-mail: [email protected] and
[email protected]. Information may
also be found at the ETA Performance
Web site: http://www.doleta.gov/
performance.
SUPPLEMENTARY INFORMATION
: Four
states (see Appendix) qualify to receive
a share of the $10.2 million available for
incentive grant awards under WIA
section 503. These funds, which were
contributed by the Department of
Education from appropriations for the
Adult Education and Family Literacy
Act (AEFLA), are available for the
eligible states to use through June 30,
2013, to support innovative workforce
development and education activities
that are authorized under title IB
(Workforce Investment Systems) or Title
II (AEFLA) of WIA, or under the Carl D.
Perkins Career and Technical Education
Act of 2006 (Perkins IV), 20 U.S.C. 2301
et seq., as amended by Public Law 109–
270. In order to qualify for a grant
award, a state must have exceeded its
performance levels for WIA title IB and
adult education (AEFLA). (Due to the
lack of availability of PY 2009
performance data under the Carl D.
Perkins Vocational and Technical
Education Act of 1998 (Perkins III), the
Department of Labor and the
Department of Education did not
consider states’ performance levels
under the Perkins Act in determining
incentive grants eligibility.) The goals
included employment after training and
related services, retention in
employment, and improvements in
literacy levels, among other measures.
After review of the performance data
submitted by states to the Department of
Labor and to the Department of
Education, each Department determined
for its program(s) which states exceeded
their performance levels (the Appendix
at the bottom of this notice lists the
eligibility of each state by program).
These lists were compared, and states
that exceeded their performance levels
for both programs are eligible to apply
for and receive an incentive grant
award. The amount that each state is
eligible to receive was determined by
the Department of Labor and the
Department of Education, based on the
provisions in WIA section 503(c) (20
U.S.C. 9273(c)), and is proportional to
the total funding received by these
states for WIA Title IB and AEFLA
programs.
The states eligible to apply for
incentive grant awards and the amounts
they are eligible to receive are listed in
the following chart:
State
Amount of
award
1. Arizona ............................. $3,000,000
2. Minnesota ......................... 3,000,000
3. North Dakota .................... 1,210,964
4. Texas ................................ 3,000,000
Dated: May 2, 2011.
Jane Oates,
Assistant Secretary for Employment and
Training.
[FR Doc. 2011–11191 Filed 5–6–11; 8:45 am]
BILLING CODE 4510–FN–P
LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2010–4]
Federal Copyright Protection of Sound
Recordings Fixed Before February 15,
1972
AGENCY
: Copyright Office, Library of
Congress.
ACTION
: Notice of public meeting.
SUMMARY
: The Copyright Office will
host a public meeting to discuss the
desirability and means of bringing
sound recordings fixed before February
15, 1972 under Federal jurisdiction. The
meeting will provide a forum, in the
form of a roundtable discussion, for
interested parties to address the legal,
policy, and factual questions raised so
far regarding pre-1972 sound recordings.
It will take place on June 2 and 3, 2011
at the Copyright Office in Washington,
DC. In order to participate in the
meeting, interested parties should
submit a request via the Copyright
Office Web site.
DATES
: The public meeting will take
place on Thursday, June 2, 2011 from 9
a.m. to 5 p.m. and Friday, June 3, 2011
from 9 a.m. to 1:30 p.m. Requests for
participation must be received in the
Office of the General Counsel of the
Copyright Office no later than Monday,
May 16, 2011 at 5 p.m. E.D.T.
ADDRESSES
: The public meeting will
take place in the Copyright Office
Hearing Room, Room LM–408 of the
Madison Building of the Library of
Congress, 101 Independence Ave., SE.,
Washington, DC. The Copyright Office
strongly prefers that requests for
participation be submitted
electronically. A public meeting page
containing a request form is posted on
the Copyright Office Web site at http://
www.copyright.gov/docs/sound/.
Persons who are unable to submit a
request electronically should contact
Attorney-Advisor Chris Weston at 202–
707–8380.
FOR FURTHER INFORMATION CONTACT
:
David O. Carson, General Counsel, or
Chris Weston, Attorney-Advisor,
Copyright GC/I&R, P.O. Box 70400,
Washington, DC 20024. Telephone:
(202) 707–8380. Telefax: (202) 707–
8366.
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SUPPLEMENTARY INFORMATION
:
Background
Congress has directed the U.S.
Copyright Office to conduct a study on
the desirability and means of bringing
sound recordings fixed before February
15, 1972 under Federal jurisdiction.
Currently, such sound recordings are
protected under a patchwork of state
statutory and common laws from their
date of creation until 2067. The
legislation mandating this study states
that it is to:
cover the effect of federal coverage on the
preservation of such sound recordings, the
effect on public access to those recordings,
and the economic impact of federal coverage
on rights holders. The study is also to
examine the means for accomplishing such
coverage.
H.R. 1105, Public Law 111–8
[Legislative Text and Explanatory
Statement] 1769.
On November 3, 2010, the U.S.
Copyright Office published a Notice of
Inquiry seeking comments on the
question of bringing pre-1972 sound
recordings under Federal jurisdiction.
75 FR 67777 (November 3, 2010). The
notice provided background as to why
state law protection of pre-1972 sound
recordings has not been preempted,
unlike state law protection of other
kinds of potentially copyrightable
works. It also discussed the belief of
some in the library and archives
community that the absence of a Federal
protection scheme for sound recordings
has impeded the preservation and
public availability of these recordings.
In an attempt to understand the various
effects that federalizing protection for
pre-1972 sound recordings might have,
the notice posed 30 specific questions to
commenters regarding preservation and
access, economic impact, term of
protection, constitutional
considerations, and other aspects of
federalization.
The Copyright Office received 58
comments in response to its inquiry,
along with 231 copies of a form letter.
The Office subsequently received 17
reply comments. All comments, along
with the notice of inquiry, are available
at http://www.copyright.gov/docs/
sound/. The comments ran the gamut
from general policy arguments to
proposals for new legislative language
and, as anticipated, illuminate a variety
of experiences and perspectives. Some
comments raised new legal questions,
and others deepened the Office’s
understanding of the number and
variety of pre-1972 sound recordings at
issue. The Copyright Office is holding a
public meeting in order to permit
interested parties to present their views
and discuss areas of agreement and
disagreement through a roundtable
discussion.
Requests for Participation
The Office has divided up the topics
it wishes to discuss into nine sessions—
five on June 2, 2011 and four on June
3, 2011—and briefly describes them
below. These descriptions only note the
major issues for each session and do not
necessarily list every subject
appropriate for discussion.
Day 1, Session 1—Assessing the
Landscape: What are the legal and
cultural difficulties—as well as
benefits—attributable to state law
protection of pre-1972 sound
recordings?
Day 1, Session 2—Availability of Pre-
1972 Sound Recordings: What is the
true extent of public availability of pre-
1972 sound recordings? In relation to
the overall availability of such
recordings, how significant are rights-
holder reissue programs and recent
donations to the Library of Congress?
Day 1, Session 3—Effects of
Federalization on Preservation, Access,
and Value: What benefits would
federalization have with respect to
preservation of and public access to pre-
1972 sound recordings? Are those
benefits quantifiable (i.e., in economic
or cultural terms)? How would
federalization affect the economic and
cultural value of pre-1972 sound
recordings? Are such effects
quantifiable?
Day 1, Session 4—Effects of
Federalization on Ownership and
Business Expectations: What effects
would federalization have with respect
to ownership status, publication status,
contracts, termination rights,
registration requirements, and other
business aspects of pre-1972 sound
recordings? To what extent would these
results depend on the manner in which
federalization might be effected?
Day 1, Session 5—Effects of
Federalization on Statutory Licensing:
As a matter of logic, policy, and law,
should pre-1972 sound recordings be
eligible for the section 114 statutory
license? Can and should they be subject
to the section 114 statutory license if
they are not otherwise brought into the
Federal statutory scheme?
Day 2, Session 1—Term of Protection:
Assuming that copyright protection for
pre-1972 sound recordings is
federalized, what are the best options
for the term of protection of federalized
pre-1972 sound recordings? Should pre-
1923 recordings be considered
separately? What about unpublished
recordings? If federalized pre-1972
sound recordings are given shorter
terms than they had under state law,
should term extensions be offered as an
incentive to rights-holders who make
their recordings publicly available
within a specified period of time?
Day 2, Session 2—Constitutional
Considerations: Is it appropriate to grant
Federal copyright protection to works
already created, fixed, and in some
cases published? Are there
circumstances under which
federalization of pre-1972 sound
recordings would effect a ‘‘taking’’ under
the Fifth Amendment? If so, how could
this be addressed in the legislation?
Day 2, Session 3—Alternatives to
Federalization: What alternatives to
federalization, if any, should be
considered and why?
Day 2, Session 4—Summing Up: In
light of this public meeting and of the
comments received, please sum up your
views on (1) whether pre-1972 sound
recordings should be brought within the
protection of Federal copyright law and
(2) in the case of federalization, what
adaptations to existing law would be
necessary or advisable.
Requests to participate should be
submitted online at http://
www.copyright.gov/docs/sound/. The
online form asks for the requestor’s
name, organization, title, postal mailing
address, telephone number, fax number,
and an e-mail address, although not all
of the information is required. The
requestor should also indicate, in order
of preference, the sessions in which the
requestor wishes to participate.
Depending upon the level of interest,
the Copyright Office may not be able to
seat every participant in every session
he or she requests, so it is helpful to
know which topics are most important
to each participant. In addition, please
note that while an organization may
bring multiple representatives, only one
person per organization may participate
in a particular session. A different
person from the same organization may,
of course, participate in another session.
Requestors who have already
submitted a comment, or who will be
representing an organization that has
submitted a comment, are asked to
identify their comments on the request
form. Requestors who have not
submitted comments should include a
brief summary of their views on the
topics they wish to discuss, either
directly on the request form or as an
attachment. To meet accessibility
standards, all attachments must be
uploaded in either the Adobe Portable
Document File (PDF) format that
contains searchable, accessible text (not
an image); Microsoft Word;
WordPerfect; Rich Text Format (RTF); or
ASCII text file format (not a scanned
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document). The name of the submitter
and organization (if any) should appear
on both the form and the face of any
attachments.
Nonparticipants who wish to attend
and observe the discussion should note
that seating is limited and, for
nonparticipants, will be available on a
first come, first served basis.
Dated: May 4, 2011.
Maria A. Pallante,
Acting Register of Copyrights.
[FR Doc. 2011–11224 Filed 5–6–11; 8:45 am]
BILLING CODE 1410–30–P
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
[Notice (11–045)]
NASA Advisory Council; Task Group
of the Science Committee; Meeting
AGENCY
: National Aeronautics and
Space Administration.
ACTION
: Notice of meeting.
SUMMARY
: In accordance with the
Federal Advisory Committee Act, Public
Law 92–463, as amended, the National
Aeronautics and Space Administration
(NASA) announces a meeting of the
Task Group of the NASA Advisory
Council (NAC) Science Committee. This
Task Group reports to the Science
Committee of the NAC. The Meeting
will be held for the purpose of soliciting
from the scientific community and other
persons scientific and technical
information relevant to program
planning.
DATES
: Wednesday, May 25, 2 p.m. to 4
p.m., Local Time.
ADDRESSES
: This meeting will take place
telephonically and by WebEx. Any
interested person may call the USA toll
free conference call number 800–369–
3194, pass code TAGAGMAY25, to
participate in this meeting by telephone.
The WebEx link is https://
nasa.webex.com/, meeting number 993
198 285, and password tagag_May25.
FOR FURTHER INFORMATION CONTACT
: Ms.
Marian Norris, Science Mission
Directorate, NASA Headquarters,
Washington, DC 20546, (202) 358–4452,
fax (202) 358–4118, or
SUPPLEMENTARY INFORMATION
: The
agenda for the meeting includes the
following topic:
—Organizing Analysis Groups to Serve
the Needs of More than One NASA
Mission Directorate.
It is imperative that the meeting be
held on these dates to accommodate the
scheduling priorities of the key
participants.
Dated: May 2, 2011.
P. Diane Rausch,
Advisory Committee Management Officer,
National Aeronautics and Space
Administration.
[FR Doc. 2011–11163 Filed 5–6–11; 8:45 am]
BILLING CODE 7510–13–P
NUCLEAR REGULATORY
COMMISSION
[Docket Nos. 50–250 and 50–251; NRC–
2011–0094]
Florida Power & Light Company;
Turkey Point, Units 3 and 4; Notice of
Consideration of Issuance of
Amendment to Facility Operating
License, and Opportunity for a Hearing
and Order Imposing Procedures for
Document Access to Sensitive
Unclassified Non-Safeguards
Information
AGENCY
: Nuclear Regulatory
Commission.
ACTION
: Notice of license amendment
request, opportunity to comment,
opportunity to request a hearing, and
Commission order.
DATES
: A request for a hearing must be
filed by July 8, 2011. Any potential
party as defined in Title 10 of the Code
of Federal Regulations (10 CFR) 2.4 who
believes access to Sensitive Unclassified
Non-Safeguards Information (SUNSI) is
necessary to respond to this notice must
request document access by May 19,
2011.
ADDRESSES
: Please include Docket ID
NRC–2011–0094 in the subject line of
your comments. Comments submitted in
writing or in electronic form will be
posted on the NRC Web site and on the
Federal rulemaking Web site http://
www.regulations.gov. Because your
comments will not be edited to remove
any identifying or contact information,
the NRC cautions you against including
any information in your submission that
you do not want to be publicly
disclosed.
The NRC requests that any party
soliciting or aggregating comments
received from other persons for
submission to the NRC inform those
persons that the NRC will not edit their
comments to remove any identifying or
contact information, and therefore, they
should not include any information in
their comments that they do not want
publicly disclosed.
You may submit comments by any of
the following methods:
• Federal Rulemaking Web site: Go to
http://www.regulations.gov and search
for documents filed under Docket ID
NRC–2011–0094. Address questions
about NRC dockets to Carol Gallagher
301–492–3668; e-mail
You can access publicly available
documents related to this notice using
the following methods:
• Mail comments to: Cindy Bladey,
Chief, Rules, Announcements, and
Directives Branch (RADB), Office of
Administration, Mail Stop: TWB–05–
B01M, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001.
• NRC’s Public Document Room
(PDR): The public may examine, and
have copied for a fee, publicly available
documents at the NRC’s PDR, Room O1–
F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland
20852.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): Publicly available documents
created or received at the NRC are
available online in the NRC’s Library at
http://www.nrc.gov/reading-rm/
adams.html. From this page, the public
can gain entry into ADAMS, which
provides text and image files of NRC’s
public documents. If you do not have
access to ADAMS or if there are
problems in accessing the documents
located in ADAMS, contact the NRC’s
PDR reference staff at 1–800–397–4209,
301–415–4737, or by e-mail to
[email protected]. The application
for amendment, dated October 21, 2010,
contains proprietary information and,
accordingly, those portions are being
withheld from public disclosure. A
redacted version of the application for
amendment, dated December 14, 2010,
is available electronically under
ADAMS Accession No. ML103560167.
• Federal Rulemaking Web site:
Public comments and supporting
materials related to this notice can be
found at http://www.regulations.gov by
searching on Docket ID: NRC–2011–
0094.
FOR FURTHER INFORMATION CONTACT
:
Jason C. Paige, Project Manager, Plant
Licensing Branch II–2, Division of
Operating Reactor Licensing, Office of
Nuclear Reactor Regulation, U.S.
Nuclear Regulatory Commission,
Washington, DC 20555. Telephone:
301–415–5888; fax number: 301–415–
2102; e-mail: [email protected].
SUPPLEMENTARY INFORMATION
:
I. Introduction
The U.S. Nuclear Regulatory
Commission (NRC or the Commission)
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appendix d liSt of partieS Submitting initial commentS
APPENDIX D: INITIAL COMMENTS
Document Organization/Comment
1 Michael Fitzgerald
2 Bill Hebden
3 Courtney Chartier
4 Phil Gries
5 R. Fay
6 Susan Hoffius
7a Starr Gennett Foundation
7b David J. Fulton, Starr-Gennett Foundation
8 Aaron A. Fox
9 Al Schlachtmeyer
10 Alison Stankrauff
11 Tanya Merchant
12 Benjamin Irwin
13 Darren Walters
14 Jean Dickson
15 Zoe Waldron
16 Deborah Campana
17 Dale Cockrell
18 Jodi Allison-Bunnell
19 Michael Burch
20 Lynn Hooker
21 Cristobal Diaz Ayala
22 Cynthia Varady
23 Henry Sapoznik
24 Peggy Davis
25 Sherry L. Mayrent
26 Abigail O. Garnett
27 Brian Lee Corber
28 Doug Pomeroy
29 Mark Slobin
30 Demetrio Wazar
31 Geoff Canyon
32 Louis Zell
33 Julie King
34 Max Cantor
35 Nathan Lambson
36 Maurice Saylor
37 Robert C. Lancefield
38 Nicola Battista
39 Helen R. Tibbo, Society of American Archivists
40 Rachel Evangeline Barham
41 Thad E. Garrett
42 Tim Brooks, Association of Recorded Sound Collections
43 Winston Barham
44 Eric Harbeson, Music Library Association
45 K. Matthew Dames, Syracuse University
46 Kenneth Crews
47 Lizabeth A. Wilson, University of Washington Libraries
48 Patrick Feaster
49 Patrick Loughney, Library of Congress
50 Randy Silverman & Alison Mower, University of Utah
51 Recording Industry Association of America and American Association of
Independent Music
52 Stephanie M. Roach
53 Steven R. Englund, Sound Exchange, Inc.
54 Abigail Phillips, Electronic Freedom Foundation
55 Joel Brian Kellum - Comment 1 and Comment 2
56 Alex Cummings
57 Grooveshark form letter
58 Steven Smolian
appendix e liSt of partieS Submitting reply commentS
APPENDIX E: REPLY COMMENTS
Document Organization/Comment
1 James A. Armstrong
2 Ivan Hoffman
3 Ryland Hawkins, Author Services, Inc.
4 Eric N. Burns, Conversation in Black
5 Eric D. Leaner, VAPAC Music Publishing, Inc.
6 Helen R. Tibbo, Society of American Archivists
7 The Association of Research Libraries and the American Library Association
8 Eric Harbeson, The Music Library Association (MLA)
9 Tim Brooks, Association for Recorded Sound Collections
10 Patrick Loughney, The Library of Congress
11 Future of Music Coalition
12 David Oxenford & Jane Mago, National Association of Broadcasters
13 Elizabeth Townsend Gard & the 2011 Copyright Class at Tulane University Law
School
14 Recording Industry Association of America and American Association of
Independent Music
15 Bruce Rich & Cynthia Greer, Sirius XM Radio, Inc.
16 J. Gregg Gautereaux, Artist's Reprieve LLC
17 Joel Kellum
appendix f liSt of meeting participantS
APPENDIX F: PUBLIC MEETING PARTICIPANTS
Gil Aronow, Sony Music Entertainment
Richard Bengloff, American Association of Independent Music
Tim Brooks, Association for Recorded Sound Collections
Sam Brylawski, Society for American Music
Peggy Bulger, American Folklife Center, Library of Congress
Brandon Butler, Association of Research Libraries
Dwayne Buttler, University Libraries, University of Louisville
Susan Chertkof, Recording Industry Assn of America
Michael DeSanctis, SoundExchange, Inc.
Elizabeth Townsend Gard, Tulane University Law School
Eric Harbeson, Music Library Association
Ivan Hoffman, attorney
Adam Holofcener, Future of Music Coalition
Tomas Lipinski, School of Library & Information Science, Indiana University
Patrick Loughney, Library of Congress
Steve Marks, Recording Industry Association of America
David Oxenford, National Association of Broadcasters
Jennifer Pariser, Recording Industry Association of America
Jay Rosenthal, National Music Publishers Association
Charles Sanders, Songwriters Guild of America
Eric Schwartz, Recording Industry Association of America
