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By Anandashankar Mazumdar
Congress should enact legislation to bring rights surrounding sound recordings made before 1972 under the aegis of the federal copyright law, according to a lengthy report issued at year's end by the Copyright Office.
Federalization of pre-1972 sound recordings would “improve the certainty and consistency of copyright, will likely encourage more preservation and access activities, and should not result in any appreciable harm to the economic interests of right holders,” the report said.
Sound recordings did not come within the ambit of federal copyright law until 1972. Thus, recordings made before that are subject to a patchwork of state laws, including criminal laws, as well as anti-bootlegging, right of publicity, and other civil laws.
Congress Initiates Review of Copyright Status
In 2009, when Congress adopted omnibus appropriations legislation, Pub. L. No. 111-8, it directed the register of copyrights to conduct a study on pre-1972 recordings.
In response, the Library of Congress issued a report concluding that in most cases, it is unlikely that libraries that copy or stream unpublished pre-1972 sound recordings in their holdings for preservation and scholarship would be liable under federal or state law (61 PTD, 4/2/09). However, the report cautioned that there was doubt on the question, especially since some state laws would continue to govern such works until 2067.
In November 2010, the Copyright Office initiated an inquiry and sought comments on how extending federal protection to pre-1972 sound recordings might affect preservation, public access, and the economic interests of those who held rights in such works.
The agency then scheduled public meetings to discuss the issues with interested parties. The meetings revealed a good deal of disagreement between rights holders and librarians on the question of federalization of pre-1972 sound recordings (112 PTD, 6/10/11).
Representatives of libraries and archives expressed their desire for a more uniform, more predictable, and less complicated regime for use of older sound recordings. However, copyright owners appeared comfortable with the current regime and were skeptical about how federalizing this class of works would affect their legal and commercial arrangements, as well as preservationists' activities that might make works available on the internet without authorization.
In September, Rep. Jared S. Polis (D-Colo.) introduced the Sound Recording Simplification Act (H.R. 2933), seeking to implement federalization of pre-1972 sound recordings (183 PTD, 9/21/11). A two-year strategic plan issued by the Copyright Office in October also listed federalization of such works among the agency's priorities.
The December report by the Copyright Office, amounting to nearly 200 pages, concluded that public and private interests weigh in favor of federalization. Among the legislative recommendations included were:
• The owner under state law at the moment before federalization should be designated as the initial owner under federal law.
• Termination rights should be extended to authors only with regard to transfers executed after federalization; transfers made under state law prior to that date would not be subject to termination because of “serious issues with respect to retroactivity and takings.”
• Federalized works would have a term of protection of 95 years from publication or 120 years from fixation, if the work had not been published prior to federalization.
• During a “transition period” of six to 10 years, rights holders could make a work “available to the public at a reasonable price” and secure copyright protection up to 2067.
• For works published before 1923, the transition period should be only three years long and would secure protection for up to 25 years after federalization legislation was made effective.
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