Federal Copyright Protection For Pre-1972 Sound Recordings - Free Download PDF

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u n i t e dstat e sco p y r i g h to f f i c eFederal Copyright Protection forPre-1972 Sound Recordingsa report of the register of copyrightsdecember 2011

House Appropriations Committee Print, Omnibus Appropriations Act, 2009(H.R. 1105; Public Law 111–8)DIVISION G—LEGISLATIVE BRANCH APPROPRIATIONS ACT, 2009, at 1769Pre-1972 Sound Recordings.--The Register of Copyrights is directed to conduct a study on thedesirability of and means for bringing sound recordings fixed before February 15, 1972, underfederal jurisdiction. The study is to cover the effect of federal coverage on the preservation ofsuch sound recordings, the effect on public access to those recordings, and the economic impactof federal coverage on rights holders. The study is also to examine the means for accomplishingsuch coverage. As part of this effort, the Register of Copyrights should publish notice of the studyand provide a period during which interested persons may submit comments. The Register ofCopyrights is to submit a report on the results of this study to the Committees on Appropriationsof the House and Senate no later than two years after the enactment of this Act. The report shouldinclude any recommendations that the Register considers appropriate.

Library of Congress Cataloging-in-Publication DataLibrary of Congress. Copyright Office.Federal copyright protection for pre-1972 sound recordings : a report of the Register ofCopyrights.pages ; cm"December 2011."Includes bibliographical references.1. Copyright--Sound recordings--United States. 2. Sound recordings--Preservation. I.Title.KF2996.L525 2011346.7304'82--dc232011285308All photographs appearing throughout this Report are courtesy of the Library of CongressPackard Campus for Audio Visual Conservation.

December 28, 2011Dear Mr. President:On behalf of the United States Copyright Office, I am pleased to deliver this Report toCongress, 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 bringingsound recordings fixed before February 15, 1972, under federal jurisdiction, with considerationgiven to the effect of federal coverage on the preservation of such sound recordings, the effect onpublic 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, soundrecordings fixed on or after February 15, 1972 are protected under federal copyright law, butrecordings 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 soundrecordings fixed before February 15, 1972. It proposes special provisions to address issues suchas copyright ownership, term of protection, termination of transfers and copyright registration.In reaching the recommendations contained in the Report, the Copyright Office engagedwith many stakeholders, including representatives of libraries and archives, the recordingindustry, performers and musicians, the broadcast, cable and satellite industries, and otherinterested parties.The Report is also available on the Copyright Office website y,Maria A. PallanteRegister of CopyrightsEnclosureThe Honorable Joseph BidenPresidentUnited States SenateWashington, DC 20510

December 28, 2011Dear Speaker Boehner:On behalf of the United States Copyright Office, I am pleased to deliver this Report toCongress, 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 bringingsound recordings fixed before February 15, 1972, under federal jurisdiction, with considerationgiven to the effect of federal coverage on the preservation of such sound recordings, the effect onpublic 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, soundrecordings fixed on or after February 15, 1972 are protected under federal copyright law, butrecordings 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 soundrecordings fixed before February 15, 1972. It proposes special provisions to address issues suchas copyright ownership, term of protection, termination of transfers and copyright registration.In reaching the recommendations contained in the Report, the Copyright Office engagedwith many stakeholders, including representatives of libraries and archives, the recordingindustry, performers and musicians, the broadcast, cable and satellite industries, and otherinterested parties.The Report is also available on the Copyright Office website y,Maria A. PallanteRegister of CopyrightsEnclosureThe Honorable John BoehnerSpeaker of the Houseof RepresentativesWashington, DC 20515

ACKNOWLEDGMENTSThis Report was prepared under the auspices of the Office of General Counsel, U.S. Copyright Office, withsupport from the Office of Policy and International Affairs. It is the result of the sustained commitment andprofessional expertise of several people in these departments, especially David Carson, General Counsel, ChrisWeston, Attorney-Advisor, and Steve Ruwe, Attorney-Advisor.Special thanks go to June Besek, Executive Director of the Kernochan Center for Law, Media and the Artsat Columbia University School of Law. June, who has done extensive work on copyright and pre-1972 soundrecordings in the past, played a leading role on our team, providing valuable insights and background informationat the outset of the study and actively participating in the Office’s work throughout the study, including at theroundtable conducted in June 2011. She drafted significant sections of the Report and reviewed numerous draftsof the final Report.June, Chris and Steve were the principal authors of the Report. David oversaw the entire process andthe preparation of the Report, actively assisted by Chris. Associate Register for Policy and International AffairsMichele Woods and Deputy General Counsel Tanya Sandros played invaluable roles in providing substantiveand editorial comments on the Report. Senior Counsel for Policy and International Affairs Karyn TempleClaggett also offered editorial input and was an active participant at the roundtable. Attorney-Advisor ErikBertin reviewed and proofread the final draft. Christopher Reed, Senior Advisor to the Register, provided bothpolicy and production assistance. Many thanks to legal interns Jenni Wiser and Emily Zandy for their researchefforts in reviewing and updating the survey of state criminal antipiracy statutes.Finally, I would like to recognize David Christopher and his staff in the Information and RecordsDivision of the Copyright Office, including George Thuronyi, Helen Hester-Ossa, Teresa McCall and CeceliaRogers, for their assistance in producing the Report.Maria A. PallanteRegister of Copyrights

TABLE OF CONTENTSABBREVIATIONS . vEXECUTIVE SUMMARY .viiCHAPTER I: INTRODUCTION AND BACKGROUND . 1A. The Pre-1972 Sound Recordings Report .2B. The Pre-1972 Sound Recordings Issue 4CHAPTER II: LEGAL AND LEGISLATIVE HISTORY . 7A. Federal Copyright Law and Sound Recordings until 1972 . 7B. 1971 Sound Recording Amendment . 10C. 1976 Copyright Revision Act .13D. 1994 Uruguay Round Agreements Act . 17E. State Law Protection for Pre-1972 Sound Recordings .201. Criminal Record Piracy Statutes .20a. Examples of state criminal law statutes 21b. Summary of state criminal record piracy provisions 252. Civil Statutes 283. Non-Statutory Causes of Action .30a. Common-law copyright 30b. Unfair competition/misappropriation .35c. Conversion . 404. Right of Publicity .415. Variations among States with Respect to Civil Claims: Rights and Exceptions. 436. Availability of Punitive Damages for State Law Claims .467. Summary: Use of Pre-1972 Sound Recordings under State Law 47CHAPTER III: APPRECIATING THE CHALLENGES OF PRESERVATIONAND ACCESS.50A. The Nature Of Pre-1972 Sound Recordings .501. Commercial and Noncommercial Recordings .502. Published and Unpublished Works.523. Availability and Location .544. Recording Media and Deterioration Rates for Pre-1972 Sound Recordings .56B. Preservation of Pre-1972 Sound Recordings .591. Current Preservation Activities .60a. Libraries and archives .60b. Record companies .62c. Private collectors.63d. Radio stations .642. Preservation and the Law .64a. Federal Law .65b. State Law .68c. Risk Analysis.69C. Public Access to Pre-1972 Sound Recordings .701. Current Activities Providing Public Access .72a. Libraries and Archives .72b. Record Companies .74c. Private Collectors .75

d. Radio Stations .752. Provision of Public Access and the Law .75a. Federal Law .77b. State Law .79c. Risk Analysis .79CHAPTER IV: POLICY CONSIDERATIONS .81A. Certainty and Consistency in Copyright Law .821. Importance of Certainty and Consistency .822. The Impact of Federalization upon Certainty and Consistency in CopyrightLaw.85a. Users’ perspectives on the effect of a single set of federal exceptions .85b. Right holders’ perspectives on the move from state to federal law.87c. Application of the DMCA “Safe Harbor” of 17 U.S.C. § 512 .89B. Preservation .901. Importance of Preservation .902. Impact of Federalization upon Library and Archives Preservation Activities .91a. Likelihood of increased preservation .91b. Likelihood of decreased preservation, or no change in preservationactivities .93C. Public Access .951. Importance of Public Access.952. Impact of Federalization upon Library and Archives Public Access Activities.97a. Types of access expected .97b. Likelihood of increased public access.97c. Likelihood of decreased public access .100D. Economic Impact on Right Holders .1001. Value of Pre-1972 Sound Recordings .101a. Benefits and disadvantages of federal protection .102b. Effect of exclusive rights .103c. “Long tail” effect on commercial prospects of older recordings .1042. Settled Expectations in Business Transactions .105a. Existing contractual arrangements .106b. Ownership, including transfer, termination, and registration .107c. Potential for decrease in availability of pre-1972 sound recordings as aresult of business burdens .111E. Alternatives To Federalization .1111. Partial Federalization (e.g., only applying Sections 107, 108 and/or 114) .112a. Sections 107 and 108.112b. Section 114 . 1132. Limits on Remedies .1153. No Amendments to Federal Law, but Amendments to State Law Instead.1164. No Amendments to Federal Law, but Use Private Agreements Instead .118CHAPTER V: DESIRABILITY OF FEDERALIZATION .120A. Certainty and Consistency in Copyright Law .122B. Promotion of Preservation and Appropriate Public Access .124C. Avoiding Economic Harm to Right Holders .126D. Appropriate Application of Section 114 License and the “Safe Harbors” of17 U.S.C. § 512 and the Communications Decency Act .1281. Section 114 .129ii

2. Section 512 .1303. Application of the Communications Decency Act .133E. Alternatives to Federal Protection .135CHAPTER VI: MEANS OF BRINGING PRE-1972 SOUND RECORDINGSUNDER FEDERAL JURISDICTION.139A. Ownership .1391. Determining Ownership .140a. State vs. federal ownership rules .141b. Effect of rule in some states equating physical ownership of master withownership of all rights.146c. Termination.1462. Recommendation.147B. Term of Protection .1491. Current and Proposed Terms of Protection .150a. 50 years from publication .151b. 50 years from fixation.152c. 95 years from creation .153d. Expiration in 2067 .153e. Other alternatives .1542. Fifth Amendment Takings Claims .155a. Facial takings .156b. As-applied takings .1573. Recommendation.162C. Transition Period.1671. Length of Transition Period .1672. What Constitutes “Publicly Available” and “Notice Filed in the Office” .1683. Recommendation .169D. Registration. 1711. Stakeholder Concerns about Registration.1712. Recommendation .173CHAPTER VII: RECOMMENDATIONS .175APPENDIX A: NOTICE OF INQUIRYAPPENDIX B: NOTICE OF INQUIRY – EXTENSION OF DEADLINEAPPENDIX C: NOTICE OF PUBLIC MEETINGAPPENDIX D: COMMENTERSAPPENDIX E: REPLY COMMENTERSAPPENDIX F: PUBLIC MEETING PARTICIPANTSiii

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ABBREVIATIONSA2IMAmerican Association of Independent MusicALAAmerican Library AssociationARLAssociation of Research LibrariesARSCAssociation of Recorded Sound CollectionsCDACommunications Decency ActEFFElectronic Frontier FoundationFMCFuture of Music CoalitionLOCLibrary of CongressMLAMusic Library AssociationNABNational Association of BroadcastersNMPAN

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.