Copyright Office Publishes Report on Federal Copyright Protection for Pre-1972 Sound Recordings

The U.S. Copyright Office has issued its report on Federal Copyright Protection for Pre-1972 Sound Recordings, as required under the Omnibus Appropriations Act of 2009.

The report, prepared after receiving written and oral input from stakeholders, recommends that sound recordings made before February 15, 1972 be brought into the federal copyright regime.

“The Copyright Office is grateful for the opportunity to explore this issue and to assist Congress in addressing how best to preserve and offer appropriate access to these works that are such an important part of our cultural patrimony,” said Register of Copyrights Maria A. Pallante. “We believe that bringing pre-1972 sound recordings into the federal copyright system serves the interests of consistency and certainty, and will assist libraries and archives in carrying out their missions while also offering additional rights and protection for sound recording right holders.”

Although sound recordings were first given federal copyright protection in 1972, sound recordings made before February 15, 1972 remained protected under state law rather than under the federal copyright statute. As a result, there are a variety of legal regimes governing protection of pre-1972 sound recordings in the various states, and the scope of protection and of exceptions and limitations to that protection is unclear.

Current law provides that pre-1972 sound recordings may remain protected under state law until February 15, 2067. After that date they will enter the public domain.

- At the urging of sound recording archivists, Congress instructed the Copyright Office to conduct a study on the desirability of and means for bringing pre-1972 sound recordings into the federal copyright regime. Congress directed that study was 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 was also to examine the means for accomplishing such coverage.

- Bringing pre-1972 sound recordings into the federal copyright system completes the work Congress began in 1976 when it brought most works protected by state common law copyright into the federal statutory scheme.

- 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.

- The principal objection offered by certain right holders – that federalizing protection for pre-1972 sound recordings would cast a cloud over existing ownership of rights in those recordings – can be addressed 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.

- The term of protection for sound recordings fixed prior to February 15, 1972 should be 95 years from publication or, if the work had not been published prior to the effective date of legislation federalizing protection, 120 years from fixation.

However,

- In no case would protection continue past February 15, 2067, and

- In cases where the foregoing terms would expire before 2067, a right holder may obtain extended protection for any pre-1972 sound recording by making that recording available to the public at a reasonable price and, during a transition period of several years, notifying the Copyright Office of its intention to secure extended protection extended protection.

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