by George M. Borkowski
It may come as a surprise to some that sound recordings – the actual performance of music and lyrics fixed in a recording medium, as opposed to the underlying composition – were not protected by federal copyright law until 1972 – and then only prospectively. The Copyright Office has now recommended that the Copyright Act be amended to encompass such sound recordings.
The reasons for the exclusion of sound recordings from the Copyright Act until 1972 are not entirely clear. To protect sound recordings created prior to 1972, record companies and other rights holders had to rely on a variety of state statutory and common law, which is specifically permitted by the Copyright Act. In California, for example, Civil Code section 980 grants the author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, exclusive ownership of the sound recording until February 15, 2047.
This situation obviously makes it more difficult for owners of pre-1972 sound recordings to protect their rights to those recordings. State laws that may offer some protection have been described as a patchwork of often vague and inconsistent rights. In addition, there is no presumption of validity that is accorded by a copyright registration from the Copyright Office, and chain of title thus may be more difficult to establish. This is a significant limitation, given that these are older works and include, for example, recordings of old radio broadcasts. It is also harder to have pre-1972 works that are being infringed on websites removed from those sites, given that the notice and takedown provisions of the DMCA (section 512 of the Copyright Act) apply only to copyrighted works. Also, statutory damages (and often attorneys’ fees) are not available to plaintiffs in infringement actions of pre-1972 works. Moreover, after February 15, 2067, the Copyright Act provides that all pre-1972 sound recordings will enter the public domain at once. Ironically, this gives pre-1972 sound recordings – which are not protected by copyright – a longer term of protection than many old works that are subject to the Copyright Act for which protection expires after a set number of years.
In response to this issue, in 2009, Congress instructed the Register of Copyrights to conduct a study as to the “desirability and means” of extending federal copyright protection to pre-1972 sound recordings. The Copyright Office took comments from numerous interested parties, including sound recording and other libraries, recording industry associations, broadcasters and satellite radio, music publishers, songwriters, universities, as well as other organizations and individuals. It also conducted public hearings and met with interested parties.
The study has now been completed, and the Copyright Office has released several recommendations based on its results. These recommendations include the following:
- Federal copyright protection should apply to sound recordings fixed before February 15, 1972. (Special provisions will be needed to address ownership issues, term of protection, and registration.)
- All rights and limitations of the Copyright Act applicable to post-1972 sound recordings would apply to pre-1972 recordings, including a public performance right for digital audio transmissions, fair use, DMCA safe harbor for Internet service providers, and the anti-circumvention provisions of the DMCA.
- Authors of pre-1972 sound recordings would have the right to terminate grants of transfers or licenses of copyright that are made after (but not before) the date federal protection starts.
- The term of protection for pre-1972 sound recordings would be 95 years from publication, but in no event beyond February 15, 2067.
- A transitional period would be instituted during which owners of pre-1972 sound recordings would be able to seek statutory damages and attorneys’ fees in infringement litigation notwithstanding the lack of registration of those works prior to filing suit.
There are several other recommendations as well. The full report can be accessed at http://www.copyright.gov/docs/sound/pre-72-report.pdf . If accepted, these recommendations should go a long way toward harmonizing copyright protection for all creative works of original authorship, regardless of the medium (and regardless of the reasons why pre-1972 sound recordings were treated differently to begin with).
Mr. Borkowski is a partner at Freeman Freeman & Smiley LLP. He represents major entertainment and technology clients at the intersection of content creation and protection with technology, focusing on the impact of technology on traditional intellectual property rights and business models. Mr. Borkowski has handled the full continuum of intellectual property, technology, and entertainment litigation, as well as anti-piracy and rights enforcement, and counseling. He can be reached at firstname.lastname@example.org