The United States Copyright Office has recommended that pre-1972 sound recordings should be protected by federal copyright law in its Report on Federal Copyright Protection for Pre-1972 Sound Recordings. Currently, these older sound recordings are protected by state laws under which copyright exceptions such as library and archival preservation and fair use are uncertain. This uncertainty leads to caution on the part of music librarians and archivists to actively preserve sound recordings– some in fragile or obsolete formats and extremely rare.
The American Library Association (ALA) and the Association of Research Libraries (ARL) argued in their comments to the Copyright Office that–while federalization of pre-1972 sound recordings would help clarify that library and archives are free to preserve sound recordings– an equally effective solution to the problem be supported. Since any legislative change to the copyright law is fraught with uncertainty, a simple clarification from the Copyright Office that fair use doctrine applies to state-protected works would be more definite.
The library associations concerns about federalization are two-fold. First, any attempt to amend the copyright law would involve negotiations with rights holders who would fight to narrow library exceptions. The primary copyright exception that would be affected by federalization is Section 108– the copyright exception that allows libraries and archives to make reproductions of protected works under certain conditions. This exception is essential to many library services including interlibrary loan, replacement and preservation. Previous attempts to reach consensus among stakeholders on changes to Section 108 have proven to be very controversial and far from successful as witnessed in the Section 108 Study Group undertaking.
Second, with federalization of pre-1972 sound recordings comes increased risk for librarians and archivists to be subject to copyright infringement remedies, including impoundment of copies and statutory damages of $750 to $30,000 per work infringed for registered works. This risk would have a particularly chilling effect on mass digitization efforts. Conversely, state law remedies are small in comparison.
The Copyright Office ultimately decided that benefits of federalization of pre-1972 sound recordings outweighed the problems and said that federalization conformed with the intent of Congress to unify all works under one federal law.
Whether Congress will act on the Copyright Office recommendations is unknown. But this seemingly minor course of action–protecting pre-sound recordings under federal law rather than state law–highlights the complexity of any legislative change to the copyright law. Not only are the end results of legislation indefinite, the effects of legislative change carry significant risk.
One very positive note – the Copyright Office said that “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.” (Report, p.136-137) This recognition of fair use at the state level will be valuable to music librarians and archivists going forward, regardless of what Congress ultimately decides regarding federalization.
A handy survey of state laws governing sound recording is also available in the report.