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ARSCLIST  December 2011

ARSCLIST December 2011

Subject:

USCO Report on Pre-1972 Sound Recordings

From:

"Leggett, Stephen C" <[log in to unmask]>

Reply-To:

Association for Recorded Sound Discussion List <[log in to unmask]>

Date:

Thu, 29 Dec 2011 10:04:10 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (1 lines)

Executive Summary
"Here are the key points and legislative recommendations in the Report:
 The Copyright Office recommends that federal copyright protection should apply to
sound recordings fixed before February 15, 1972, with special provisions to address
ownership issues, term of protection, and registration. This will improve the certainty
and consistency of copyright law, will likely encourage more preservation and access
activities, and should not result in any appreciable harm to the economic interests of right
holders.
 Federal copyright protection for pre-1972 sound recordings means that all of the rights
and limitations of Title 17 of the U.S. Code applicable to post-1972 sound recordings
would apply, including section 106(6) (public performance right for digital audio
transmissions), section 107 (fair use), section 108 (certain reproduction and distribution
by libraries and archives), section 110 (exemption for certain performances and displays),
section 111 (statutory license for cable retransmissions of primary transmissions), section
112 (ephemeral recordings by broadcasters and transmitting organizations), section 114
(statutory license for certain transmissions and exemptions for certain other
transmissions), section 512 (safe harbor for Internet service providers), Chapter 10
(digital audio recording devices), and Chapter 12 (copyright protection and management
systems), as well as any future applicable rights and limitations (e.g., orphan works) that
Congress may choose to enact.
 The initial owner(s) of the federal copyright in a pre-1972 sound recording should be the
person(s) who own(s) the copyright under applicable state law at the moment before the
legislation federalizing protection goes into effect.
 Section 203 of the Copyright Act should be amended to provide that authors of pre-1972
sound recordings are entitled to terminate grants of transfers or licenses of copyright that
are made on or after the date federal protection commences. However, termination of
pre-federalization grants made under state law prior to federalization presents serious
issues with respect to retroactivity and takings, so the Office does not recommend
providing termination rights for grants made prior to federalization of protection.
 The term of protection for sound recordings fixed prior to February 15, 1972, should be
95 years from publication (with “publication” as defined in section 101) or, if the work
had not been published prior to the effective date of legislation federalizing protection,
120 years from fixation. However,
o In no case would protection continue past February 15, 2067, and
o In cases where the foregoing terms would expire before 2067, a right holder may
take the action described below to obtain a longer term.
 For pre-1972 sound recordings other than those published before 1923, a transition period
lasting between six and ten years from enactment of federal protection should be
established, during which a right holder may make a pre-1972 sound recording available
to the public and file a notice with the Copyright Office confirming availability at a
reasonable price and stating the owner’s intent to secure protection until 2067. If a right
holder does this, the term of protection of the sound recording will not expire until 2067,
x
provided that the recording remains publicly available at a reasonable price during its
extended term of protection.
 For sound recordings published before 1923, a transition period lasting three years from
enactment of federal protection should be established, during which a right holder may
make a pre-1923 sound recording available to the public and file a notice with the
Copyright Office confirming availability at a reasonable price and stating the owner’s
intent to secure protection for 25 years after the date of enactment the legislation that
federalizes protection. If a right holder does this, the term of protection of the sound
recording will not expire until the end of the 25-year period, provided that the recording
remains publicly available at a reasonable price during its extended term of protection.
 Regardless of a right holder’s actions, all pre-1972 sound recordings should enjoy federal
protection at least until the end of the relevant transition period described above.
 Regarding the requirement of timely registration in order to recover statutory damages or
attorney’s fees in an infringement suit, a transitional period of between three and five
years should be established, during which right holders in pre-1972 sound recordings can
seek statutory damages and attorney’s fees notwithstanding the lack of registration prior
to filing suit.
 Adjustments should be made or at least considered with respect to certain other
provisions of the Copyright Act to take into account difficulties that owners of rights in
pre-1972 sound recordings may encounter. Among those provisions are: section 405
(notice of copyright: omission of notice on certain copies and phonorecords), section 406
(notice of copyright: error in name or date on certain copies and phonorecords), section
407 (deposit of copies or phonorecords for Library of Congress), section 410 (prima facie
weight of certificate of registration), and section 205 (regarding priority between
conflicting transfers recorded in the Copyright Office).

http://www.copyright.gov/docs/sound/pre-72-exec-summary.pdf


Report
http://www.copyright.gov/docs/sound/pre-72-report.pdf

Survey of State Criminal Laws
http://www.copyright.gov/docs/sound/20111212_survey_state_criminal_laws_%20ARL_%20CO_%20v2.pdf

State Law Texts
http://www.copyright.gov/docs/sound/20110705_state_law_texts.pdf

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