u n i t e d s t a t e s c o p y r i g h t o f f i c e

Federal Copyright Protection for 

Pre-1972 Sound Recordings

a report of the register of copyrights december 2011
House Appropriations Committee Print, Omnibus Appropriations Act, 2009 

 (H.R. 1105; Public Law 111–8) 

 DIVISION G—LEGISLATIVE BRANCH APPROPRIATIONS ACT, 2009, at 1769 

Pre-1972 Sound Recordings.--The Register of Copyrights is directed to conduct a study on the 

desirability of and means for bringing sound recordings fixed before February 15, 1972, under 

federal jurisdiction. The study is 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 is also to examine the means for accomplishing 

such coverage. As part of this effort, the Register of Copyrights should publish notice of the study 

and provide a period during which interested persons may submit comments. The Register of 

Copyrights is to submit a report on the results of this study to the Committees on Appropriations 

of the House and Senate no later than two years after the enactment of this Act. The report should 

include any recommendations that the Register considers appropriate. 
Library of Congress Cataloging-in-Publication Data 

Library of Congress. Copyright Office. 

Federal copyright protection for pre-1972 sound recordings : a report of the Register of 

Copyrights. 

pages ; cm 

"December 2011." 

Includes bibliographical references. 

1. Copyright--Sound recordings--United States. 2. Sound recordings--Preservation. I. 

Title. 

KF2996.L525 2011 

346.7304'82--dc23 

 2011285308 

All photographs appearing throughout this Report are courtesy of the Library of Congress 

Packard Campus for Audio Visual Conservation.
 

December 28, 2011 

Dear Mr. President: 

On behalf of the United States Copyright Office, I am pleased to deliver this Report to 

Congress, 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 bringing 

sound recordings fixed before February 15, 1972, under federal jurisdiction, with consideration 

given to 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. 

It also examines the means for accomplishing such coverage. Under current law, sound 

recordings fixed on or after February 15, 1972 are protected under federal copyright law, but 

recordings 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 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. 

In reaching the recommendations contained in the Report, the Copyright Office engaged 

with many stakeholders, including representatives of libraries and archives, the recording 

industry, performers and musicians, the broadcast, cable and satellite industries, and other 

interested parties. 

The Report is also available on the Copyright Office website at 

http://www.copyright.gov/docs/sound/. 

Respectfully, 

Maria A. Pallante 

Register of Copyrights 

Enclosure 

The Honorable Joseph Biden 

President 

United States Senate 

Washington, DC 20510 
Dear Speaker Boehner: 

On behalf of the United States Copyright Office, I am pleased to deliver this Report to 

Congress, 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 bringing 

sound recordings fixed before February 15, 1972, under federal jurisdiction, with consideration 

given to 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. 

It also examines the means for accomplishing such coverage. Under current law, sound 

recordings fixed on or after February 15, 1972 are protected under federal copyright law, but 

recordings 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 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. 

In reaching the recommendations contained in the Report, the Copyright Office engaged 

with many stakeholders, including representatives of libraries and archives, the recording 

industry, performers and musicians, the broadcast, cable and satellite industries, and other 

interested parties. 

The Report is also available on the Copyright Office website at 

http://www.copyright.gov/docs/sound/. 

Respectfully, 

Maria A. Pallante 

Register of Copyrights 

Enclosure 

The Honorable John Boehner 

Speaker of the House 

 of Representatives 

Washington, DC 20515 

December 28, 2011
ACKNOWLEDGMENTS 

This Report was prepared under the auspices of the Office of General Counsel, U.S. Copyright Office, with 

support from the Office of Policy and International Affairs. It is the result of the sustained commitment and 

professional expertise of several people in these departments, especially David Carson, General Counsel, Chris 

Weston, Attorney-Advisor, and Steve Ruwe, Attorney-Advisor. 

Special thanks go to June Besek, Executive Director of the Kernochan Center for Law, Media and the Arts 

at Columbia University School of Law. June, who has done extensive work on copyright and pre-1972 sound 

recordings in the past, played a leading role on our team, providing valuable insights and background information 

at the outset of the study and actively participating in the Office’s work throughout the study, including at the 

roundtable conducted in June 2011. She drafted significant sections of the Report and reviewed numerous drafts 

of the final Report. 

 June, Chris and Steve were the principal authors of the Report. David oversaw the entire process and 

the preparation of the Report, actively assisted by Chris. Associate Register for Policy and International Affairs 

Michele Woods and Deputy General Counsel Tanya Sandros played invaluable roles in providing substantive 

and editorial comments on the Report. Senior Counsel for Policy and International Affairs Karyn Temple 

Claggett also offered editorial input and was an active participant at the roundtable. Attorney-Advisor Erik 

Bertin reviewed and proofread the final draft. Christopher Reed, Senior Advisor to the Register, provided both 

policy and production assistance. Many thanks to legal interns Jenni Wiser and Emily Zandy for their research 

efforts 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 Records 

Division of the Copyright Office, including George Thuronyi, Helen Hester-Ossa, Teresa McCall and Cecelia 

Rogers, for their assistance in producing the Report. 

Maria A. Pallante 

Register of Copyrights 
TABLE OF CONTENTS 

ABBREVIATIONS........................................................................................... v

EXECUTIVE SUMMARY.................................................................................vii

CHAPTER I: INTRODUCTION AND BACKGROUND............................................ 1

A. The Pre-1972 Sound Recordings Report .....................................................2 

B. The Pre-1972 Sound Recordings Issue ...................................................... 4 

CHAPTER II: LEGAL AND LEGISLATIVE HISTORY...........................................7

A. Federal Copyright Law and Sound Recordings until 1972 ................................ 7 

B. 1971 Sound Recording Amendment ........................................................ 10 

C. 1976 Copyright Revision Act ................................................................13 

D. 1994 Uruguay Round Agreements Act .......................................................... 17 

E. State Law Protection for Pre-1972 Sound Recordings ....................................20 

1. Criminal Record Piracy Statutes ........................................................20 

 a. Examples of state criminal law statutes.............................................21 

 b. Summary of state criminal record piracy provisions..............................25 

2. Civil Statutes ..............................................................................28 

3. Non-Statutory Causes of Action ........................................................30 

 a. Common-law copyright ...............................................................30 

 b. Unfair competition/misappropriation ...............................................35 

 c. Conversion .............................................................................. 40 

4. Right of Publicity .........................................................................41 

5. Variations among States with Respect to Civil Claims: Rights and Exceptions..43 

6. Availability of Punitive Damages for State Law Claims ............................46 

7. Summary: Use of Pre-1972 Sound Recordings under State Law ..................47 

CHAPTER III: APPRECIATING THE CHALLENGES OF PRESERVATION 

 AND ACCESS.................................................................................................................50 

A. The Nature Of Pre-1972 Sound Recordings ..............................................................50 

1. Commercial and Noncommercial Recordings ........................................................50 

2. Published and Unpublished Works.........................................................................52 

3. Availability and Location ......................................................................................54 

4. Recording Media and Deterioration Rates for Pre-1972 Sound Recordings ..........56 

 B. Preservation of Pre-1972 Sound Recordings ...............................................................59 

1. Current Preservation Activities ..............................................................................60 

 a. Libraries and archives .....................................................................................60 

 b. Record companies............................................................................................62 

 c. Private collectors..............................................................................................63 

 d. Radio stations ..................................................................................................64 

2. Preservation and the Law .......................................................................................64 

 a. Federal Law .....................................................................................................65 

 b. State Law..........................................................................................................68 

 c. Risk Analysis.....................................................................................................69 

 C. Public Access to Pre-1972 Sound Recordings ...........................................................70 

1. Current Activities Providing Public Access ...........................................................72 

 a. Libraries and Archives ....................................................................................72 

 b. Record Companies ... ......................................................................................74 

 c. Private Collectors ............................................................................................75 
 d. Radio Stations .................................................................................................75 

2. Provision of Public Access and the Law ................................................................75 

 a. Federal Law .....................................................................................................77 

 b. State Law .........................................................................................................79 

 c. Risk Analysis ....................................................................................................79 

CHAPTER IV: POLICY CONSIDERATIONS ......................................................................81 

A. Certainty and Consistency in Copyright Law ............................................................82 

1. Importance of Certainty and Consistency ............................................................82 

2. The Impact of Federalization upon Certainty and Consistency in Copyright 

 Law.......................................................................................................................85 

 a. Users’ perspectives on the effect of a single set of federal exceptions.............85 

 b. Right holders’ perspectives on the move from state to federal law..................87 

 c. Application of the DMCA “Safe Harbor” of 17 U.S.C. § 512 ........................89 

B. Preservation ...............................................................................................................90 

1. Importance of Preservation .................................................................................90 

2. Impact of Federalization upon Library and Archives Preservation Activities .....91 

a. Likelihood of increased preservation ..............................................................91 

b. Likelihood of decreased preservation, or no change in preservation 

activities ........................................................................................................93 

C. Public Access .............................................................................................................95 

1. Importance of Public Access................................................................................95 

2. Impact of Federalization upon Library and Archives Public Access Activities...97 

 a. Types of access expected..................................................................................97 

 b. Likelihood of increased public access..............................................................97 

 c. Likelihood of decreased public access ...........................................................100 

 D. Economic Impact on Right Holders .......................................................................100 

1. Value of Pre-1972 Sound Recordings ...............................................................101 

 a. Benefits and disadvantages of federal protection ..........................................102 

 b. Effect of exclusive rights ................................................................................103 

 c. “Long tail” effect on commercial prospects of older recordings ..................104 

2. Settled Expectations in Business Transactions ..................................................105 

 a. Existing contractual arrangements ...............................................................106 

 b. Ownership, including transfer, termination, and registration .......................107 

c. Potential for decrease in availability of pre-1972 sound recordings as a 

result of business burdens ...........................................................................111 

E. Alternatives To Federalization .................................................................................111 

1. Partial Federalization (e.g., only applying Sections 107, 108 and/or 114) ........112 

 a. Sections 107 and 108.....................................................................................112 

 b. Section 114 .................................................................................. 113 

2. Limits on Remedies ...........................................................................................115 

3. No Amendments to Federal Law, but Amendments to State Law Instead.........116 

4. No Amendments to Federal Law, but Use Private Agreements Instead ...........118 

CHAPTER V: DESIRABILITY OF FEDERALIZATION ..................................................120 

A. Certainty and Consistency in Copyright Law ..........................................................122 

B. Promotion of Preservation and Appropriate Public Access .....................................124 

C. Avoiding Economic Harm to Right Holders ............................................................126 

D. Appropriate Application of Section 114 License and the “Safe Harbors” of 

 17 U.S.C. § 512 and the Communications Decency Act ..........................................128 

1. Section 114 .........................................................................................................129 

ii 
2. Section 512 ........................................................................................................130 

3. Application of the Communications Decency Act ............................................133 

E. Alternatives to Federal Protection ...........................................................................135 

CHAPTER VI: MEANS OF BRINGING PRE-1972 SOUND RECORDINGS 

 UNDER FEDERAL JURISDICTION.........................................................................139 

A. Ownership ................................................................................................................139 

1. Determining Ownership ....................................................................................140 

 a. State vs. federal ownership rules ...................................................................141 

 b. Effect of rule in some states equating physical ownership of master with 

 ownership of all rights....................................................................................146 

 c. Termination.....................................................................................................146 

 2. Recommendation................................................................................................147 

 B. Term of Protection ....................................................................................................149 

 1. Current and Proposed Terms of Protection ........................................................150 

 a. 50 years from publication...............................................................................151 

 b. 50 years from fixation.....................................................................................152 

 c. 95 years from creation ...................................................................................153 

 d. Expiration in 2067 .........................................................................................153 

 e. Other alternatives ...........................................................................................154 

 2. Fifth Amendment Takings Claims .....................................................................155 

 a. Facial takings ................................................................................................156 

 b. As-applied takings .........................................................................................157 

 3. Recommendation................................................................................................162 

 C. Transition Period........................................................................................................167 

 1. Length of Transition Period ...............................................................................167 

 2. What Constitutes “Publicly Available” and “Notice Filed in the Office”..........168 

 3. Recommendation ...............................................................................................169 

 D. Registration.. .................................................................................171 

 1. Stakeholder Concerns about Registration...........................................................171 

 2. Recommendation ...............................................................................................173 

CHAPTER VII: RECOMMENDATIONS .............................................................................175 

APPENDIX A: NOTICE OF INQUIRY 

APPENDIX B: NOTICE OF INQUIRY – EXTENSION OF DEADLINE 

APPENDIX C: NOTICE OF PUBLIC MEETING 

APPENDIX D: COMMENTERS 

APPENDIX E: REPLY COMMENTERS 

APPENDIX F: PUBLIC MEETING PARTICIPANTS 

iii
iv 
v

ABBREVIATIONS

A2IM American Association of Independent Music 

ALA American Library Association 

ARL Association of Research Libraries 

ARSC Association of Recorded Sound Collections 

CDA Communications Decency Act 

EFF Electronic Frontier Foundation 

FMC Future of Music Coalition 

LOC Library of Congress 

MLA Music Library Association 

NAB National Association of Broadcasters 

NMPA National Music Publishers Association 

NRPB National Recording Preservation Board 

RIAA Recording Industry Association of America 

SAM Society of American Music 

SAA Society of American Archivists 

TRIPS Trade-Related Aspects of Intellectual Property Rights 

URAA Uruguay Round Agreements Act 

WTO World Trade Organization 
vi 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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 Wax cylinder 

EXECUTIVE SUMMARY 

In the Omnibus Appropriations Act of 2009, Congress instructed the Register of 

Copyrights (hereinafter “Copyright Office” or “Office”) to conduct a study on the “desirability 

and means” of extending federal copyright protection to sound recordings fixed before February 

15, 1972 (“pre-1972 sound recordings”). Congress directed the Office to discuss several major 

points in the study, including: (1) the effect that federal protection would have with respect to the 

preservation of pre-1972 sound recordings; (2) the effect that federal protection would have with 

respect to providing public access to the recordings; and (3) the impact that federal protection 

would have on the economic interests of right holders of the recordings. Congress also requested 

“any recommendations that the Register considers appropriate.” 

 Although sound recordings were brought within the scope of federal copyright protection 

beginning in 1972, protection of pre-1972 sound recordings remains governed by a patchwork of 

state statutory and common law. States are permitted to continue protection for pre-1972 sound 

recordings until 2067, at which time all state protection will be preempted by federal law and pre1972 sound recordings will enter the public domain. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

viii

 The Copyright Office enjoyed significant input from stakeholders in the course of 

preparing this report. The Office solicited written comments and reply comments on a panoply of 

questions, including the current state of preservation and public availability, value in the 

marketplace, the Constitutional implications of federal protection, and the best methods to avoid 

harming the legitimate interests of right holders. The Office also held a two-day public 

roundtable for representatives of libraries and archives, the recording industry, performers, 

broadcasters and satellite radio, and other interested parties. 

 Among the conclusions of the Copyright Office is that the goals served by federalizing 

common law copyright for other types of works in 1976 would be served by bringing pre-1972 

sound recordings into the federal statutory scheme as well. Indeed, Congress did not articulate 

grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little 

information as to why it did so. The Copyright Office also concludes that 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. While many librarians and 

archivists are dissatisfied with the scope of the federal statutory privileges enjoyed by libraries 

and archives, these exceptions and limitations (sections 107 and 108 in particular) provide more 

certainty and, in general, more opportunity than state laws to preserve and make available sound 

recordings from many decades past. Moreover, pre-1972 sound recordings would enjoy the 

benefit of any future statutory amendments to exceptions and limitations in the Copyright Act, 

including updates to section 108 or orphan works legislation. 

 The principal objection offered by record companies – that federalizing protection for 

pre-1972 sound recordings would cast a cloud over existing ownership of rights in those 

recordings – is not insurmountable. Congress can address it 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. Other concerns can also be 

resolved. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

ix

 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, 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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). 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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 78 rpm shellac disc

I. INTRODUCTION AND BACKGROUND 

A. The Pre-1972 Sound Recordings Report 

In 2009, Congress directed the Register of Copyrights to conduct a study on the 

desirability of and means for bringing sound recordings fixed before February 15, 1972 under 

federal jurisdiction. Specifically, 

The study is 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 is also to 

examine the means for accomplishing such coverage. As part of this effort, the 

Register of Copyrights should publish notice of the study and provide a period 

during which interested persons may submit comments. The Register of 

Copyrights is to submit a report on the results of this study to the Committees on 

Appropriations of the House and Senate no later than two years after the 

enactment of this Act. The report should include any recommendations that the 

Register considers appropriate.1 

 

1

 See 155 CONG. REC. H2397 (daily ed. Feb. 23, 2009) (statement of Rep. Obey, Chairman of the House 

Committee on Appropriations, regarding H.R. 1105, Omnibus Appropriations Act of 2009). The deadline 

was extended from March 11, 2011 to December 31, 2011 at the request of the Copyright Office. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

2

 After internal study of the issue, in 2010 the Copyright Office issued a Notice of Inquiry2

describing the issues to be addressed in the study and inviting the public to submit written 

comments on relevant questions such as (1) whether libraries currently treat pre-19723

 sound 

recordings differently from federally copyrighted sound recordings for purposes of preservation 

and access; (2) whether federalizing protection would improve their ability to preserve and 

provide access to such recordings; and (3) the likely effects on the commercial value of those 

recordings, including on the scope of rights, the certainty and enforceability of protection, 

ownership of rights, and the term of protection The deadline for initial comments was originally 

set for December 20, 2010, but was subsequently extended at the request of interested parties 

until January 31, 2011.4

 Reply comments were due on April 13, 2011.5

 The Office received 59 initial comments6

 and 17 reply comments.7 The comments 

represented organizations and individuals with diverse perspectives and experiences, including: 

● Sound recording libraries and organizations (e.g., Association of Recorded 

Sound Collections, Music Library Association, Society for American Music) 

● Other libraries, archives and library and archives associations (e.g., Library 

of Congress, American Library Association, Association of Research Libraries, 

Society of American Archivists) 

 

2

 75 Fed. Reg. 67,777 (Nov. 3, 2010). Federal Register notices published by the Copyright Office during 

this study are included as Appendices A-C. 

3

 As used in this report, “pre-1972” means before February 15, 1972, when sound recordings first became 

eligible for federal copyright protection. 

4

 75 Fed. Reg. 74,749 (Dec. 1, 2010). 

5

 Originally the period for reply comments was set at 30 days, but that deadline too was extended at the 

request of the parties. See Appendix B; 76 Fed. Reg. 10,405 (Feb. 24, 2011). 

6

 One of the comments, #57, groups together 231 copies of a form letter originated by Grooveshark. The 

form letter is available on Grooveshark’s website at http://blog.grooveshark.com/post/2519052858/helpgrooveshark-stay-alive (last checked Dec. 1, 2011). 

7

 Both the initial comments and the reply comments have been posted to the Copyright Office’s website 

and are available at http://www.copyright.gov/docs/sound/. Lists of commenters are attached as 

Appendices D and E. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

3

● Recording industry associations (e.g., American Association of Independent 

Music, Recording Industry Association of America) 

● Broadcasters and satellite radio (e.g., National Association of Broadcasters, 

Sirius XM) 

● Music publishers (e.g., National Music Publishers Association) 

● Songwriters and musicians organizations (e.g., Songwriters Guild of America, 

Future of Music Coalition) 

● Universities and academic institutions (e.g., University of Louisville, Syracuse 

University, Tulane University Law School, University of Utah Library) 

● Other organizations concerned about the legal treatment of pre-1972 sound 

recordings (e.g., Electronic Frontier Foundation, Starr-Gennett Foundation, 

Sound Exchange, Inc.) 

● Numerous individuals 

The Copyright Office also organized a two-day public meeting in Washington, D.C. on 

June 2 and 3, 2011, attended by 19 representatives of 13 organizations, as well as two individuals. 

These participants included representatives of all of the categories of commenters, and most of 

the organizations, listed above. (See Appendix F.) The Office subsequently met with several 

organizations and individuals to further explore some of the issues raised in the comments and in 

the meetings. 

 In the course of its research, the Office consulted a number of reports commissioned or 

sponsored by the National Recording Preservation Board, all published between 2005 and 2010.8

 

8

 Rob Bamberger and Sam Brylawski, Nat’l Recording Preservation Board of the Library of Congress, THE 

STATE OF RECORDED SOUND PRESERVATION IN THE UNITED STATES: A NATIONAL LEGACY AT RISK IN THE 

DIGITAL AGE 1 (2010) [hereinafter NRPB REPORT]; June M. Besek, COPYRIGHT ISSUES RELEVANT TO 

DIGITAL PRESERVATION AND DISSEMINATION OF PRE-1972 COMMERCIAL SOUND RECORDINGS BY 

LIBRARIES AND ARCHIVES (CLIR & Library of Congress 2005) [hereinafter, BESEK COMMERCIAL SOUND 

RECORDINGS STUDY]; June M. Besek, COPYRIGHT AND RELATED ISSUES RELEVANT TO DIGITAL 

PRESERVATION AND DISSEMINATION OF UNPUBLISHED PRE-1972 SOUND RECORDINGS BY LIBRARIES AND 

ARCHIVES (CLIR & Library of Congress 2009) [hereinafter, BESEK UNPUBLISHED SOUND RECORDINGS 

STUDY]; Tim Brooks, SURVEY OF REISSUES OF U.S. RECORDINGS (CLIR & Library of Congress 2005) 

[hereinafter, BROOKS STUDY]; Program on Information Justice and Intellectual Property, Washington 

College of Law, American University (under the supervision of Peter Jaszi with the assistance of Nick 

Lewis), PROTECTION FOR PRE-1972 SOUND RECORDINGS UNDER STATE LAW AND ITS IMPACT ON USE BY 
United States Copyright Office PRE-1972 SOUND RECORDINGS

4

This Report is the result of the Copyright Office’s research and public outreach 

concerning the legal treatment of pre-1972 sound recordings. The Report (1) explains the process 

by which the Office undertook its research; (2) describes the comments received as well as the 

views expressed at the public meetings; and (3) explain the Office’s recommendations and the 

reasons for them.9

B. The Pre-1972 Sound Recordings Issue 

The body of pre-1972 sound recordings is vast. Commercially released “popular” 

recordings come most readily to mind – from Frank Sinatra and Ella Fitzgerald to the Beatles and 

the Rolling Stones. But pre-1972 commercial recordings encompass a wide range of genres: 

ragtime and jazz, rhythm and blues, gospel, country and folk music, classical recordings, spoken 

word recordings and many others.10 Some remain popular; others have long since faded from 

memory and are of interest only to scholars. There are, in addition, many unpublished recordings 

such as journalists’ tapes, oral histories, and ethnographic and folklore recordings. There are also 

recordings of old radio broadcasts, which were publicly disseminated by virtue of the broadcast, 

but in many cases are technically unpublished under the standards of the U.S. Copyright Act. 

These recordings are a rich aspect of this country’s cultural heritage, and it is important to ensure 

that they will be preserved and accessible for researchers and scholars, as well as to future 

generations. 

 NONPROFIT INSTITUTIONS: A 10-STATE ANALYSIS (CLIR & Library of Congress 2009) [hereinafter, JASZI 

STUDY]. 

9

 In citing to the comments and the transcript of the public meeting, this Report follows the following 

conventions: For an initial comment, the institutional or individual author followed by the page number 

(e.g., Society of American Archivists (SAA) at 10); for a reply comment, the same structure but with the 

word “Reply” (e.g., SAA Reply at 6); for a citation to the public meeting transcript, the speaker, the letter 

T, a number indicating the first or second day, and the page number (e.g., Schwartz T1 at 78). 

10 See generally BROOKS STUDY. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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Congress brought sound recordings within the scope of federal copyright law for the first 

time on February 15, 1972. It provided protection on a prospective basis, leaving recordings first 

fixed before that date under the protection of state law. The issue was revisited during enactment 

of the 1976 Copyright Act, when Congress federalized protection for works that had been 

protected by state rather than federal copyright law but preserved the state law regime for pre1972 sound recordings.11 But Congress did provide some limitations on state law protection for 

sound recordings: the Copyright Act provides that states are entitled to protect pre-1972 sound 

recordings until February 15, 2067.12 At that point, all pre-1972 sound recordings, no matter how 

old, will enter the public domain in one fell swoop and the dual regimes of protection for sound 

recordings will disappear. 

As a consequence of this legal construct, there is virtually no public domain in the United 

States for sound recordings and a 55 year wait before this will change.13 To put this in 

perspective, one need only compare the rules of copyright term for other works. For example, a 

musical composition published in 1922 would have entered the public domain at the end of 1997, 

but a sound recording of that same musical composition that was fixed the same year will remain 

protected for another 70 years, until 2067. In fact, sound recordings first fixed in 1922 will enter 

the public domain the same year as those first fixed between February 15 and December 31, 1972 

 

11 Until the effective date of the 1976 Copyright Act, unpublished works were protected by state common 

law copyright, which lasted until a work was published. As discussed below, state law (including common 

law copyright as well as other common law doctrines and statutes) also protected sound recordings, 

whether or not they were published. See infra Chapter II.E. 

12 See 17 U.S.C. § 301(c); see also Capitol Records, Inc. v. Naxos of America, Inc., 830 N.E.2d 250 (N.Y. 

2005), discussed below. 

13 A few individual states have explicitly set shorter terms of protection (see infra Chapter II.E.2), but no 

pre-1972 sound recordings are in the public domain throughout the United States unless they were 

published between February 15, 1972 and March 1, 1989 without notice and without mitigating 

circumstances, or unless their right holders have dedicated them to the public domain. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

6

(the first year they were eligible for federal protection). In each case, they will not enter the 

public domain until the end of 2067. 14 

To be clear, it is misleading to speak of state law as a single regime of protection. More 

accurately, it consists of multiple regimes of protection, sometimes vague and inconsistent, with 

the scope of rights and of permissible activities often difficult to discern. This patchwork of state 

protection has frustrated many libraries, archives and educational institutions, which are unclear 

at best whether they are legally permitted to preserve pre-1972 sound recordings, or provide 

access to them for researchers and scholars – at least to the same degree as later recordings.15 

 

14 To make matters more complicated, it is not always clear which of the two regimes of protection for 

sound recordings, state or federal (or both), is applicable because, due to copyright restoration in certain 

circumstances, there are some recordings fixed prior to February 15, 1972 that have federal law protection 

as well. Foreign sound recordings whose copyrights were “restored” under the Uruguay Round 

Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, 4973 (1994) may begin to enter the public domain 

only at the end of 2041. See infra Chapter II.D.

15 See NRPB REPORT at 131. 
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7

 Lacquer recorder 

II. LEGAL AND LEGISLATIVE HISTORY

A. Federal Copyright Law and Sound Recordings until 1972 

Sound recordings as defined under federal copyright law are “works that result from the 

fixation of a series of musical, spoken, or other sounds, . . . regardless of the nature of the 

material objects, such as disks, tapes or other phonorecords, in which they are embodied.”16 

Although sound recordings have existed since the mid-nineteenth century,17 no federal copyright 

protection was available to them until 1972.18 

As early as 1906, during the revision process that led to the 1909 Copyright Act, 

representatives of the then-leading record company, Victor Talking Machine Co., urged Congress 

 

16 17 U.S.C. § 101. The full definition of sound recordings is: “works that result from the fixation of a 

series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or 

other audiovisual work, regardless of the nature of the material objects, such as disks, tapes or other 

phonorecords, in which they are embodied.” Id. 

17 According to the NRPB Report, the earliest identifiable sound recording was made in 1860, and the 

phonograph was invented in 1877. NRPB REPORT at 1, 133. 

18 For a thorough and insightful analysis of the legal status of sound recordings in the United States until 

1957, see Barbara A. Ringer, COPYRIGHT LAW REVISION, STUDY NO. 26: THE UNAUTHORIZED 

DUPLICATION OF SOUND RECORDINGS, at 21-37 (Feb. 1957) [hereinafter, Ringer], available at

http://www.copyright.gov/history/studies/study26.pdf. 
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8

to grant federal copyright protection to sound recordings.19 They were unsuccessful in getting 

such a provision into any of the revision bills introduced from 1906 to 1908. But in 1908, the 

Supreme Court decided White-Smith v. Apollo,

20 holding that a piano roll was not a “copy” of the 

musical composition embodied in it because the composition could not be “read” from the roll 

with the naked eye. Therefore, according to the Court, the defendant did not infringe the musical 

composition in creating and reproducing the roll. Record companies apparently realized the 

inconsistency between the holding in White-Smith and their proposal to grant copyright protection 

for sound recordings (for which mechanical reproductions were the only means of fixation), and 

they abandoned that proposal.21 

The 1909 Copyright Act, passed the following year, granted copyright owners of musical 

compositions rights with respect to mechanical reproductions of their compositions, for example, 

in records or piano rolls. Congress was concerned, however, that if musical composition owners 

had exclusive rights, record companies might be able to buy up the rights and monopolize the 

market with respect to particular musical compositions, so the mechanical right was made subject 

to a compulsory license. Once a music copyright owner authorized a mechanical reproduction of 

his composition, others could take advantage of the license to make their own mechanical 

reproductions, provided that they met the statutory requirements and paid the statutory rate.22

While the 1909 Act provided protection for copyright holders of musical compositions 

whose works were reproduced in sound recordings, it included no explicit protection for sound 

recordings per se. As a result, over the subsequent decades the courts and the Copyright Office 

 

19 See Ringer at 3. 

20 White-Smith Publ’g. Co. v. Apollo Co., 209 U.S. 1 (1908), superseded by statute, Copyright Act of 

1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976). 

21 Ringer at 4. 

22 An Act to Amend and Consolidate the Acts Respecting Copyright, Pub. L. No. 60-349, 35 Stat. 1075, 

§ 1(e) (1909). 
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9

consistently refused to recognize copyright in sound recordings.23 By the 1940s and 1950s, 

respected commentators, including Professor Zechariah Chafee24 and Judge Learned Hand,25 had 

expressed the opinion that there was no constitutional obstacle to protecting a sound recording as 

the writing of an author, even though its fixation may be unintelligible to the naked eye. They 

were in agreement, however, that the current law did not provide such protection. 

In the absence of federal protection, states provided protection against duplication of 

sound recordings under common law theories, usually unfair competition or common law 

copyright, as discussed below. 

The first bill to explicitly provide federal copyright protection for sound recordings was 

introduced in Congress in 1925,26 and copyright revision bills that would have extended copyright 

protection to sound recordings (with varying restrictions) were introduced regularly thereafter 

through 1951.27 In all, more than thirty bills to provide sound recordings with some form of 

copyright protection were introduced during this period, but none passed.28 In a Copyright Office 

study published in 1957, Barbara Ringer (who later became Register of Copyrights) observed that 

the opposition to these bills was based on technical deficiencies and concerns about their 

constitutionality (both as to whether sound recordings were creative, and whether they were 

 

23 See, e.g., Aeolian Co. v. Royal Music Roll Co., 196 F. 926, 927 (W.D.N.Y. 1912) (“music rolls or 

records are not strictly matters of copyright”). The Court’s holding in White-Smith Publ’g. Co. v. Apollo – 

that a piano roll did not qualify as a copy of the musical composition embodied in it – was adopted in the 

1909 Act not only with respect to whether a reproduction was an infringement, but also with respect to 

whether a reproduction met the fixation requirement. Melville B & David Nimmer, NIMMER ON 

COPYRIGHT, § 2.03[B][1] (2011) at 2-32 to -33 [hereinafter NIMMER ON COPYRIGHT]. 

24 Zechariah Chafee, Reflections on the Law of Copyright, 45 COLUM. L. REV. 719, 735 (1945). 

25 Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657, 664 (2d Cir. 1955) (Hand, J. dissenting). 

The panel agreed that the Constitution permitted Congress to protect sound recordings and that it had 

chosen not to provide such protection, but Judge Hand dissented on preemption grounds. 

26 H.R. 11258, 68th Cong. (2d Sess. 1925). 

27 See Ringer at 21-37 for a detailed discussion of efforts to provide copyright protection for sound 

recordings from 1925-1951. 

28 See id.; see also Melvin L. Halpern, The Sound Recording Act of 1971: An End to Piracy on the High 

©’s?, 40 GEO. WASH. L. REV. 964, 975 (1971-1972). 
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10

writings). She characterized the arguments on both sides as “dictated by economic self-interest, 

and revolv[ing] around the problem of radio broadcasting.”29 She observed that there was 

“practically no direct opposition” to the principle that sound recordings should be protected 

against unauthorized duplication.30 

As work began in earnest on a comprehensive revision of the 1909 Copyright Act, the 

possibility of protecting sound recordings received renewed attention. Barbara Ringer’s study, 

“The Unauthorized Duplication of Sound Recordings” was one of several studies commissioned 

by Congress to lay the groundwork for what became the 1976 Copyright Act. The contemplation 

was that sound recordings would be included in the copyright revision law that was then under 

development,31 and copyright revision bills in the 1960s and early 1970s included protection for 

sound recordings, although the scope of that protection varied in the different bills.32 

B. 1971 Sound Recording Amendment 

The general copyright revision process became stalled in the late 1960s and early 1970s. 

Congress, persuaded that the situation concerning sound recordings was becoming urgent, 

decided to bring sound recordings under the federal copyright law without waiting for the overall 

revision. On November 15, 1971 it passed the Sound Recording Amendment, which for the first 

time made sound recordings eligible for federal copyright.33

There were three principal reasons that Congress moved ahead on sound recordings 

without waiting for the general revision. First, record and tape piracy had climbed to alarming 

 

29 Ringer at 37. 

30 Id. 

31 See Report of the Register of Copyrights on the General Revision of the Copyright Law at 18 (1961). 

32 See, e.g., Copyright Law Revision, Part 3, Preliminary Draft for Revised U.S. Copyright Law § 10 (Sept. 

1964); S. 543, 91st Cong. (1st Sess. 1969); H.R. 2512, 90th Cong. (1st Sess. 1967); S. 597, 90th Cong. (1st 

Sess. 1967). 

33 Pub. L. No. 92-140, § 3, 85 Stat. 391, 392 (1971). 
United States Copyright Office PRE-1972 SOUND RECORDINGS

11

proportions as the use of audiotapes and audiotape recorders became increasingly popular and 

made it easier to make and distribute unauthorized recordings on a commercial scale. The House 

Report accompanying the 1971 Act estimated the annual volume from pirated sales “in excess of 

$100 million” as compared with $300 million annually from legitimate sales of prerecorded 

tapes.34 

Second, although states had begun to pass criminal laws prohibiting the unauthorized 

commercial duplication and distribution of sound recordings,35 in most states record producers 

still relied on unfair competition, “where the remedies available are limited.”36 Moreover, the 

Supreme Court’s decisions in Sears, Roebuck & Co. v. Stiffel37 and Compco v. Day-Brite 

Lighting, Inc.

38 had cast doubt on the validity of state protection.39 Defendants in record piracy 

cases were arguing that state laws were preempted by the federal copyright scheme, even though 

Congress had chosen not to protect sound recordings.40 

Third, a diplomatic conference to complete a treaty to combat record piracy was 

scheduled for late 1971, and Congress believed progress on the domestic front would be helpful 

to U.S. interests.41 

 

34 H.R. REP. NO. 92-487, 92nd Cong. at 2 (1971). 

35 See infra Chapter II.E. 

36 H.R. REP. NO. 92-487 at 2. For example, state law was far from uniform, and states could not enjoin 

activities beyond their borders. See Halpern, The Sound Recording Act of 1971: An End to Piracy on the 

High ©’s?, 40 GEO. WASH. L. REV. at 975. 

37 376 U.S. 225, 230 (1964). 

38 376 U.S. 234, 238 (1964). 

39 See H.R. REP. No. 92-487 at 2-3, 12-13; see also Int’l Tape Mfrs. Assn v. Gerstein, 344 F. Supp. 38, 49 

(S.D. Fla. 1972), vacated and remanded, 494 F.2d 25 (5thCir. 1974); Tape Indus. Assn. v. Younger, 316 F. 

Supp. 340, 346 (C.D. Cal. 1970), appeal dismissed, 401 U.S. 902 (1971). 

40 The preemption issue was not conclusively resolved until after the Sound Recording Amendment was 

passed, when the Supreme Court decided Goldstein v. California, 412 U.S. 546 (1973), discussed below. 

41 See H.R. REP. NO. 92-487 at 3, 11. The diplomatic conference led to the Geneva Convention for the 

Protection of Producers of Phonograms, Oct. 28, 1971, 25 U.S.T. 309. 
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12

The effective date of the Sound Recording Amendment was February 15, 1972,42 four 

months after it was passed. It applied to sound recordings first fixed on or after that date. The 

law provided only a limited right with respect to sound recordings. Its principal provision was to 

grant sound recordings a reproduction right analogous to that provided for other works of 

authorship, thus giving record producers a new tool with which to combat outright duplication. 

However, the right to reproduce was “limited to the right to duplicate the sound recording in a 

tangible form that directly or indirectly recaptures the actual sounds fixed in the recording.”43 

Thus, the new law provided no protection against imitations of the performance. Moreover, it 

contained a significant temporal restriction: it had a “sunset provision” and protected only sound 

recordings first fixed on or after February 15, 1972 and before January 1, 1975.44 It is apparent 

that Congress envisioned that protection for sound recordings would be folded into the copyright 

revision act then under consideration, making any extension of the sound recording amendment 

unnecessary. 

The bill omitted any performance right for sound recordings, which had been a 

controversial issue in the revision process. At the same time, Congress refused to impose a 

compulsory license on sound recordings analogous to the one contained in the law for musical 

compositions, something that the bill’s opponents had sought. In both cases, Congress observed 

that those issues could be revisited in the general revision of the copyright law.45 There was no 

discussion of Congress’s decision to protect sound recordings only on a prospective basis. 

 

42 Pub. L. No. 92-140, § 3, 85 Stat. 391, 392 (1971). 

43 Id. § 1(a). 

44 See id. § 3. 

45 See H.R. REP. NO. 92-487 at 5; S. REP. NO. 92-72 at 3 (1971). 
United States Copyright Office PRE-1972 SOUND RECORDINGS

13

Shortly after the 1971 Sound Recording Amendment was enacted, its constitutionality 

was challenged in Shaab v. Kleindienst.

46 A three-judge district court rejected the plaintiff’s main 

argument that sound recordings do not qualify as the “writings” of “authors.” 

The following year, the Supreme Court put to rest the question whether states could 

regulate pre-1972 sound recordings. In Goldstein v. California,

47 the Supreme Court held that 

California’s record piracy law as it applied to pre-1972 sound recordings was not preempted by 

federal copyright law or the Constitution under its decision in Sears and Compco. The Court 

concluded that Congress had left the area of sound recordings “unattended,” and states were free 

to act with respect to the regulation of pre-1972 sound recordings.48 The Goldstein case led to the 

passage of many more state anti-piracy laws with respect to pre-1972 recordings,49 and its 

rationale extended as well to state civil protection. 

By the end of 1974 the copyright revision bill still had not become law, so Congress 

removed the January 1, 1975 sunset date for federal copyright protection of sound recordings.50

C. 1976 Copyright Revision Act 

The Copyright Revision Act was passed on October 19, 1976. It included sound 

recordings among the categories of protectable subject matter, although the scope of protection 

for sound recordings continued to be more limited than that for other works. The reproduction 

right was (and continues to be) limited to duplication of the actual sounds in the recording.51 

 

46 345 F. Supp. 589 (D.D.C. 1972). 

47 412 U.S. 546 (1973). 

48 Id. at 569-70. 

49 See Sidney A. Diamond, Sound Recordings and Phonorecords: History and Current Law, 1979 U. ILL.

L. F. 337, 349 (1979). 

50 Pub. L. No. 93-573, 88 Stat. 1873 (Dec. 31, 1974). 

51 See 17 U.S.C. § 114(b). There is a similar limitation with respect to the derivative work right in sound 

recordings. See id. 
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14

Sound recordings were granted no public performance right in the 1976 Copyright Act, although 

later enactments provided them with a performance right with respect to certain digital 

transmissions.52

Thus sound recordings fixed on or after February 15, 1972 were secure in their eligibility 

for federal copyright protection. The fate of pre-1972 sound recordings, however, was addressed 

separately in the law. 

 To create a unitary system of copyright, Congress in the 1976 Act preempted state law 

that provided rights equivalent to copyright. Specifically, section 301(a) of the Copyright Act 

provides: 

On and after January 1, 1978, all legal or equitable rights that are equivalent to 

any of the exclusive rights within the general scope of copyright as specified by 

section 106 in works of authorship that are fixed in a tangible medium of 

expression and come within the subject matter of copyright as specified by 

sections 102 and 103, whether created before or after that date and whether 

published or unpublished, are governed exclusively by this title. Thereafter, no 

person is entitled to any such right or equivalent right in any such work under the 

common law or statutes of any State. 

 Congress exempted pre-1972 sound recordings from this general preemption provision 

and treated them separately under section 301(c) of the Copyright Act, which currently provides: 

With respect to sound recordings fixed before February 15, 1972, any rights or 

remedies under the common law or statutes of any State shall not be annulled or 

limited by this title until February 15, 2067. The preemptive provisions of 

subsection (a) shall apply to any such rights and remedies pertaining to any cause 

of action arising from undertakings commenced on and after February 15, 2067. 

Notwithstanding the provisions of section 303, no sound recording fixed before 

February 15, 1972, shall be subject to copyright under this title before, on, or 

after February 15, 2067. 

Why Congress decided to maintain two separate systems of protection for sound 

recordings is unclear.53 There are at least two theories as to why Congress did not bring pre-1972 

 

52 Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (1995), 

as amended by the Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860, 2905 

(1998) (codified at 17 U.S.C. § 114). 
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15

recordings under federal law in 1976. The first is that Congress did not fully understand the 

implications of amending the bill as it then existed to add section 301(c) – in short, it was simply 

a mistake. Section 301 in S. 22, the general revision bill introduced in 1975, provided for 

preemption of state laws equivalent to copyright, but did not specifically exclude state laws 

concerning pre-1972 sound recordings.54 The Justice Department, in the course of the 1975 

hearings, had expressed concern that unless Congress excluded pre-1972 sound recordings from 

the general preemption provision, state anti-piracy laws related to those recordings would be 

abrogated, and the likely result would be “the immediate resurgence of piracy of pre-February 15, 

1972 sound recordings.”55 It suggested adding a provision to exclude from the sweep of federal 

preemption the state laws that protected pre-1972 sound recordings. Apparently in response to 

this concern, the Senate added such a provision to the pending bill.56 Nimmer suggests that both 

the Justice Department and the Senate “overlooked” the fact that a resurgence of piracy would not 

 53 Commentary on the early revision bills reflected some uncertainty as to whether any preexisting sound 

recordings would qualify for federal copyright protection. Against the possibility that at least some might 

be eligible, Congress included a provision in the revision bill (§ 402(d)) that copyright notice would be 

required only once the federal law became applicable, so that an otherwise eligible recording would not be 

barred from protection for failure to use a notice in the past. See, e.g., H.R. REP. NO. 89-2237 at 20, 39 

(1966). The sound recording industry urged that preexisting recordings affirmatively be included in the 

revision bill. See, e.g., Hearings on S. 597 Before the Subcomm. on Patents, Trademarks and Copyrights of 

the S. Comm. on the Judiciary, 90th Cong. at 519 (1967) (Testimony of Clive Davis, CBS Records); see id. 

at 531-32 (Testimony of Henry Brief, RIAA). In 1969, Senator Harrison Williams offered an amendment 

to S. 543, the revision bill under consideration by the Senate in the 91st Congress. 115 CONG. REC. 8613, 

8617 (Apr. 3, 1969). The amendment was principally designed to add a performance right in sound 

recordings, but it also included an amendment to section 303 of the draft bill to explicitly protect 

preexisting sound recordings. The performance rights amendment was accepted and became part of the 

revision bill in the Senate until 1974. Neither the portion of the amendment designed to include preexisting 

sound recordings under federal law nor section 402(d) survived the subcommittee vote, but the report 

provides no explanation. See S. REP No. 91-1219 at 7 (1970). 

54 S. 22, 94th Cong., § 301 (1st Sess. 1975). 

55 Hearings on H.R. 2223 Before the Subcomm. on Courts, Civil Liberties and the Administration of 

Justice of the H. Comm. on the Judiciary, Ser. No. 36, Part I at 137-38 (1975) [hereinafter, 1975 House 

Hearings]. 

56 S. 22, 94th Cong. § 301(b)(4) (2d Sess. 1976). 
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16

otherwise have resulted because the revision bill in its then-current form conferred statutory 

protection on all sound recordings.57 

However, it appears that the Recording Industry Association of America (“RIAA”) and 

the Copyright Office shared the Justice Department’s view that without the amendment to the 

preemption provision, pre-1972 sound recordings would be left without protection when the 

Copyright Revision Act went into effect. RIAA “strongly supported” the Justice Department’s 

proposed amendment.58 The Register of Copyrights agreed that pre-1972 sound recordings 

“should not all be thrown into the public domain instantly upon the coming into effect of the new 

law.”59 However, she expressed concern that under the Justice Department’s proposed 

amendment, sound recordings would have perpetual protection under state law, and suggested a 

revision to provide a future date of February 15, 2047 for preemption to take place.60

Subsequently, the House added an end date of February 15, 2047 for state law protection 

for pre-1972 recordings, together with a provision specifically excluding pre-1972 sound 

recordings from federal copyright protection.61 

 The second theory for why Congress did not bring pre-1972 sound recordings into federal 

copyright in 1976 is that Congress was simply following a long tradition of including new works 

 

57 1 NIMMER ON COPYRIGHT, § 2.10[B] at 2-178.4. 

58 1975 House Hearings at 1397 (1975) (Addendum to Statement of Stanley M. Gortikov, Sept. 11, 1975). 

59 Id. at 1911 (testimony of Barbara Ringer, Register of Copyrights). 

60 Id. Concerning the 2047 end date, the Register stated: “This might seem like a long time, but I would 

point out that it is in comparison to eternity. . . .” Id. 

61 This date of February 15, 2047 allowed state law works created the last day before federal copyright 

protection went into effect – February 14, 1972 – to enjoy a full 75 years of protection. Seventy-five years 

was the maximum duration of protection for works copyrighted under the 1909 Act, as provided by the 

terms of the 1976 Act. Of course, under most state laws there is no expiration date for protection of pre1972 sound recordings, so a sound recording created in either 1941or 1971would remain protected until 

2047. When the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) 

was passed, the date for preemption of state laws protecting sound recordings was extended by 20 years, to 

February 15, 2067. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

17

under copyright only on a prospective basis.62 This was the case, for example, with musical 

compositions in 183163 and photographs64 in 1865.65 

It is apparent from the legislative reports concerning the Sound Recording Amendment 

and the 1976 Copyright Act that Congress well understood it was leaving in place the state law 

regime for pre-1972 sound recordings, rather than bringing them under federal law. However, 

nowhere does Congress explain the considerations that, in its view, supported this result. This 

omission is particularly curious in light of Congress’s articulated goal of a unitary system of 

copyright and its decision to implement that goal by bringing essentially all other works protected 

by state law copyright regimes into the federal system. 

D. 1994 Uruguay Round Agreements Act 

 Despite this history, there are now some pre-1972 sound recordings that do enjoy federal 

copyright protection. When Congress implemented the TRIPS Agreement in the Uruguay Round 

Agreements Act (URAA),66 passed in 1994, it “restored” copyright protection to certain works of 

foreign origin that were in the public domain in the United States on the effective date (which for 

most works was January 1, 1996).67 This was done to comply with U.S. treaty obligations. Many 

 

62 See Henry Lee Mann, As Our Heritage Crumbles Into Dust: The Threat of State Law Protection for 

Pre-1972 Sound Recordings, 6 WAKE FOREST INTELL. PROP. L. REV. 45, 51-54 (2006). 

63 Act of Feb. 3, 1831, Ch. 16, 4 Stat. 436. 

64 Act of Mar. 3, 1865, Ch. 126, 13 Stat. 540. 

65 In 1912 Congress amended the 1909 Copyright Act to include motion pictures, but the law was silent on 

the question of its applicability to earlier works. Act of Aug. 24, 1912, Ch. 356, 37 Stat. 488. 

66 The Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994), implemented U.S. 

obligations under the Trade-Related Aspects of Intellectual Property Rights Agreement, April 15, 1994, 33 

I.L.M. 1199, Annex 1C of the Agreement Establishing the World Trade Organization (“TRIPS 

Agreement”), 33 I.L.M. 1143 (1994). 

67 This was the date of restoration for works whose source countries were members of the Berne 

Convention or the WTO on that date; for other countries, it is the date of adherence. See 17 U.S.C. 

§ 104A(h)(2). 
United States Copyright Office PRE-1972 SOUND RECORDINGS

18

of those works had fallen into the public domain for failure to comply with U.S. formalities that 

used to be conditions for copyright protection, such as renewal registration or affixation of a valid 

copyright notice. However, among the works for which protection was “restored” were 

qualifying pre-1972 sound recordings of foreign origin, which had never before been eligible for 

federal copyright protection. 

 In order to be eligible for restoration, works had to meet several conditions, including (1) 

they could not, on the date of restoration, be in the public domain in their home country through 

expiration of the term of protection; (2) they had to be in the public domain in the United States 

due to noncompliance with formalities, lack of subject matter protection (as was the case for 

sound recordings),68 or lack of national eligibility; and (3) they had to meet national eligibility 

standards, i.e., the work had to be of foreign origin.69 Specifically, to be restored a work had to 

have “at least one author or rightholder who was, at the time the work was created, a national or 

domiciliary of an eligible country, and if published, must have been first published in an eligible 

country and not published in the United States during the 30-day period following publication in 

such eligible country.”70

 Restoration occurred automatically on the effective date.71 As explained above, one of 

the conditions was that the sound recording in question could not be in the public domain in its 

home country on the effective date due to expiration of copyright term. Most foreign sound 

recordings are protected in other countries not by copyright, but under a “neighboring rights” 

regime which provides a 50-year term of protection.72 As a result, most foreign sound recordings 

 

68 See 17 U.S.C. § 104A(h)(6)(C)(ii). 

69 See 17 U.S.C. § 104A(h)(6). 

70 17 U.S.C. §104A(h)(6)(D). 

71 17 U.S.C. §104A(a)(1). 

72 Some countries offer a longer term of protection for sound recordings, and the number of countries that 

offer a longer term is about to increase dramatically. Earlier this year, the Council of the European Union 

issued a directive extending the term of protection for phonograms (sound recordings) to 70 years. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

19

first fixed prior to 1946 were not eligible for restoration. Those that were protected in their home 

countries on January 1, 1996 got the term they would have received had they been copyrighted in 

the United States: 75 years from publication, later extended to 95 years.73 This means, for 

example, that a foreign recording made in 1945 probably would have gone into the public domain 

in its home country by the end of 1995 and therefore was not eligible for U.S. federal copyright 

protection.74 On the other hand, a foreign recording made in 1947 probalby would have have 

gone into the public domain in its home country by the end of 1997, but because its copyright was 

restored in the United States on January 1, 1996, it received a 75 year term (later extended to 95 

years), so it will be protected by U.S. copyright law until the end of 2042. 

 It is theoretically possible that foreign sound recordings restored to federal copyright 

protection enjoy concurrent state law protection. Section 301(c) – which saves state laws 

concerning sound recordings from federal preemption until 2067 – was never amended to exclude 

foreign recordings.75 However, the rationale underlying Goldstein v. California was that 

Congress “has left the area [legal protection of sound recordings] unattended, and no reason 

exists why the State should not be free to act.”76 One might reasonably argue that Congress has 

not left the legal status of these restored foreign recordings “unattended,” so that state law is 

preempted by the URAA at least with respect to those recordings. This issue has not been 

 Directive 2011/77/EU of The European Parliament and of The Council, 2011 O.J. (L. 265) (Sept. 27, 

2011). All 27 member states of the European Union are required to implement the new extended term in 

their domestic laws no later than November 1, 2013. The extension is not retroactive, i.e., it does not apply 

to sound recordings that are already in the public domain. Thus, a phonorecord first published on 

September 1, 1961 would not enjoy the newly-extended 70-year term of protection in the EU. 

73 See Uruguay Round Agreements Act, Statement of Administrative Action, H.R. REP. NO. 103-316 

(1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4290. 

74 However, such a recording may be eligible for state protection. See Capitol Records, Inc. v. Naxos of 

America, Inc., 830 N.E.2d 250 (N.Y. 2005), discussed below. 

75 See 3 NIMMER ON COPYRIGHT, § 8C.03[E] at 8C-10.2 to 8C-10.3. 

76 412 U.S. 546, 570 (1973) (footnote omitted). 
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addressed by the courts, and merely illustrates the potential complications, and inconsistencies, of 

dual systems of protection. 

E. State Law Protection for Pre-1972 Sound Recordings 

State law protection for pre-1972 sound recordings is a complicated subject, and this 

Report provides only a brief overview.77 The states provide protection for pre-1972 sound 

recordings through a patchwork of criminal laws, civil statutes and common law. Early cases 

relied on common law, principally the tort of unfair competition, to protect sound recordings from 

unauthorized duplication and sale.78 By the 1950s, record piracy had become a serious problem, 

with pirates openly competing with record companies.79 For that reason, attention shifted to 

legislation imposing criminal sanctions starting in the 1960s. 

1. Criminal Record Piracy Statutes 

In the 1960s, states began to pass laws making it a criminal offense to duplicate and 

distribute sound recordings, without authorization, for commercial purposes. New York was the 

first such state in 1967; California was the second, in 1968.80 Several other states followed, and 

 

77 For a more extensive overview of state law protection for pre-1972 sound recordings, see JASZI STUDY,

BESEK UNPUBLISHED SOUND RECORDINGS STUDY, and BESEK COMMERCIAL SOUND RECORDINGS STUDY. 

A chart of state criminal laws, prepared initially by ARL and revised and updated by Copyright Office 

interns, as well as the texts of those laws, are available at www.copyright.gov/docs/sound. 

78 See, e.g., Victor Talking Mach. Co. v. Armstrong, 132 F. 711 (S.D.N.Y. 1904). 

79 Glenn M. Reisman, The War Against Record Piracy: An Uneasy Rivalry Between the Federal and State 

Governments, 39 ALB. L. REV. 87, 89 (1974). 

80 See 1968 Cal. Stat. ch. 585, p. 1256, codified as amended in CAL. PENAL CODE § 653h (West 2011); 

New York Law, L. 1967, ch. 680 § 59, initially codified in N.Y. GEN. BUS. LAW art. 29-D. That section 

was repealed in 1978 when the law became part of New York’s Penal Code, L. 1978, ch. 445, codified in 

N.Y. PENAL LAW §§ 275.00–275.45 (McKinney 2011). 

 
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after the Supreme Court ruled in Goldstein v. California81 in 1973 that state law protection of 

sound recordings was constitutional, many additional states passed such laws. 

 a. Examples of state criminal statutes

Currently, nearly all states have criminal record piracy laws applicable to pre-1972 sound 

recordings.82 Most state criminal laws prohibit, at a minimum, duplication and sale of recordings 

done knowingly and willfully with the intent to sell or profit commercially from the copies.83 

Many have express exceptions for activities such as broadcasting, archiving, and personal use. It 

is unclear how many cases are brought under these statutes, but they inform the protection for 

sound recordings under state law and provide a backdrop for commercial transactions. 

Examples from four states – California, Michigan, New York and Tennessee – illustrate 

some of the different forms of criminal record piracy statutes. 

California. California’s criminal record piracy statute provides: 

(a) Every person is guilty of a public offense . . . who: 

(1) Knowingly and willfully transfers or causes to be transferred any 

sounds that have been recorded on a phonograph record, disc, wire, tape, 

film or other article on which sounds are recorded, with intent to sell or 

cause to be sold, or to use or cause to be used for commercial advantage 

or private financial gain through public performance, the article on which 

the sounds are so transferred, without the consent of the owner. 

(2) Transports for monetary or like consideration within [California] or 

causes to be transported within [California] any such article with the 

knowledge that the sounds thereon have been so transferred without the 

consent of the owner.84 

 

81 412 U.S. 546. 

82 2 NIMMER ON COPYRIGHT, § 8C.03[C] at 8C-8 to -9; JASZI STUDY at 8. According to a survey prepared 

by the Association of Research Libraries and supplemented and revised by the Copyright Office, only 

Indiana and Vermont do not have some form of statute criminalizing piracy of sound recordings. See

http://www.copyright.gov/docs/sound/. 

83 State laws generally also protect against creation and distribution of bootleg recordings – sometimes in 

the same statute that prohibits unauthorized duplication and distribution of existing sound recordings, and 

sometimes in a separate provision. See, e.g., BESEK UNPUBLISHED SOUND RECORDINGS STUDY, App. A. 

However, those laws, which relate to the recording of live performances without authorization, are not the 

focus of this Report. 

84 CAL. PENAL CODE § 653h(a) (West 2011). 
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In addition the law provides that 

Every person who offers for sale or resale, or sells or resells, or causes the sale or 

resale, or rents, or possesses for [the purposes specified above], any article 

described in subdivision (a) with knowledge that the sounds thereon have been so 

transferred without the consent of the owner is guilty of a public offense.85

The statute provides an exemption for persons engaged in radio or television broadcasting 

who transfer sounds (other than from the sound track of a motion picture) in connection with 

“broadcast transmission or related uses, or for archival purposes.”86

The California law contains an “orphan works” exception for not-for-profit educational 

institutions or federal or state governmental entities that have as their primary purpose “the 

advancement of the public’s knowledge and the dissemination of information regarding 

America’s musical cultural heritage.”87 It requires that the educational institution or government 

entity make “a good faith effort to identify and locate the owner or owners of the sound 

recordings to be transferred” and “the owner or owners could not be and have not been located.”88 

It provides that specific efforts must be taken to find the right holder.89 Also, it provides that the 

 

85 Id. § 653h(d). It is also an offense if, for commercial advantage or private financial gain, one knowingly 

advertises, offers for sale, etc. a recording whose cover or label does not accurately disclose the true name 

of the manufacturer and artist(s). Id. § 653w. 

86 Id. § 653h(g). 

87 That purpose must be “clearly set forth in the institution’s or entity’s charter, bylaws,” or similar 

document. Id. § 653h(h). 

88 Id. 

89 “In order to continue the exemption permitted by this subdivision, the institution or entity shall make 

continuing efforts to locate such owners and shall make an annual public notice of the fact of the transfers 

in newspapers of general circulation serving the jurisdictions where the owners were incorporated or doing 

business at the time of initial affixations. The institution or entity shall keep on file a record of the efforts 

made to locate such owners for inspection by appropriate governmental agencies.” Id. 
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exemption does not relieve an institution or entity of its contractual or other obligation to 

compensate the owners of sound recordings to be transferred.90

Michigan. Michigan’s record piracy statute provides: 

[A] person, without the consent of the owner, shall not transfer or cause to be 

transferred sound recorded on a phonograph record, disc, wire, tape, film, or 

other article on which sound is recorded, with the intent to sell or cause to be sold 

for profit or used to promote the sale of a product, the article on which the sound 

is so transferred.91 

... 

A person, knowing or having reasonable grounds to know that the sound thereon 

has been transferred without the consent of the owner, shall not advertise, sell, 

resell, offer for sale or resale, or possess for the purpose of sale or resale, an 

article that has been produced in violation of [the provision above].92

The Michigan law contains an exception for persons who transfer sound or cause it to be 

transferred when: 

 

 (a) Intended for or in connection with radio or television broadcast transmission or 

 related uses. 

 (b) For archival, library, or educational purposes. 

(c) Solely for the personal use of the person transferring or causing the transfer 

and without any compensation being derived by the person from the transfer.93 

New York. New York Penal Law provides criminal liability for a person who 

1. knowingly, and without the consent of the owner, transfers or causes to be 

transferred any sound recording, with the intent to rent or sell, or cause to be 

rented or sold for profit, or used to promote the sale of any product, such article 

to which such recording was transferred, or 

2. transports within this state, for commercial advantage or private financial 

gain, a recording, knowing that the sounds have been reproduced or transferred 

without the consent of the owner. . . .94

In addition, it is an offense if someone 

 

90 Id. 

91 MICH. COMP. LAWS ANN. § 752.782 (West 2011). 

92 Id. at §752.783. 

93 Id. §752.785. 

94 N.Y. PENAL LAW § 275.05 (McKinney 2011). This offense is entitled “Manufacture of unauthorized 

recordings in the second degree.” If done by someone who has been convicted of the same crime in the 

past five years, or who manufactures one thousand unauthorized recordings, it may qualify as a first degree 

offense with enhanced penalties. Id. § 275.10. 
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knowingly advertises, offers for sale, resale, or rental, or sells, resells, rents, 

distributes or possesses for any such purposes, any recording that has been 

produced or transferred without the consent of the owner. . . .95

The term “recording” is broadly defined to include any medium on which sound, images, 

or both can be recorded.96 There are exceptions in the law for (1) any broadcaster who transfers 

recorded sounds or images in connection with or as part of a radio, TV or cable broadcast, or for 

the purposes of archival preservation, and (2) for “any person who transfers such sounds or 

images for personal use, and without profit for such transfer.”97 The statute does not define the 

terms “broadcaster” or “archival preservation,” and there is no case law on this subsection that 

clarifies those terms. 

Tennessee. Under Tennessee law, it is unlawful for any person to: 

(A) Knowingly reproduce for sale or cause to be transferred any recording with 

intent to sell it or cause it to be sold or use it or cause it to be used for 

commercial advantage or private financial gain through public performance 

without the consent of the owner; 

(B) Transport within this state, for commercial advantage or private financial 

gain, a recording with the knowledge that the sounds on the recording have 

been reproduced or transferred without the consent of the owner; or 

(C) Advertise, offer for sale, sell or rent, cause the sale, resale or rental of, or 

possess for one (1) or more of these purposes any recording that the person 

 

95 Id. § 275.25. If done by someone who has been convicted of the same crime in the past five years, or the 

commission of that crime involved at least one thousand unauthorized sound recordings or at least one 

hundred unauthorized audiovisual recordings, it may qualify as a first degree offense with enhanced 

penalties. Id. § 275.30. Failure to disclose the origin of a recording is also an offense. Id. § 275.35. 

96 The definition in full provides: 

“Recording” means an original phonograph record, disc, tape, audio or video cassette, wire, film, 

hard drive, flash drive, memory card or other data storage device or any other medium on which 

such sounds, images, or both sounds and images are or can be recorded or otherwise stored, or a 

copy or reproduction that duplicates in whole or in part the original. 

Id. § 275.00(6). 

97 Id. § 275.45. 
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knows has been reproduced or transferred without the consent of the 

owner.98 

“Recording” for purposes of the statute includes sound recordings in any medium.99 

Tennessee law provides no statutory exceptions. 

b. Summary of state criminal record piracy provisions 

Commercial/For profit activity: All of the statutes cited above require sales or 

commercial or “for profit” use or intent as a predicate to liability, and that appears to be true for 

the great majority of criminal statutes.100 There are a small number of states, however, that do not 

explicitly require commercial activity for at least some offenses related to unauthorized use of 

pre-1972 sound recordings. For example, Alabama’s law makes it a felony to knowingly 

reproduce sound recordings (i.e., to “transfer or cause to be transferred . . . any sounds recorded”) 

without the consent of the owner onto any medium “now known or later developed” for recording 

sounds, with the intent to sell or rent the recordings “for commercial advantage or private 

financial gain” or “to be used for profit through public performance.”101 On the other hand 

Alabama also provides, without specific reference to commercial gain, that it is an offense “to 

manufacture, distribute, transport or wholesale” any recording with knowledge that the sounds or 

 

98 TENN. CODE. ANN. § 39-14-139(b)(1)(A–C) (2011). 

99 The Tennessee statute provides: 

“Recording” means a tangible medium on which sounds, images, or both are recorded or 

otherwise stored, including an original phonograph record, disc, tape, audio or video 

cassette, wire, film, memory card, flash drive, hard-drive, data storage device, or other 

medium now existing or developed later on which sounds, images, or both are or can be 

recorded or otherwise stored, or a copy or reproduction that duplicates, in whole or in 

part, the original. 

TENN. CODE. ANN. § 39-14-139(a)(6) (2011). 

100 See JASZI STUDY at 12 (regarding the meaning of “commercial”). 

101 ALA. CODE § 13A-8-81(a)(1) (2011). 
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performances thereon were transferred without the owner’s consent.102 Georgia law provides 

that it is unlawful to “transfer or cause to be transferred any sounds or visual images recorded on 

a phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual 

images are recorded onto any other phonograph record, disc, wire, tape, videotape, film, or 

article” without the consent of the owner of the master recording.103 There is no explicit 

requirement of commercial gain or intent to profit. However, the law does exclude copies made 

solely for the personal use of the copier, provided no profit is derived from the copying.104

Prohibited Activities. The formulation of prohibited activities varies from state to state. 

Almost all states prohibit the act of duplicating without authorization (often referred to as 

“transferring the sounds”). Most states also prohibit advertising or offering for sale, and selling 

or otherwise distributing the unauthorized recordings. Some states also criminalize activities 

such as transporting sound recordings within the state (or possessing them) with knowledge that 

they are unauthorized, with intent to sell them. 

Exceptions. The nature and number of exceptions available under criminal statutes vary 

from state to state. Most states have at least a few exceptions, the most common being exceptions 

for broadcasters to facilitate broadcast transmissions and/or for archival purposes, such as those 

found in the laws of California, Michigan and New York, discussed above.105 But “broadcaster” 

is often undefined and the exception is usually limited to radio and television broadcasting, 

although in some states cable transmissions are also included.106 

 

102 ALA. CODE § 13A-8-81(a)(3) (2011); see also JASZI STUDY at 24, 29. 

103 GA. CODE ANN. § 16-8-60(a)(1) (2011); see also IOWA CODE ANN. § 714.15 (West 2011); NEB. REV.

STAT. ANN. § 28-1323 (West 2011). 

104 GA. CODE ANN. § 16-8-60(c)(3) (2011). 

105 All ten states surveyed in the Jaszi Study had an exception for broadcasters. See JASZI STUDY at 10. 

106 See, e.g., DEL. CODE ANN. tit. 11, § 923(1) (West 2011); FLA. STAT. ANN. § 540.11(6)(a) (West 2011). 

North Carolina has extended its exception to webcasters. See N.C. GEN. STAT. § 14-433(c) (2010); JASZI 

STUDY at 10. 
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Many states (such as Michigan, whose statute is described above) also have an exemption 

for personal nonprofit or noncommercial use, sometimes limited to “in home” use.107 Several 

states (such as California and Michigan, cited above) have exceptions for educational or library 

uses,108 or for archival preservation that is not limited to broadcasters.109 And then there are 

exceptions provided by only one or a very few states, such as for judicial proceedings,110 law 

enforcement purposes,111 and even, in one case, for sound recordings of bird and wild animal 

calls.112

Even without a specific exception, in almost all cases activities that are not undertaken 

for commercial advantage or private financial gain will not be within the scope of potential 

criminal liability. However, as the Jaszi Study points out, “[t]he word ‘commercial’ . . . is subject 

to a multitude of interpretations” and it is possible for a nonprofit institution to receive 

commercial benefits in any number of ways.113

Nevertheless, there are two important considerations about the criminal laws that provide 

considerable comfort to users with respect to activities that would be permitted if federal law 

were applicable. First, criminal laws are strictly construed.114 So, where there is ambiguity, the 

law is likely to be construed in the user’s favor. Second, criminal laws are enforced by public 

 

107 See, e.g., COLO. REV. STAT. § 18-4-605(1)(b) (2011); MO. ANN. STAT. § 570.245(2) (West 2011). 

108 See, e.g., NEB. REV. STAT. ANN. § 28-1325(4) (West 2011); W. VA. CODE § 61-3-50 (2011). 

109 See, e.g., NEV. REV. STAT. ANN. § 205.217(3) (West 2010); R.I. GEN. LAWS ANN. § 42-8.1-7 (West 

2011). 

110 See, e.g., ALASKA STAT. § 45.50.900(b)(2) (2011); S.D. CODIFIED LAWS § 43-43A-4(3) (2011). 

111 See MASS. GEN. LAWS ch. 266, § 143D (2010). 

112 See S.C. CODE ANN. § 16-11-950 (2010). 

113 JASZI STUDY at 12. 

114 See, e.g., 73 Am. Jur. 2d Statutes § 194 (2011) (“Statutes imposing a penalty, or penal statutes, are 

generally subject to a strict construction”). 
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officials, who are unlikely to bring an action in circumstances that do not amount to commercial 

piracy. 

2. Civil Statutes 

A number of states have civil laws that address protection for pre-1972 sound recordings, 

directly or indirectly. Section 980(a)(2) of the California statute provides civil protection of pre1972 sound recordings and is a good example: 

The author of an original work of authorship consisting of a sound recording 

initially fixed prior to February 15, 1972, has an exclusive ownership therein 

until February 15, 2047, as against all persons except one who independently 

makes or duplicates another sound recording that does not directly or indirectly 

recapture the actual sounds fixed in such prior sound recording, but consists 

entirely of an independent fixation of other sounds, even though such sounds 

imitate or simulate the sounds contained in the prior sound recording.115

The few cases decided under § 980(a)(2) have viewed the section as conferring an 

intangible property interest in the sound recordings that can be protected in a misappropriation, 

conversion or unfair competition claim. They have distinguished the property interest protected 

by this statute from copyright protection which, under California law, terminates upon 

publication. 116 

 Other states may provide civil protection under common law, but have statutory 

limitations on those actions. For example, federal law permits states to protect pre-1972 sound 

recordings until 2067, but Colorado’s law provides that “no common law copyright shall exist for 

a period longer than fifty-six years after an original copyright accrues to an owner.”117 

California’s civil statute, cited above, provides protection only until 2047.118 

 

115 CAL. CIV. CODE § 980(a)(2) (West 2011). 

116 See, e.g., Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, 725 (9th Cir. 1984); 

A&M Records, Inc. v. Heilman, 75 Cal. App. 3d 554, 570 (Ct. App. 1977); see also JASZI STUDY at 34. 

117 COLO. REV. STAT. § 18-4-601(1.5) (2011). 

118 CAL. CIV. CODE § 980(a)(2) (West 2011). Delaware’s criminal piracy law provides protection only for 

a period of 50 years from the original fixation of a sound recording, but the law provides that it “shall 

neither enlarge nor diminish the rights of parties in civil litigation.” DEL. CODE ANN. tit. 11, §§ 923(3), 924 

(West 2011). 
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Those limitations may also address the relationship between private actions and the 

provisions of state criminal law. Some states specifically provide that there is a private right of 

action for violation of the state criminal piracy provision.119 A number of state laws specifically 

preserve civil actions by stating affirmatively that their criminal piracy law is not an exclusive 

remedy or that it does not abrogate civil actions.120 Other states simply provide that the criminal 

piracy law does not enlarge or diminish civil remedies.121

A few states specifically prohibit certain types of claims in connection with pre-1972 

sound recordings. For example, North Carolina has a statute that abrogates any common law 

rights to obtain royalties on the commercial use of sound recordings embodying musical 

performances once copies of the sound recordings are sold.122 Essentially, this statute denies any 

common law performance right in sound recordings.123 South Carolina has a similar law.124 

 

119 See, e.g., ALA. CODE § 13A-8-85 (2011); N.C. GEN. STAT. § 14-436 (2010). 

120 See, e.g., IDAHO CODE ANN. § 18-7607 (2011); LA. REV. STAT. ANN. § 14:223.4 (2011); OR. REV.

STAT. ANN. § 164.866 (West 2011). 

121 See, e.g., ARK. CODE. ANN. § 5-37-510(f) (2011); TENN. CODE ANN. § 39-14-139(h) (2011); WASH.

REV. STAT. ANN. § 19.25.020(3) (West 2011). 

122 North Carolina’s statute provides in full: 

When any phonograph record or electrical transcription, upon which musical performances are 

embodied, is sold in commerce for use within this State, all asserted common-law rights to 

further restrict or to collect royalties on the commercial use made of such recorded 

performances by any person is hereby abrogated and expressly repealed. When such article or 

chattel has been sold in commerce, any asserted intangible rights shall be deemed to have 

passed to the purchaser upon the purchase of the chattel itself, and the right to further restrict 

the use made of phonograph records or electrical transcriptions, whose sole value is in their 

use, is hereby forbidden and abrogated. Nothing in this section shall be deemed to deny the 

rights granted any person by the United States copyright laws. The sole intendment of this 

enactment is to abolish any common-law rights attaching to phonograph records and electrical 

transcriptions, whose sole value is in their use, and to forbid further restrictions of the 

collection of subsequent fees and royalties on phonograph records and electrical transcriptions 

by performers who were paid for the initial performance at the recording thereof. 

N.C. GEN. STAT. § 66-28 (2010). 

123 This statute was apparently passed in response to Waring v. Dunlea, 26 F. Supp. 338 (E.D.N.C. 1939). 

See JASZI STUDY at 85-86. Despite this broad language, the North Carolina Court of Appeals in 

Liberty/UA, Inc. v. Eastern Tape Corp., 180 S.E. 2d 414, 418 (N.C. Ct. App. 1971) held that the effect of 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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Finally, a number of states also have statutory unfair competition laws that may reach 

acts of record piracy if there is a likelihood of consumer confusion.125

3. Non-Statutory Causes of Action

Most states also have some form of non-statutory civil protection, although the precise 

nature of that protection varies from state to state. The two most prevalent theories for providing 

protection are common law copyright and misappropriation/unfair competition,126 but courts have 

also protected sound recordings under other legal theories, such as conversion.127 Sometimes 

people mistakenly refer to all forms of protection collectively as “common law copyright” or 

“common law protection.” But not all civil protection for sound recordings is common law – see 

the discussion of civil statutes, above – and a “common law copyright” claim differs from one 

grounded in unfair competition or conversion, as discussed below. 

a. Common law copyright 

The Nature of Common Law Copyright. Common law copyright refers to the protection 

historically provided by state law to unpublished works of authorship. It is not statutory, but is 

 the statute was to eliminate “any common law right to restrict the use of a recording sold for use in this 

State” and interpreted “use” to mean “the use for which a recording is intended; i.e. the playing of the 

recording.” The court ruled that playing the recording publicly or privately was permitted, but rerecording 

it for sale was not. 

124 See S.C. CODE ANN. § 39-3-510 (2010). 

125 See, e.g., 815 ILL. COMP. STAT. 510/2 (2011); OHIO REV. CODE ANN. § 4165.02 (West 2011); see also

JASZI STUDY at 14. 

126 “Unfair competition” embraces two principal torts: “passing off” and misappropriation. “Passing off” 

occurs when someone tries to market goods or services as those of another, to take advantage of the 

goodwill that the other person has developed in the marketplace. The misappropriation prong is more often 

applicable to unauthorized use of sound recordings, since generally the seller has no desire to mislead as to 

the source of the recordings, but rather wants to benefit from – i.e., misappropriate the value of – another’s 

investment of time, talent and money. Most misappropriation claims are now preempted under section 301 

of the Copyright Act, but those with respect to pre-1972 sound recordings survive because of section 

301(c). 

127 See JASZI STUDY at 4, 19. 
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judge-made law, developed through judicial decisions. For most works, common law copyright 

protection disappeared in 1978 when the unitary, federal system of copyright took effect and 

unpublished works were brought under the federal scheme. For pre-1972 sound recordings, 

however, common law copyright remains relevant. 

Traditionally, a work was protected by common law copyright only for as long as it was 

unpublished.128 Upon publication, if a work met the requirements of federal law (i.e., if it was 

published with a proper notice of copyright), it gained federal copyright protection. Otherwise, it 

went into the public domain. Sound recordings, however, were ineligible for federal protection 

until 1972. Rather than allow sound recordings to be thrust into the public domain when copies 

were distributed, states began amending their laws to ensure continued state protection, even 

though the recordings were published as defined by federal law. Some states, like New York, 

have done this by adapting their definition of “publication” so that sound recordings, regardless 

of how widely distributed copies may have been, would be deemed unpublished and therefore 

entitled to protection under the principles of common law copyright.129 Other states, such as 

California, simply protected sound recordings that were published or otherwise made widely 

available under a different legal doctrine, such as unfair competition.130 

Because common law copyright has long protected unpublished works, one might have 

reasonably expected states to confirm the application of common law copyright principles to the 

 

128 For clarity, the terms “published” and “publication” will be used as defined in federal copyright law 

unless otherwise specified: “‘Publication’ is the distribution of copies or phonorecords of a work to the 

public by sale or other transfer of ownership, or by rental, lease or lending.” 17 U.S.C. § 101. 

 

129 The Supreme Court in Goldstein held that federal law concerning publication had no application to state 

law, indicating that states were free to define publication as they wished for state law purposes. 412 U.S. at 

570 n.28. 

130 See, e.g., Lone Ranger Television, 740 F.2d at 726 (copies of radio broadcasts are not eligible for 

common law copyright protection but may still be protected pursuant to a conversion or unfair competition 

claim, which “lies outside copyright”). 
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pre-1972 sound recordings that remain unpublished.131 The reality is that there is little state law 

directed to unpublished sound recordings and nearly all of the state law cases involving pre-1972 

sound recordings involve commercially published sound recordings.132 

Recent Common Law Copyright Cases. The most notable case in recent years involving 

pre-1972 sound recordings was Capitol Records, Inc. v. Naxos of America, Inc.

133 At issue were 

recordings of classical music performances by Pablo Casals, Edwin Fischer and Yehudi Menuhin, 

originally made in the 1930s. Capitol, with a license from EMI, the successor of the original 

recording company, remastered the recordings, and was distributing them in the United States. 

Naxos obtained and restored the recordings in the UK, where they were in the public domain, and 

began marketing them in the United States in competition with Capitol. Capitol sued in federal 

court for unfair competition, misappropriation and common law copyright infringement. The 

district court granted summary judgment to Naxos because the recordings were in the public 

domain in the UK, where they were originally recorded. 

When that decision was appealed, the U.S. Court of Appeals for the Second Circuit 

concluded that New York law was unclear in some important respects and certified three 

questions of state law to the New York Court of Appeals (the highest court of the state): 

(1) whether expiration of the term of protection in the country of origin precluded 

common law copyright protection in New York; 

(2) whether a cause of action for common law copyright infringement includes 

some or all of the elements of a claim for unfair competition; and 

(3) whether a claim for common law copyright infringement is defeated by a 

demonstration that plaintiff’s work has little market value, and defendant’s work 

 

131 This is, of course, provided that any statute of limitations a state has provided with respect to such 

works has not lapsed. See, e.g., COLO. REV. STAT. § 18-4-601(1.5) (2011). 

132 Note, however, that the Jaszi Study examined cases addressing common law copyright, not only with 

respect to pre-1972 sound recordings, but also as they had developed with respect to unpublished works 

prior to 1978. 

133 4 N.Y.3d 540, 830 N.E.2d 250, 797 N.Y.S.2d 352 (N.Y. 2005). 
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can fairly be regarded as a new product, even though it uses components of 

plaintiff’s work.134

The New York Court of Appeals accepted the case, and held that foreign sound 

recordings remain protected under “common law copyright” in New York until 2067, even 

though they may be in the public domain in their home country. Concerning the second question, 

the court explained that a common law copyright claim in New York “consists of two elements: 

(1) the existence of a valid copyright; and (2) unauthorized reproduction of the work protected by 

copyright.”135 It went on to state that “[c]opyright infringement is distinguishable from unfair 

competition, which in addition to unauthorized copying and distribution requires competition in 

the marketplace or similar actions designed for commercial benefit.”136 

Concerning the final certified question, the court concluded that even if the original 

recordings had “slight if any current market” and Naxos’s work, because of the remastering, 

could fairly be regarded as a new product, it would not affect plaintiff’s ability to enforce a state 

law copyright claim.137 It ruled that Naxos’s remastered recording could still infringe Capitol’s 

copyright “to the extent that it utilizes the original elements of the protected performances.”138 It 

also observed in passing, with reference to federal copyright law, that Naxos’s recordings were 

not independent creations and that under the fair use doctrine, reproduction of an entire work is 

generally infringing.139

 

134 Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 484-85 (2d Cir. 2004), certified question 

accepted, 3 N.Y.3d 666, 817 N.E.2d 820, 784 N.Y.S.2d 3 (N.Y. 2004), and certified question answered, 4 

N.Y.3d 540, 830 N.E.2d 250, 797 N.Y.S.2d 352 (N.Y. 2005). 

135 830 N.E.2d at 266. 

136 Id. 

137 Id. at 266-67. 

138 Id. at 267. 

139 Id. 
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In EMI Records Ltd. v. Premise Media Corp.,

140 a New York trial court, ruling on a 

motion for a preliminary injunction, considered the applicability of the fair use defense to a claim 

for infringement of common law copyright in a sound recording. Defendants had used an excerpt 

of John Lennon’s “Imagine,” a pre-1972 sound recording, in a documentary film entitled 

“Expelled.” The film attempts to counter criticism of the theory of intelligent design. The 99-

minute documentary used a 15-second excerpt from Lennon’s 3-minute sound recording. 

Plaintiffs argued that under common law copyright, any unauthorized use of a sound 

recording is actionable. Defendants argued that only a reproduction of the complete recording 

was an infringement. The court rejected both claims, but ultimately concluded that plaintiffs had 

established a prima facie claim of common law copyright infringement.141 The court observed 

that New York cases have acknowledged the existence of a fair use defense to common law 

infringement claims but that no case had actually applied fair use in that context.142 The court 

recognized that fair use was generally unavailable as a defense with respect to unpublished 

works, principally to protect the copyright owner’s right of first publication.143 In the case of 

sound recordings, however, common law copyright protection exists regardless of publication, 

reasoned the court. “Thus, the erosion of the publication distinction in the context of sound 

recordings vitiates the underlying rationale preventing application of pre-publication fair use.”144 

Accordingly, the court held that fair use was available as a defense to plaintiffs’ copyright 

infringement claim. 

 

140 2008 N.Y. Misc. Lexis 7485 (N.Y. Sup. Ct. Aug. 8, 2008). 

141 Id. at *9. 

142 Id. at *10. 

143 Id. at *13 (citing Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 551 (1985)). 

144 Id. at *14. 
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The court turned for guidance to the federal law of fair use and specifically to the fair use 

factors in 17 U.S.C. § 107 and the cases interpreting them.145 The court ruled that defendants 

were likely to prevail on their fair use defense, primarily because the use of the sound recording 

excerpt in the film could be seen as transformative, conveying a critical message about the song 

and the viewpoint it represents, and because there was little likely market effect from defendants’ 

use. Accordingly, the court denied the preliminary injunction.146

Although just a trial court decision on a preliminary injunction motion, the EMI case 

illustrates a judicial willingness to recognize a fair use defense in a common law copyright 

infringement action, at least when recordings have been made available to the public.147 

b. Unfair competition/misappropriation

Many states have protected published pre-1972 sound recordings under common law 

unfair competition principles. The tort of unfair competition has evolved over time. 

Traditionally, three elements were required to establish the tort: (1) the plaintiff and defendant 

had to be in competition with one another; (2) the defendant must have “appropriated a business 

asset that plaintiff had acquired by the investment of skill, money, time and effort”; 148 and (3) the 

 

145 Id. at *18. The statutory factors, set out in 17 U.S.C. § 107, are: 

(1) the purpose and character of the use, including whether such use is of a commercial nature or 

is for nonprofit educational purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a 

whole; and 

(4) the effect of the use upon the potential market for or value of the copyrighted work. 

146 The court also denied defendants’ motion to dismiss, holding that plaintiffs had adequately pleaded 

both common law copyright infringement and unfair competition because they argued, inter alia, that 

defendants used the recording in a manner that falsely suggested to the public that the use was authorized 

by the right holder. Id. at **38, 40. 

147 Fair use developed as a common law doctrine, and only became part of the federal copyright statute in 

the 1976 Copyright Act. See, e.g., Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841). 

148 Ringer at 17. 
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defendant must have fraudulently “passed off” or “palmed off” the appropriated assets as those of 

plaintiff, causing the public to be confused as to the source of the goods.149

Over time the courts in many (but not all) states dispensed with the requirement of 

“passing off” in cases involving misappropriation in general (and sound recordings in particular), 

in part because it is difficult to establish: “there is rarely any incentive for the appropriator to 

represent the recording as anything except exactly what it is.”150 In order to achieve equitable 

results, some courts also dispensed with the requirement of competition, because it is difficult for 

performers to establish that they are in competition with the appropriator. So the core of the tort 

as it applies to sound recordings is the misappropriation of plaintiff’s business asset.151 Some 

courts still refer to this tort as unfair competition, others as misappropriation. 

The following cases – from California, Illinois, Michigan, New Jersey and North 

Carolina – illustrate the application of unfair competition principles to sound recordings.152

 

149 Id.; see, e.g., Victor Talking Mach. Co. v. Armstrong, 132 F. 711 (S.D.N.Y. 1904). 

150 Ringer at 17. In many cases defendants tried to escape liability by affixing distinctive labels to avoid 

the charge of passing off, but those efforts were generally unavailing, as courts held that a claim for unfair 

competition could still lie. Compare Columbia Broadcasting System, Inc. v. Melody Recordings, Inc., 341 

A.2d 345 (N.J. App. Div. 1975) and Capitol Records v. Erickson, 2 Cal. App. 3d 526 (Ct. App. 1969) with

ABKCO Music, Inc. v. Washington, 2011 U.S. Dist. LEXIS 120081 (E.D. Mich. Oct. 18, 2011) (discussed 

below). 

151 Id. “Passing off” remains a viable cause of action. Common law unfair competition in effect evolved 

into two principal torts: passing off, which requires a showing of consumer confusion, and 

misappropriation, which does not. 

152 Prior to Capitol Records v. Naxos, New York courts also protected pre-1972 sound recordings on 

common law unfair competition grounds. See, e.g., Arista Records, Inc. v. MP3Board, Inc., 2002 U.S. Dist. 

Lexis 16165, at **36-37, 2002 WL 1997918 (S.D.N.Y. Aug. 29, 2002) (plaintiff stated a claim for unfair 

competition under New York law against operator of an internet site that provided users with pirated copies 

of plaintiff’s pre-1972 musical recordings); Capitol Records, Inc. v. Greatest Records, Inc., 252 N.Y.S.2d 

553 (Sup. Ct. 1964) (entering temporary injunction against manufacture and distribution of unauthorized 

reproductions of Beatles albums and holding, inter alia, that the application of state unfair competition law 

to this field remains intact after the Supreme Court’s decisions in Sears, Roebuck & Co. v. Stiffel Co. and 

Compco Corp. v. Day-Brite Lighting, Inc.). In several of the cases discussed above, the courts struggled 

with the question whether Sears and Compco precluded a state law unfair competition claim with respect 

to sound recordings, and ultimately concluded that they did not. The Supreme Court in Goldstein 

concluded that those cases did not pose a bar to state protection of sound recordings. 412 U.S. at 569-70. 
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In Capitol Records, Inc. v. Erickson,

153 the court held that relief on the grounds of unfair 

competition could be granted in circumstances where someone “unfairly appropriates to his profit 

the valuable efforts of his competitor” even where the defendant did not “palm off” his products 

as those of his competitor.154 The defendant had purchased tapes and recordings sold by the 

plaintiff, remastered them, and then sold tapes made from the new masters in competition with 

the plaintiff. The California trial court granted the plaintiff’s motion for a preliminary injunction, 

and the appellate court affirmed. The plaintiff had argued that labels on the tapes it sold, 

disclaiming any relationship with the plaintiff or the recording artists, protected it from a claim of 

unfair competition, a contention rejected by the court. Although there was a question of fact as to 

whether the labels were effective, the court found that the rights involved were not merely those 

of the public not to be misled but also rights as between plaintiff and defendant. The court 

concluded that defendant “unfairly appropriate[d] artistic performances produced by Capitol’s 

efforts” and “profit[ed] thereby to the disadvantage of Capitol.”155

In Capitol Records, Inc. v. Spies,156 an Illinois appellate court held that the unauthorized 

recording and resale of commercial sound recordings constituted wrongful appropriation and 

unfair competition. The defendant had purchased plaintiff’s records and tapes in retail stores, 

then made and sold 1500 unauthorized copies. The court cited several cases, including Capitol 

Records v. Erickson, discussed above, in support of its conclusion that defendants had engaged in 

unfair competition. In the court’s view, the unfairness inhered in the fact that the defendants 

waited until the recordings, created by the plaintiff at great expense, became popular, and then 

appropriated the plaintiffs’ products to take advantage of the existing market. 

 

153 2 Cal. App. 3d 526 (Ct. App. 1969). 

154 Id. at 537-38. 

155 Id. at 537. 

156 264 N.E.2d 874 (Ill. App. Ct. 1970). For further discussion of this case, see BESEK COMMERCIAL 

SOUND RECORDINGS STUDY App. n.13 and accompanying text. 
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In A&M Records, Inc. v. M.V.C. Distributing Corp.,157 the U.S. Court of Appeals for the 

Sixth Circuit upheld the district court’s ruling that defendant’s alleged conduct constituted unfair 

competition under the common law of Michigan, rejecting defendant’s claim that plaintiffs lost 

their common law property rights when they distributed their recording.158 The defendants had 

engaged in unauthorized duplication of the plaintiff’s sound recordings, which the defendants 

distributed under a different label. On the other hand, in ABKCO Music v. Washington,

159

decided in October 2011, a Michigan district court concluded that the gist of an unfair 

competition claim is “that the public is so misled that plaintiff loses some trade by reason of the 

deception.”160 The court denied summary judgment to plaintiffs on their claim of unfair 

competition based on defendants’ use of plaintiffs’ pre-1972 sound recordings in an online 

audiovisual advertisement for a play. The plaintiffs claimed that the ad led the public to believe 

that the plaintiffs sponsored or supported the advertisement and the play. But in the court’s view, 

they provided no evidence to back up their allegations, nor did they cite case law to support a 

finding that defendants can be liable under a common law unfair competition theory for such 

conduct. 

In Columbia Broadcasting System Inc. v. Melody Recordings, Inc.,161 a record piracy case 

that arose in New Jersey, the court affirmed the trial court’s grant of summary judgment to CBS 

on common law unfair competition grounds, rejecting the defendants’ claim that because their 

 

157 574 F.2d 312 (6th Cir. 1978). 

158 Id. at 314. 

159 2011 U.S. Dist. LEXIS 120081 (E.D. Mich. Oct. 18, 2011). 

160 Id. at *30 (citing Revlon, Inc. v. Regal Pharmacy, Inc., 29 F.R.D. 169, 174 (E.D. Mich. 1961)). 

161 341 A.2d 348 (N.J. Super. Ct. App. Div. 1975). 
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recordings were clearly labeled, there was no palming off and therefore no unfair competition.162 

The court observed that: 

The actionable unfairness of this practice inheres in a combination of factors—

the substantial investment of time, labor, money and creative resources in the 

product by plaintiff, the utilization of the actual product by defendant, the 

misappropriation or use of the appropriated product by defendant in competition 

with plaintiff, and commercial damage to plaintiff.163

In Liberty/UA, Inc. v. Eastern Tape Corp.,164 a North Carolina appellate court held that 

record piracy constitutes unfair competition in that state. Defendants had copied plaintiff’s 

records onto tapes and sold the tapes in competition with plaintiff. According to the court, 

defendants’ appropriation of the fruits of plaintiff's initiative, skill, and investment provided them 

with a significant competitive advantage over plaintiff and damaged plaintiff’s business.165 The 

court found that “[t]his conduct . . . amounts to unfair competition and is subject to restraint.”166 

Defendants also argued that the North Carolina statute mentioned above (which abrogates any 

common law rights to obtain royalties on the commercial use of sound recordings embodying 

musical performances once copies of the sound recordings are sold)167 precluded the court from 

holding that defendants’ conduct constituted unfair competition. The court held that the statute 

was designed to eliminate any common law right that would restrict playing a recording sold for 

use in the state. But to hold that the statute permitted duplicating a recording and selling it in 

 

162 CBS had sued the defendants, who were copying CBS recordings and selling them – with defendants’ 

own distinctive label – to distributors. 

163 Id. at 354. The court also rejected defendants’ contention that the Supreme Court’s decision in 

Goldstein permitted the states to regulate only through statutes, and not by common law. Id. at 351. 

164 180 S.E.2d 414 (N.C. Ct. App. 1971). 

165 Id. at 415-16. 

166 Id. at 416. 

167 See N.C. GEN. STAT. § 66-28 (2010). See supra note 122 for the full text of the statute. 
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competition with the original “would, in our opinion, give a construction to the statute that was 

never intended.”168 

Not all states have civil statutes or reported cases dealing specifically with the 

unauthorized use of sound recordings, but states generally recognize unfair competition torts, so 

presumably a cause of action could lie in appropriate circumstances. 

c. Conversion

The tort of conversion generally applies to the unauthorized and wrongful assumption of 

control of another’s personal property in a way that seriously interferes with or effectively 

repudiates the owner’s rights.169 While in most states conversion applies only to tangible 

property and not to intellectual property,170 a few states have recognized conversion claims with 

respect to the unauthorized duplication and distribution of pre-1972 sound recordings. 

For example, in A & M Records, Inc. v. Heilman171 defendant duplicated plaintiff’s 

records and tapes and distributed them without authorization. The California appellate court 

affirmed judgment for plaintiff, stating defendant’s conduct constituted unfair competition even 

though there was no “palming off.”172 The court further concluded that the “misappropriation and 

sale of the intangible property of another without authority from the owner is conversion.”173 

Accordingly, the court held that there was a valid basis for placing a constructive trust on the 

money defendant made from selling copies of plaintiff’s recordings. 

 

168 Liberty/UA, 180 S.E.2d at 418. 

169 18 Am. Jur. 2d Conversion § 1 (2004). 

170 JASZI STUDY at 19 (citing 1 NIMMER ON COPYRIGHT § 1.01[B][1][i]). 

171 75 Cal. App. 3d 554 (1977). 

172 Id. at 564. 

173 Id. at 570. 
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In CBS, Inc. v. Garrod,

174 another record piracy case, the court granted plaintiff’s motion 

for partial summary judgment on its conversion claim, holding that “[i]n Florida, an action for 

conversion will lie for a ‘wrongful taking of intangible interests in a business venture.’”175

4. Right of Publicity

The right of publicity protects against unauthorized use of someone’s identity, which in 

some cases has been held to include duplication of a voice – at least where the voice is distinctive 

and recognizable. Many states protect an individual’s right of publicity though statutes, common 

law, or both, although such protection may flow from privacy laws rather than laws specifically 

denominated “right of publicity.” For example, New York protects the right of publicity by 

means of section 51 of its Civil Rights Law, which prohibits, inter alia, use of a person’s “name, 

portrait, picture or voice . . . within [New York] for advertising purposes or for the purposes of 

trade” without that person’s consent.176 New York does not, however, recognize any common 

law right of publicity claims. Michigan has no statutory right of publicity, but does recognize 

common law right of publicity.177 California provides both statutory protection for the right of 

publicity (which extends to name, voice, signature, photograph or likeness)178 and common law 

protection, which may extend to aspects of an individual’s persona that its statute does not 

reach.179 

 

174 622 F. Supp. 532 (M.D. Fla. 1985), aff'd, 803 F.2d 1183 (11th Cir. 1986). 

175 Id. at 536 (citing In re Estate of Corbin, 391 So.2d 731, 732-33 (Fla. Dist. Ct. App. 1980)). The court 

also granted summary judgment on plaintiff’s other claims, including common law copyright, unfair 

competition and statutory theft. 

176 N.Y. CIV. RIGHTS LAW § 51 (McKinney 2011). Section 50 of New York’s Civil Rights Law is an 

accompanying criminal provision. Id. § 50. 

177 See, e.g., Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 834 n.1 (6th Cir. 1983). 

178 CAL. CIV. CODE § 3344 (West 2011). 

179 See, e.g., White v. Samsung Electronics America, 971 F.2d 1395, 1398 (9th Cir. 1992) (reversing 

summary judgment against game show hostess Vanna White in connection with an ad showing a blond 
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Although a few states, such as New York and California, explicitly include “voice” 

among the attributes of identity entitled to protection, most do not.180 Some state laws do not list 

specific protectable attributes, but extend generally to, for example, “aspect[s] of an individual’s 

persona.”181 In such cases, a distinctive voice might be entitled to protection even though “voice” 

is not specifically mentioned in the law. In certain circumstances, state courts have extended 

protection to forbid sound-alike recordings, thus providing broader protection than federal law 

provides for copyright-protected sound recordings.182 

In general the right of publicity protects against use of someone’s identity for advertising 

or commercial purposes.183 Record piracy clearly qualifies as use for commercial purposes, and 

therefore in some states a right of publicity claim might be asserted based on use of the 

performer’s voice. Nevertheless, plaintiffs in state law record piracy cases have generally relied 

instead on common law copyright and unfair competition claims.184 Presumably this is in part 

because the right of publicity concerns not the use of a particular sound recording per se, but 

rather the use or imitation of a particular performer’s voice, sometimes in connection with the 

imitation of a particular recording. The owner of the right of publicity – the performer – will not 

 robot in conjunction with a game board, and holding that the common law right of publicity “does not 

require that appropriations of identity be accomplished through particular means to be actionable”). 

180 See, e.g., FLA. STAT. § 540.08 (2011) (protecting name, portrait, photograph, or other likeness); VA.

CODE ANN. § 8.01-40(A) (2011) (protecting name, portrait, picture). 

181 OHIO REV. CODE ANN. § 2741.02 (West 2011); see also 765 ILL. COMP. STAT. 1075/30 (2011) 

(protecting a person’s “identity”). 

182 Compare Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir. 1988) (applying common law right of 

publicity to protect widely known professional singer from deliberate imitation of her distinctive voice in 

television advertisement) with 17 U.S.C. § 114(b) (exclusive right of the owner of a sound recording is 

limited to the right to duplicate in a manner that recaptures the actual sounds fixed in the recording). 

183 See, e.g., FLA. STAT. § 540.08 (2011) (providing protection against use of a person’s name, portrait, 

photograph or other likeness “for any commercial or advertising purpose”); 765 ILL. COMP. STAT. 

§ 1075/10 (2011) (providing protection against use of an individual’s identity “for commercial purposes”); 

N.Y. CIV. RIGHTS LAW § 51 (McKinney 2011) (providing protection against use of someone’s name, 

portrait, picture or voice “for advertising purposes or for purposes of trade”). 

184 For a further discussion of state law rights of publicity in the context of pre-1972 sound recordings, see

JASZI STUDY at 20-22. 
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necessarily be the owner of the common law rights in the recording or have standing to assert an 

unfair competition claim based on unauthorized use of the recording. 

 

5. Variations among States with Respect to Civil Claims: Rights and 

Exceptions 

There are significant variations among states (and ambiguities in the law within states) 

concerning (1) the nature of the activities that might be deemed to unfairly compete with another 

or violate a common law copyright – i.e., whether the “bundle of rights” is similar under state and 

federal law; and (2) whether exceptions exist under state civil law for certain uses, as they do 

under federal copyright law. 

Concerning the former point, most of the reported cases deal with reproduction and 

distribution of copies of sound recordings, and it is clear that state law rights extend to such 

activities. But because most cases involve reproduction and distribution of entire recordings, 

there is no developed body of law addressing whether a “derivative work right” can be said to 

exist. A few cases suggest that copying less than an entire recording can be infringing. For 

example, in EMI Records, Ltc. v. Premise Media Corp.,

185 discussed above, the court rejected 

defendant’s argument that common law copyright protected only against reproduction of an entire 

sound recording, although it ultimately concluded that defendants’ copying of 15 seconds of 

plaintiffs’ recording was fair use. In Bridgeport Music, Inc. v. Justin Combs Publishing,

186 the 

court upheld a jury verdict against a defendant that sampled a portion of a pre-1972 sound 

recording in a new work. And in Capitol Records v. Naxos, discussed above, one of the questions 

certified to the New York Court of Appeals was whether a claim of common law copyright 

infringement was defeated by showing that plaintiff’s work has little market value and 

 

185 2008 N.Y. Misc. LEXIS 7485 (Sup. Ct. Aug. 8, 2008). See discussion supra in text accompanying 

notes 140-146. 

186 507 F.3d 470 (6th Cir. 2007). 
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“defendant’s work, although using components of plaintiff’s work, is fairly to be regarded as a 

‘new product.’”187 The court concluded, in the context of common law copyright, that “even 

assuming that Naxos has created a ‘new product’ due to its remastering efforts that enhance 

sound quality, that product can be deemed to infringe on Capitol’s copyright to the extent that it 

utilizes the original elements of the protected performances.”188

A different result might prevail, however, if the claim were based in unfair competition 

rather than common law copyright. The federal district court that first heard the Capitol Records 

v. Naxos case dismissed plaintiff’s unfair competition claim for several reasons, among them that 

Naxos was not merely duplicating the recordings and capitalizing on plaintiff’s efforts, as was the 

situation in most record piracy cases.189 Instead, the court concluded that Naxos had invested 

significant time, effort and money to produce high-quality restorations, of plaintiff’s recordings, 

which could not have been marketed in their pre-existing state.190 While the New York Court of 

Appeals effectively reversed this case, the federal district court decision suggests that a derivative 

work right is on less certain ground where the asserted claim is unfair competition rather than 

common law copyright. 

In general, state law does not appear to recognize a performance right in sound 

recordings. The Pennsylvania Supreme Court in Waring v. WDAS Broad. Station191 suggested 

that one could obtain indirect public performance rights in sound recordings through the use of a 

restrictive legend on the sound recording prohibiting radio broadcast. Yet other states rejected 

 

187 830 N.E.2d at 254. 

188 Id. at 267. 

189 Capitol Records, Inc. v. Naxos of America, 262 F. Supp. 2d 204 (S.D.N.Y. 2003), summary judgment 

granted, 274 F. Supp. 2d 472 (S.D.N.Y. 2003), question certified, 372 F.3d 471 (2d Cir.), certified question 

accepted, 3 N.Y.3d 666, 817 N.E.2d 820, 784 N.Y.S.2d 3 (N.Y. 2004), and certified question answered, 4 

N.Y.3d 540, 830 N.E.2d 250, 797 N.Y.S.2d 352 (N.Y. 2005). 

190 262 F. Supp. 2d at 214-15. 

191 194 A. 631 (Pa. 1937). 
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this conclusion. For example, in RCA Mfg. Co. v. Whiteman,

192 the Second Circuit declined to 

follow Waring v. WDAS and held that a record company had no power to impose such a 

restriction on use of the sound recordings because the common law property right in the 

performances ended with the sale of the records. 

In Waring v. Dunlea, a federal district court in North Carolina did enforce a restrictive 

legend on sound recordings.193 However, shortly after the case was decided, North Carolina 

enacted a statute that effectively overruled it.194 South Carolina also enacted a statute to deny a 

public performance right in sound recordings.195

Until 1995 there was no public performance right in sound recordings under federal law, 

and it does not appear that, in practice, pre-1972 sound recordings had such protection. The 

current right provided by federal law applies only to digital audio transmissions (not to 

broadcasts) of copyrighted sound recordings. It is possible that a state court would entertain a 

claim for unfair competition or common law copyright infringement if, for example, it were faced 

with a claim that pre-1972 sound recordings were being made available through internet 

streaming, particularly if it were persuaded that the use was substituting for purchases of the 

plaintiff’s recording. But no such case has yet arisen.196 

 

192 114 F.2d 86, 89-90 (2d Cir. 1940). 

193 Waring v. Dunlea, 26 F. Supp. 338, 339 (E.D.N.C. 1939). 

194 N.C. GEN. STAT. § 66-28 (2010), passed in 1939 and discussed in Liberty/UA, 180 S.E. 2d at 418. The 

court interpreted the statute to deny only public performance rights, but not reproduction rights. See id. 

195 S.C. CODE ANN. § 39-3-510 (2011). This law, originally passed in 1942, remains on the books. See

Ringer at 9; Michael Erlinger, Jr., An Analog Solution in A Digital World: Providing Federal Copyright 

Protection for Pre-1972 Sound Recordings, 16 UCLA ENT. L. REV. 45, 55 (2009). 

196 It appears that at least some webcasters are making royalty payments for the use of pre-1972 sound 

recordings as part of the statutory royalties they pay to SoundExchange in connection with the digital 

performance of sound recordings pursuant to sections 112 and 114. SoundExchange at 4. Presumably this 

is done to diminish the risk that their webcasting of pre-1972 sound recordings might be considered 

actionable under state law. 
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As for exceptions, where state law is statutory there may be explicit exceptions, but not 

of the nature and scope of those provided in federal copyright law, as illustrated above in the 

discussion of state criminal and civil statutes. Where protection derives from common law, it is 

difficult to draw any conclusions about available exceptions, since most of the cases involve 

commercial, for-profit duplication and sale of complete sound recordings that substitute for sales 

by the right holders. So the courts have had little opportunity to define exceptions. EMI v. 

Premise Media indicates that common law courts are willing to apply the fair use doctrine in 

appropriate circumstances, but it is a single trial court decision. 

6. Availability of Punitive Damages for State Law Claims

In those states that allow punitive damages in tort cases, a plaintiff who is successful on a 

claim for unfair competition may recover punitive damages.197 Nimmer on Copyright states that 

punitive damages may also be available for common law copyright claims: “Even though 

punitive damages are not available for statutory copyright infringement, in the residual domain of 

common law copyright, exemplary damages may be recovered.”198 In some cases, punitive 

damages have been awarded in connection with unauthorized uses of pre-1972 sound recordings. 

For example, in Bridgeport Music v. Justin Combs Publishing,

199 the court affirmed a jury verdict 

in which defendants were held liable for sampling plaintiff’s pre-1972 sound recording in 

defendant’s recording. Applying New York law, the Sixth Circuit held that “punitive damages 

for common law copyright infringement and unfair competition are available ‘where a wrong is 

 

197 Restatement (3d) of Unfair Competition, § 36, comment (n); Thomas McCarthy, MCCARTHY ON 

TRADEMARKS AND UNFAIR COMPETITION § 30:96 (4th ed. 2009). 

198 4-14 NIMMER ON COPYRIGHT § 14.02[C][2]. See, e.g., Roy Export Co. Establishment v. Columbia 

Broadcasting System, Inc., 503 F. Supp. 1137 (S.D.N.Y. 1980), aff’d, 672 F.2d 1095 (2d Cir.); Williams v. 

Weisser, 273 Cal. App. 2d 726, 743 (1969). In addition, “Under the law of most states, punitive or 

exemplary damages may be obtained in privacy and publicity suits.” 2 Thomas McCarthy, RIGHTS OF 

PUBLICITY AND PRIVACY § 11:36 (2d ed). 

199 507 F.3d 470 (6th Cir. 2007). 
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aggravated by recklessness or willfulness.’”200 However, it vacated the damages award as grossly 

excessive.201 In GAI Audio of New York, Inc. v. Columbia Broadcasting System, Inc., a Maryland 

appellate court affirmed the jury’s award of punitive damages in a record piracy case where the 

“acts of unfair competition were practiced intentionally, wantonly and without legal justification 

or excuse.” 202

7. Summary: Use of Pre-1972 Sound Recordings under State Law 

There are several important points to be drawn from this brief discussion. First, state 

laws that relate to sound recordings are inconsistent. The variations in state criminal laws are 

discussed above. Concerning civil law, some states have statutes that address the unauthorized 

use of pre-1972 sound recordings. In most states, common law torts provide protection. Where 

the basis is unfair competition or misappropriation, the claims that can be brought under state law 

may be more limited than those that could be brought under federal copyright law, particularly in 

a state that still requires competition or passing off as part of the tort. The requirement in unfair 

competition cases that commercial harm to the right holder (and/or commercial benefit to the 

user) be established also limits possible claims. As a practical matter, many sound recordings 

will lose protection over time as their commercial value diminishes, even though state law can 

theoretically protect sound recordings until 2067. A few states terminate protection for sound 

recordings before 2067, but that may be of little value to users whose uses go beyond the state’s 

border. 

 

200 Id. at 479-80 (quoting Roy Export Co. v. CBS, Inc., 672 F.2d 1095, 1106 (2d Cir. 1982)). 

201 See id. at 486-90. On remand the district court remitted the amount of punitive damages to $688,500 

(twice the amount of compensatory damages) instead of the $3.5 million the jury had awarded. Westbound 

Records, Inc. v. Justin Combs Publishing, Inc., 2009 U.S. Dist. LEXIS 29507, **5-8, 2009 WL 943516 

(M.D. Tenn. Apr. 3, 2009). 

202 340 A.2d 736, 755 (Md. App. 1975); see also A&M Records v. Heilman, 75 Cal. App. 3d 554, 571 

(1977) (affirming award of punitive damages in a record piracy case where there was an “intentional 

pattern of misappropriation of property owned by others” as well as contempt of court). 
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Common law copyright provides greater protection for right holders, and 

correspondingly, greater challenges for users. For example, New York has chosen to provide 

common law protection for pre-1972 sound recordings, whether or not the recordings have been 

published. 

Many other states simply have no civil law directly on point, so it is difficult to know 

how they might protect pre-1972 sound recordings. Even states that protect published recordings 

through unfair competition and similar torts may protect unpublished recordings under common 

law copyright. 

One complicating factor is that common law protection is amorphous, and courts often 

perceive themselves to have broad discretion. So it is sometimes hard to know whether new uses 

might be problematic. As the Supreme Court of Wisconsin stated in permitting plaintiffs to 

proceed with an unfair competition claim for record piracy in the face of defendants’ argument 

that the state could act in this area only through the legislature: “We conclude that it is the duty 

of this court to act in circumstances where it is apparent that a wrong has been committed. . . .”203 

The court observed that “‘unfair competition has evolved as a broad and flexible doctrine with a 

capacity for further growth to meet changing conditions.’”204 

In short, the protections that state law provides for pre-1972 sound recordings are 

inconsistent and sometimes vague and difficult to discern. The laws lack clearly delineated 

exceptions, making it hard for users to predict with assurance the range of activities that are 

permissible and those that are likely to result in liability. In many states, activities concerning 

sound recordings that are not conducted for profit and have no commercial impact on the right 

holder are unlikely to result in liability. But the differences and ambiguities in state laws make it 

 

203 Mercury Record Productions, Inc. v. Economic Consultants, Inc., 64 Wis.2d 163, 218 N.W.2d 705, 

715-16 (Wis. 1974). 

204 Id. at 716 (quoting Metropolitan Opera Ass'n v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 

N.Y.S.2d 483, 488 (Sup. Ct. 1950), aff'd, 107 N.Y.S.2d 795 (App. Div. 1951). 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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difficult to undertake multistate or nationwide activities, particularly for individuals and entities 

that are risk-averse or that lack the ability to conduct detailed legal analyses for each proposed 

new use. 
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50

 Lacquer disc 

III. APPRECIATING THE CHALLENGES OF PRESERVATION AND ACCESS 

A. The Nature of Pre-1972 Sound Recordings 

 The recordings addressed in this Report encompass every conceivable sound, from one 

person talking, to music played by orchestras of over 100 pieces; from a primitive wax cylinder 

field recording to the detailed sound-picture of a multitrack analog studio recording; from the 

music of small ethnic enclaves to million-selling pop hits; from improvisation to composition, 

and so on. Notably, unlike other works of authorship protected by federal copyright law, virtually 

no pre-1972 sound recordings have entered the public domain throughout the United States. State 

criminal and civil law appear to protect almost everything back to the very first sound recordings 

known to exist. 

1. Commercial and Noncommercial Recordings

 While the first sound recording is now known to have been fixed in 1860 by Frenchman 

Edourd-Leon Scott de Martinville,205 sound recording in the United States famously began in 

 

205 NRPB REPORT at 1. 
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1877 with Thomas Edison’s invention of the phonograph.206 However, the sale of recorded sound 

did not get underway until 1889 when the North American Phonograph Co. first offered recorded 

music for public sale. It was joined later that year in the marketplace by the new Columbia 

Phonograph Co.207 Sound recordings in the early years of the industry were manufactured on 

wax cylinders. Cylinders in the 1890s contained a single selection and sold – like single MP3s do 

today – for between $1 and $2.208 However, most early-1890s cylinders were not heard in private 

homes but on public phonographs – the predecessors to jukeboxes – for a nickel.209 In the early 

years of the 20th century, cylinders gave way to discs, which were easier to mass-produce, 

cheaper, more durable, and could hold twice as much music as an Edison cylinder, and a new 

breed of celebrity – the recording artist – emerged.210 The disc – in varying sizes and durability – 

remained the primary consumer medium for sound recordings through 1972,211 although the 

media upon which the recordings were made went through myriad changes over time before 

settling on multitrack magnetic tape. 

 Commercial music recordings tend to dominate discussions of copyright in sound 

recordings because of their popularity, their tendency to create emotional attachments, and their 

existence as the basis for a multi-billion dollar international industry, but they account for only a 

 

206 See, e.g., WALTER L. WELCH & LEAH BRODBECK STENZEL BURT, FROM TINFOIL TO STEREO 8-18 

(1994). 

207 See Tim Brooks, Columbia Records in the 1890s: Founding the Record Industry, 10 ASS’N FOR 

RECORDED SOUND COLLECTIONS JOURNAL, No. 1, 3, 5-6 (1978). 

 

208 See id. at 9. 

209 See id.

210 See, e.g., DAVID SUISMAN, SELLING SOUNDS: THE COMMERCIAL REVOLUTION IN AMERICAN MUSIC 

125-49 (2009). 

211 Of course, discs, either vinyl or compact, continued to be the primary medium well after 1972, but this 

report is only concerned with pre-1972 works. 
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small percentage of all pre-1972 works.212 Noncommercial recordings, such as ethnographic field 

recordings, oral histories, private home recordings, and scientific audio experiments, while not as 

evident to the general public, are an enormous source of cultural and historical information, and 

come with their own unique copyright issues. 

 The first ethnographic recordings were made one year after the first commercial 

recordings, in 1890. Anthropologist Jesse Walter Fewkes recorded songs and speech from the 

Passamaquoddy, Zuni, and Hopi tribes with a wind-up Edison cylinder recorder.213 Field 

recordings from 1890 into the 1930s exist mainly on wax cylinders. With the advent of the 

portable disc cutter, ethnomusicologists made their transcriptions on discs of varying quality, and 

once audiotape was made available commercially, it soon became the recording medium of 

choice – first in reel-to-reel and then in cassette form.214 The development of tape recording, and 

in particular the portable cassette recorder, spurred ethnographic audio collecting to such a large 

degree that by 2000 approximately 90% of all sound recordings held in folkloric collections were 

on cassette.215 

2. Published and Unpublished Works

 Not only can pre-1972 sound recordings be either commercial or noncommercial, but 

they also can be either published or unpublished.216 Most commercial recordings are, as one 

 

212 See, e.g., Society of American Archivists (SAA) at 1. 

213 NRPB REPORT at 16-17. 

214 See id. at 17. 

215 See id. at 18 (citing COUNCIL ON LIBRARY AND INFORMATION RESOURCES, FOLK HERITAGE 

COLLECTIONS IN CRISIS 59-63 (2001)). 

216 In this discussion “publication” is used as defined in the federal copyright law: 

the distribution of copies or phonorecords of a work to the public by sale or other transfer 

of ownership, or by rental, lease, or lending. The offering to distribute copies or 

phonorecords to a group of persons for purposes of further distribution, public 
United States Copyright Office PRE-1972 SOUND RECORDINGS

53

would expect, considered to be published works, and most noncommercial recordings are 

considered to be unpublished. According to the Society for American Archivists, of the 46 

million sound recordings housed in American cultural institutions, the majority are 

unpublished.217 Furthermore, such unpublished recordings “far surpass the number of 

commercially published sound recordings that have ever been released.”218 The unpublished 

nature of most pre-1972 sound recordings raises special concerns. It often makes identification of 

a sound recording’s right holders difficult. Unpublished works also tend to exist in only one copy 

and to reside with a single individual or institution, making their preservation and the provision of 

public access much more important. In addition to “typical” unpublished works – field 

recordings, oral histories, and other single-copy recordings – there are also what might be called 

“pre-publication” works, such as those elements of commercial recordings that did not end up 

becoming part of the distributed version of a work.219

 In addition, there are some commercial works that are considered unpublished, such as 

radio broadcasts. Despite their broad reach and significant popularity throughout the 20th and 

21st centuries, radio programs have been, and still are, considered “unpublished” under copyright 

law because, with rare exceptions, they were not distributed in copies. Such works constitute a 

broad and important source of historical information, from first-hand reports of notable news 

events, to radio dramas, to one-of-a-kind transcriptions of performances by notable musicians. 

 

performance, or public display, constitutes publication. A public performance or display 

of a work does not of itself constitute publication. 

This is important to note because, as will be shown below, states often assign different meanings to 

“publication.” In some states, commercial sound recordings are considered to be technically unpublished 

even when distributed to the public. 

217 SAA at 1. 

218 See id. 

219 See, e.g., NRPB REPORT at 33 (quoting Paul West, vice president, studios and vault operations, digital 

logistics and business services, Universal Music Group: “Only 65 to 75 percent of what is in our library has 

ever been released”). 
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Unfortunately, because they were not distributed in copies, radio broadcasts are comparatively illrepresented in the nation’s libraries and archives.220

3. Availability and Location

 Some pre-1972 sound recordings are widely available to consumers through digital 

downloads, record stores, and new endeavors such as the Sony-Library of Congress “National 

Jukebox,” where recordings made on thousands of pre-1925 cylinders and discs are posted online 

for free streaming.221 However, in part due to corporate consolidation and lack of concern over 

the value of preserving recordings, many current record companies do not own physical copies of 

those sound recordings to which they own the rights.222 Thus, these recordings must be sought 

out in libraries and archives. Other recordings, including many noncommercial and/or 

unpublished works, are also available to hear in person at archives or music libraries. These 

institutions hold an estimated 46 million recordings.223 For commercial pre-1972 sound 

recordings, there is much duplication among institutions. But those works residing in 

institutional collections generally cannot, without permission from their copyright owners, be 

made widely available through the internet or other channels, since the various state laws do not 

generally include exceptions permitting such dissemination.224

 

220 See id. at 4 (“Many recordings believed to have been made of radio broadcasts are untraceable, and 

numerous transcription discs of national and local broadcasts have been destroyed.”). 

221 The National Jukebox (www.loc.gov/jukebox) is a project that makes thousands of early U.S. sound 

recordings available to the public for free streaming access. It consists of recordings made by labels now 

owned by Sony Music Entertainment, which provided the Library of Congress a gratis license. The actual 

recordings are from the collections of the Library’s Packard Campus for Audio Visual Conservation, the 

University of California Santa Barbara, and other partners. The Jukebox was launched on May 10, 2011 

with 10,000 recordings from the Victor Talking Machine Company, which date from the 1890-1925 

“acoustical” era, and include the classical, popular, religious, spoken word, and “ethnic characterization” 

genres. More recordings are expected to be added in the coming years. 

222 See, e.g., Library of Congress (LOC) at 6-7. 

223 NRPB REPORT at 10. 

224 For the application of state sound recording protection to public availability, see supra Chapter II.E. 
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 Many pre-1972 commercial sound recordings are in the hands of individual collectors, 

who hold what is estimated to be the majority of commercially issued sound recordings, including 

“some of the most significant, as well as rarest” items.225 While at least one major collector has 

in the past taped items in his collection for interested listeners, 226 it is unknown how common 

such a practice is. Certainly private collectors are the sources of many record company reissues, 

as they have the cleanest or only copies of some titles.227

 Finally, while there are a few significant collections of commercial radio broadcasts 

residing in libraries and archives in the United States, they are far from complete.228 Availability 

of these collections is generally restricted to on-premises listening.229 As for public radio and 

local radio stations, they retain thousands of hours of programming in their vaults, although the 

digitization of these programs has just begun.230 One additional source for copies of radio 

broadcasts is private collectors, who are estimated to hold tens of thousands of recordings, many 

of which are not represented in institutional collections.231 

 

225 NRPB REPORT at 35-36. The relationship between private collectors and institutions is described 

below. See infra Chapter III.C.1.c. 

226 Eddie Dean, Desperate Man Blues: Record Collector Joe Bussard Parties Like It’s 1929, WASHINGTON 

CITY PAPER, Feb. 12, 1999, available at http://www.washingtoncitypaper.com/articles/16690/desperateman-blues. 

227 See id. 

228 For example, a significant portion of NBC broadcasts from the 1930s through the 1970s is held at the 

Library of Congress, and smaller collections of ABC and Mutual Network transcriptions have been saved, 

but no extensive archive of CBS transcriptions is known to exist. NRPB REPORT at 21-22. 

229 See id. at 23, noting that dissemination of the NBC collection at the Library of Congress is “tightly 

restricted.” 

230 See id. at 26-29, describing the holdings of WNYC, WGBH, Pacifica, and WWOZ. 

231 See id. at 30. 
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4. Recording Media and Deterioration Rates for Pre-1972 Sound

Recordings

All sound recording media, from the earliest to the most recent, are at risk of 

deterioration or breakage that may render them unplayable. The chart below, prepared by the 

staff of the Library of Congress Packard Campus for Audio Visual Conservation, outlines the 

major media that were used to record sound prior to 1972, the major components of each 

medium’s composition, and the chemical and/or physical processes that place them at risk. 

Essential to the long-term survival of all audio media, but not listed below, are proper 

housing – shelving and packaging – of audio media, and appropriate temperature and humidity 

that do not fluctuate greatly. Improper storage conditions, such as excessive heat or exposure to 

water, are the most serious threats to long-term survival of all types of sound recordings. 232

Medium 

Period of 

Primary 

Use233

Content Composition Risks and Challenges 

Wax 

cylinders 

1890-1925 Commercial 

recordings of 

music and 

spoken word; 

ethnographic 

field 

recordings; 

dictation 

Wax 

compound, 

metallic soap 

composite 

Fungal growth can deteriorate 

and obstruct grooves. The 

organic plasticizer can 

experience exudation, causing 

crazing,234 and shrinkage of 

playback surface is possible as 

plasticizer is lost. Wax cylinders 

are also fragile and susceptible 

to damage from improper 

 

232 Dietrich Schüller, Audio and Video Carriers Recording Principles, Storage and Handling, Maintenance 

of Equipment, Format and Equipment Obsolescence, http://www.tapeonline.net/docs/audio_and_video_carriers.pdf (2008); Indiana University Digital Library Program, FACET 

Formats Document: Format Characteristics and Preservation Problems, 

http://www.dlib.indiana.edu/projects/sounddirections/facet/downloads.shtml (2007); Bill Klinger, Cylinder 

records: Significance, production, and survival, http://www.loc.gov/rr/record/nrpb/pdf/klinger.pdf/ (2007); 

AMERICAN FOLKLIFE CENTER, 1 THE FEDERAL CYLINDER PROJECT: A GUIDE TO FIELD CYLINDER 

COLLECTIONS IN FEDERAL AGENCIES (1984). 

233 Please note that the date ranges here reference approximate years of primary use. For instance, wax 

cylinders were used for dictation into the 1960s, shellac 78-rpm discs were still being manufactured in the 

early 1960s, and lacquer discs were used to record broadcasts by the NBC radio network until 1970. 

234 Crazing is the making of small cracks on a surface. See THE AMERICAN COLLEGE DICTIONARY 283

(1968) (definition of “craze”). 
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Medium 

Period of 

Primary 

Use233

Content Composition Risks and Challenges 

handling. Extremely fragile. 

Celluloid 

cylinders 

(including 

Edison "Blue 

Amberol" 

cylinders) 

1900-1929 Commercial 

recordings of 

music, spoken 

word, etc. 

Nitrocellulose 

celluloid with 

plaster, 

cardboard, 

and other 

cores 

The plaster core can expand 

through hydrolysis, making it 

difficult to mount the cylinder on 

the playback mandrel and can, in 

severe cases, cause the celluloid 

to break or split. The celluloid 

becomes more brittle with age. 

Catastrophic failure, such as 

found in nitrocellulose film, is 

uncommon. 

Shellac discs, 

78-rpm discs

1896-1950 Commercial 

recordings of 

music, spoken 

word, etc. 

Shellacbonded 

mineral 

powders; 

other resins 

also used 

Until recently, believed to be 

chemically stable, though 

fragile.235 Signal can be 

significantly affected by 

scratches, surface deformities, 

and groove wear. Mold or other 

fungal growth, heat, and water 

can damage and obscure 

grooves. 

Aluminum 

discs 

1925-1935 “Live” events; 

radio broadcast 

transcriptions 

Aluminum Oxidation; scarcity of playback 

hardware (styluses). 

Lacquer and 

acetate discs 

1936-1960 Radio 

broadcast 

transcriptions; 

studio master 

recordings 

Aluminum, 

glass, or 

cardboard 

with a lacquer 

coating 

Lacquer layer susceptible to 

plasticizer exudation and/or 

information layer delamination. 

Aluminum base susceptible to 

oxidation. Glass based discs, the 

predominant instantaneous audio 

medium during World War II, 

are extremely fragile. Cardboard 

base susceptible to water 

damage. Discs susceptible to 

crazing of lacquer layer 

regardless of base material. 

 

235 Discovering some degradation of shellac discs in its collection, the Bibliotheque nationale de France is 

researching the composition of 78-rpm records. Among the challenges to the project are the great disparity 

of compositions of recordings of different pressing companies, countries, and time periods. See Nguyen, et 

al, Determining the composition of 78-rpm records: Challenge or fantasy? 42 ASS’N FOR RECORDED 

SOUND COLLECTIONS JOURNAL, No. 1 (2011). 
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Medium 

Period of 

Primary 

Use233

Content Composition Risks and Challenges 

Wire 

recordings 

1935-1945 Remote 

recordings of 

“live events”; 

oral histories; 

radio broadcast 

transcriptions

Steel or 

stainless steel 

Technological obsolescence; 

mechanical damage to wire 

(tangling); rusting in rare cases. 

Early, pre-standardized sizes not 

compatible with common 

playback equipment. Playback 

equipment difficult to obtain and 

maintain in working order. 

Vinyl and 

polystyrene

discs (33-1/3- 

and 45-rpm) 

1948-1990 Commercial 

recordings of 

music, spoken 

word, etc. 

Vinyl (copolymer of 

polyvinyl 

chloride and 

polyvinyl 

acetate) or 

polystyrene236

Chemically stable, though 

material is relatively soft. 

Susceptible to mechanical 

damage such as scratching and 

deformation due to improper 

storage and handling. 

Polystyrene becomes brittle with 

age.

Acetate tape 1950s1960s Restricted to 

use in Germany 

until late 

1940s; radio 

broadcasting 

and recording 

industry until 

mid-1950s; 

also used in 

moving image 

industry and 

home 

recording. 

Cellulose 

acetate (e.g., 

cellulose 

diacetate, 

cellulose 

triacetate) 

Becomes brittle with age. 

Degrades in high humidity; both 

the tape base and the binders 

used are highly susceptible to 

hydrolysis, in extreme cases this 

is referred to as “vinegar 

syndrome,” as cellulose acetate 

is broken down to release acetic 

acid. Vinegar syndrome causes 

the tape base to shrink and 

deform; “cupping” is a common 

outcome of deformation. The 

information layer can also 

separate from the base. Both 

processes can severely inhibit 

playback. 

Polyester 

tape, open 

reel and 

cartridge 

(including 

audio 

cassettes) 

1965-2005 Commercial 

recordings of 

music, spoken 

word, etc. 

Polyester tape 

within plastic 

shells 

Binder hydrolysis and 

delamination of magnetic layer 

possible, especially in improper 

environmental conditions; 

mechanical failure of cassette 

shell; technological 

obsolescence, access to quality 

playback equipment becoming 

limited in the US. Stretching 

and deformation of base film 

layer possible, though not 

frequently reported. 

 

236 The great majority of “LP” discs are vinyl, while most 45-rpm discs are made from polystyrene. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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The above chart provides some basis for understanding the urgency of users’ preservation 

concerns, particularly regarding wax cylinders, lacquer and acetate discs, and acetate tape. It is 

interesting to note that more recently developed media are not necessarily more robust than older 

media, a point vividly illustrated by a comparison of the risks and challenges of shellac discs with 

polyester tape. Subsequent chapters will show how the various stakeholders perceive that 

federalization may (or may not) assist with the preservation and provision of access to pre-1972 

sound recordings embodied on the media described above. 

B. Preservation of Pre-1972 Sound Recordings

In the 21st Century, the preservation of sound recordings means, for all practical 

purposes, digital preservation – specifically, copying a work from its native format to a digital 

medium. Preservation is extremely important because sound recordings represent a key 

component of our cultural heritage, and one that will be lost to posterity if efforts are not 

undertaken to preserve old recordings and migrate them from what are often volatile and obsolete 

media to more stable forms of fixation. It is this initial reproduction, and the related downstream 

potential of distributing multiple perfect copies via the Internet, that invites copyright law into the 

discussion. If preservation were nothing more than carefully cleaning and storing the original 

media, copyright would be irrelevant to preservation. But because reproduction onto digital 

media is becoming the most common means of preserving sound recordings (among other 

media), copyright issues cannot be avoided. 

 The nuts-and-bolts of digital preservation are quite complex. As a report by the National 

Recording Preservation Board describes it: 

After capture of the source audio and creation of digital files, systems must 

protect the files and assure their integrity, which requires periodic migration of 

the files to new media, validations to assure that copies of the digital files are 

faithful to the previous generations, and further steps to assure that these files are 
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accessible in perpetuity. In other words, recorded sound preservation is a chain 

and process without end.237

The RIAA and A2IM agree that preservation is complex, noting that preparing a digital 

reissue includes: 

the costs of storage, review in realtime (of analog recording media) for missing 

or incomplete metadata, data entry, cataloging, conversion/digitization using 

carefully preserved obsolete equipment and storage media (i.e., preservation), 

and, related overhead costs including legal fees (for the recordings and/or for 

clearing underlying rights, such as compositions).238

Regardless of who is doing it, digital preservation is clearly a difficult endeavor requiring 

significant resources and technical skill. 

1. Current Preservation Activities

 For preservation of pre-1972 sound recordings, there are four important entities to 

survey: record companies, libraries and archives, private collectors, and radio stations. 

a. Libraries and archives 

 Preservation of sound recordings by libraries and archives is a primary focus of this 

Report. These institutions and other stakeholders shared with the Copyright Office a great deal of 

information about practices, technology, costs, and frustrations with legal analysis. However, it 

is unclear in the context of “pure” preservation activities239 whether the date a sound recording 

was first fixed and its corresponding legal status actually matter to libraries and archives. Some 

commenters report that the pre- or post-1972 status of a recording does not factor into a decision 

 

237 NRPB REPORT at 9-10. 

238 RIAA/A2IM at 8. 

239 I.e., activities focusing solely on preservation, without regard to access. 
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whether to digitize, and some report that it does.240 There are also additional factors bearing upon 

preservation of sound recordings by libraries and archives, such as the availability of technology 

and money, specifically grant funding.241 And such funding, as will be seen, is in part dependent 

upon the access that the institution can provide to its preserved works. In addition, librarians and 

archivists who deal with ethnographic materials must abide by the cultural and religious norms of 

those whose voices and stories are on the recordings.242 

 Much like a record company, a library or archive must have several sound recording 

preservation specialists in order to create and maintain durable and high quality digital copies. 

Only a few libraries – notably the Library of Congress and the University of California, Santa 

Barbara – have sufficient resources to preserve the multiple media types on which pre-1972 

sound recordings reside, such as wax cylinders and lacquer discs. In one notable partnership 

between record companies and the Library of Congress – the National Jukebox – libraries are 

providing the original recordings and undertaking the digitization, while Sony is providing the 

permission to use the recordings that it owns. Because Sony now controls the catalogs of the 

 

240 For assertions that the pre-1972 status of a recording does not affect its preservation, see, e.g., Music 

Library Ass’n (MLA) at 6 (“[W]hile some libraries may consider the date of fixation when considering 

preservation activities under §108(c), in most cases this would not be an important consideration for 

preservation activities beyond isolated, single-item duplication.”) and SAA at 2 (“We have no data that 

would suggest that archives differentiate between pre-1972 and post-1972 recordings for preservation 

purposes, even when they may so differentiate for access purposes. Because of the complexity of laws 

governing sound recordings, few archivists are even cognizant of the difference in the legal status of pre1972 and post-1972 recordings.”). For assertions that preservation decisions are affected by pre-1972 

status, see, e.g., Kenneth Crews at 5, n.12 (“I can affirm that some libraries do in fact treat early sound 

recordings differently because of the lack of federal protection, particularly for the purposes of preserving 

unique or scarce works.”) and Stephanie Roach at 2 (“the complexity of the inconsistent body of state laws 

that govern these recordings introduces needless delays – sometimes indefinitely – and hampers decision 

making regarding preservation and access for collections of pre-1972 sound recordings within archives, 

libraries, and other cultural heritage institutions in the United States.”). 

241 NRPB REPORT at 14. 

242 NRPB REPORT at 19. 
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62

large record companies of the acoustical era – pre-1925 – including that of Columbia, it 

effectively owns the rights in the majority of commercial recordings of that era.243

b. Record Companies 

 According to several comments submitted for this Report, record companies historically 

have not been concerned with preserving their sound recordings for future use.244 One public 

meeting participant suggested that preservation is not properly the domain of record companies, 

who are established to manufacture and sell recordings.245 Nonetheless, in recent years (perhaps 

spurred by the CD reissue boom in the 1990s), U.S. and foreign record companies have been 

taking a greater interest in their back catalogs and either reissuing titles themselves or licensing 

their works to other companies who serve more specialized markets. The decision as to what 

titles to reissue is driven in large part by what kind of a return on investment can be expected.246 

The question of whether a recording was fixed pre- or post-1972 is irrelevant for a record 

company reissuing its own works. 

 In their initial comment, RIAA and A2IM detailed the preservation work of some of the 

larger foreign and domestic record companies. Some of the highlights of the survey include 

EMI’s plans to digitize tens of thousands of recordings released between 1923 and 1940, with 

approximately 5,500 remastered for commercial purposes; Warner Brothers’ goal of digitizing 

every recording it released since the time of its founding in the late 1940s;247 Sony’s partnership 

 

243 See supra note 220; see also Association of Recorded Sound Collections (ARSC) at 6 and 

http://www.loc.gov/jukebox/about. 

244 See, e.g., Brooks T1 at 108-09. 

245 Loughney T1 at 118 (“the commercial industry, they live within the strictures of the marketplace, and 

they can only invest in things that they believe will be commercially available, and they are not in the 

archive business in the sense of doing what libraries do.”). 

246 RIAA/A2IM at 8. 

247 See id. at 8-14; but see ARSC Reply at 7. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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with the Library of Congress to digitize and make available for streaming to the public thousands 

of pre-1925 sound recordings;248 and Universal Music Group’s decision to give its master 

recordings from 1929 to 1948 to the Library of Congress.249 

 RIAA and A2IM stressed in their initial comment that the time, effort, and resources 

required to do a quality reissue “can be prohibitive,” citing “storage, review of analog media for 

metadata, data entry, cataloging, conversion/digitization using obsolete equipment and storage 

media, and legal fees.”250 Thus, its members focus on earning a return on their investment in 

deciding whether and what to preserve. 

c. Private Collectors 

Private collectors were the first sound recording preservationists, in that they collected, 

cataloged, and maintained in good condition thousands of pre-1972 titles that otherwise would 

have been discarded or forgotten.251 As a general rule, private collections often form the basis of 

public collections or collections that reside in larger institutional settings. Many private 

collections, however, are stored in less-than archival-quality conditions, vulnerable to poor 

handling and environmental damage.252 And, while some private collectors of commercial sound 

recordings may make digital copies of titles in their collections, this practice is not “true” 

preservation of the sort practiced under generally accepted norms by librarians who have the 

professional duty of insuring continued playability and accessibility of the digitized copy. 

 

248 http://www.loc.gov/jukebox/about. 

249 Library of Congress Gets a Mile of Music, N.Y. TIMES, Jan. 9, 2011, 

http://www.nytimes.com/2011/01/10/arts/music/10masters.html. 

250 RIAA/A2IM at 8. 

251 NRPB REPORT at 35-37. The NRPB Report divides private collectors into two groups: “record 

collectors,” who hold mainly rare, but not unique copies of commercial recordings, and “recorded sound 

collectors,” who hold both commercial recordings and unique items such as interviews, private recordings, 

and studio out-takes. See id. at 37-38. 

252 See id. at 38-39. 
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d. Radio Stations

There has been no systematic documentation of radio broadcasts, and few institutions 

work actively to support radio broadcast preservation. During the most popular years of radio 

(early 1930s through early 1950s), nobody envisioned an aftermarket for recordings of radio 

programs. And because most of these broadcasts were done live, there was little financial 

incentive to record them. In terms of history, the first 15 years of radio – roughly 1920-1935 – 

have left relatively few sound recordings, and those recordings that were saved were recorded on 

lacquer-coated discs until the advent of magnetic tape.253 In later years more recordings were 

made and retained. For example, the Library of Congress and the University of Wisconsin have 

significant holdings of NBC radio programs that were recorded on what were called 

“transcription discs.” 

 Radio transcriptions were not only made by broadcast networks, but by third party 

transcription services, which used wire recorders that produced very fragile recordings. The 

largest resource for radio broadcasts from 1942 to the present is the Armed Forces Radio and 

Television Service transcriptions collection at the Library of Congress.254 Other sources of radio 

broadcast recordings are National Public Radio stations, local radio stations, and individual 

enthusiasts, who hold tens of thousands of tape recordings.255

2. Preservation and the Law

 To what extent does the law – both state and federal – permit preservation activities? All 

digital preservation activities require making copies. Thus, unless a library or archive has 

 

253 See id. at 20-21. 

254 See id. at 24. AFRTS provided programming for US military forces overseas. 

255 See id. at 30. 
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permission from the right holder, copyright law (or related state law doctrines) will determine 

whether and to what extent the library or archive may lawfully make preservation copies. A 

discussion of those provisions follows. 

a. Federal Law 

 Although federal copyright law is inapplicable to most pre-1972 sound recordings, it 

provides an important backdrop for understanding the legal status of pre-1972 sound recordings. 

 Congress has recognized that the ability of certain research libraries and archives to 

preserve cultural and historical works for posterity is in the public interest and has included 

provisions in the Copyright Act that, at the time of enactment, were appropriately tailored for this 

purpose. The primary provision is section 108, which was first enacted in 1976 and is in need of 

updating for the digital age. Section 108 was the subject of a major independent report cosponsored by the Copyright Office and the Library of Congress’s National Digital Information 

Infrastructure and Preservation Program in 2008, and updating it is a current priority of the U.S. 

Copyright Office.256 

 Section 108 provides explicit exceptions to and limitations on a right holder’s exclusive 

rights for the benefit of libraries and archives. These exceptions are available only when they are 

“without any purpose of direct or indirect commercial advantage,”257 and only by institutions 

open to the public or at least to researchers in a specialized field. 

 The part of section 108 pertaining specifically to preservation is subsection 108(b). It 

applies only to unpublished copyrighted works and allows libraries or archives to make up to 

three copies “solely for purposes of preservation and security or for deposit for research use in 

 

256 Priorities and Special Projects of the United States Copyright Office, October 2011 – October 2013, at 

8 (2011), available at http://www.copyright.gov/docs/priorities.pdf. 

 

257 17 U.S.C. § 108(a)(1). In addition, any copy must include a notice of copyright, or if no copyright 

notice is found, a legend indicating that the work may be protected by copyright. Id. 
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another library or archives.”258 The work must be currently in the collections of the library or 

archives, and any copy made in a digital format may not be made available to the public in that 

format outside the premises of the library or archives. Subsection 108(c) allows libraries and 

archives to make replacement copies of published works in their collection that are damaged, 

deteriorating, lost, or stolen, or the format of which has become obsolete. 259 Before a 

replacement copy is made, however, the library or archives must first make a reasonable effort to 

determine whether an unused copy is available on the market at a fair price. While subsection 

108(c) is explicitly for replacement copying, in practice libraries and archives use it for 

preservation in the sense that it allows them to keep in circulation copies of works that otherwise 

would be inaccessible.260 Digital copies made under subsection 108(c), like those made under 

subsection 108(b), may not be made available outside the premises of the library or archives. 

 An additional exception applying to published works is section 108(h), which allows 

libraries, archives, and nonprofit educational institutions under certain conditions to “reproduce, 

distribute, display, or perform in facsimile or digital form ... for purposes of preservation, 

scholarship, or research” copies of any published work in its last 20 years of federal copyright 

protection. This exception is not available if the work is subject to normal commercial 

exploitation or a copy or phonorecord can be obtained at a reasonable price. 

 It should be noted here that there is widespread agreement among libraries, archives, and 

right holders that section 108 is inadequate to address preservation and access issues in the digital 

realm, although there is a wide variety of views as to how it should be amended.261

 

258 17 U.S.C. § 108(b). 

259 A format is considered obsolete “if the machine or device necessary to render perceptible a work stored 

in that format is no longer manufactured or is no longer reasonably available in the commercial 

marketplace.” 17 U.S.C. § 108(c). 

260 Section 108 Study Group, Section 108 Study Group Report at 53 (2008). For a discussion of why 

section 108 treats published and unpublished works differently see id. at 18-19. 

261 See id. at i-xiv. 
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 Apart from section 108, libraries and archives may also, in appropriate cases, use the fair 

use doctrine (section 107 of the Copyright Act) in order to make preservation copies.262 Fair use 

provides an exception to the Copyright Act’s exclusive rights (reproduction, preparation of 

derivative works, distribution, public performance, public display, and digital public performance 

for sound recordings263) for certain purposes. 264 Whether or not a use is fair is a fact-specific 

inquiry, including consideration of: 

(1) the purpose and character of the use including whether such use is of a 

commercial nature or is for nonprofit educational purposes; (2) the nature of the 

copyrighted work; (3) the amount and substantiality of the portion used in 

relation to the copyrighted work as a whole; and (4) the effect of the use upon the 

potential market for or value of the copyrighted work.265 

Determining fair use is not a mechanical process, and whether or not a particular preservation 

activity is a fair use depends upon the nature of that activity. Some libraries and archives may 

rely on the flexibility of fair use in evaluating their digitization plans. However, what some see 

as flexibility others may experience as uncertainty, and this difference in perception is frequently 

attributable to one’s level of risk aversion. An institution with little appetite for stretching the 

boundaries of fair use, for example, may appreciate the relative certainty of section 108, despite 

its restrictions. 

 

262 17 U.S.C. § 108(f)(4) (“nothing in this section in any way affects the right of fair use as provided by 

section 107.”) 

263 17 U.S.C. § 106. 

264 Section 107 lists examples of uses that may be fair – criticism, comment, news reporting, teaching 

(including multiple copies for classroom use), scholarship, or research. However, these uses are not 

automatically considered fair uses; indeed, the statute clearly states that courts must consider the statutory 

factors “[i]n determining whether the use made of a work in any particular case is a fair use.” 17 U.S.C. 

§ 107. And other non-enumerated uses may also qualify as fair use. 

265 17 U.S.C. § 107. 
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b. State Law 

 In the absence of permission, the various state laws that protect pre-1972 sound 

recordings generally lack specific provisions allowing libraries and archives to make preservation 

copies.266 Indeed, the structure of statutory state law protection is fundamentally different than 

federal law, partaking of many different criminal and civil approaches, with some commonalities 

among the states and some differences. The two largest differences between state and federal 

protection of sound recordings are (a) the use in the states of “common law copyright,” meaning 

law based entirely upon judicial decisions, and not codes enacted by the legislature, and (b) the 

states’ use of misappropriation/unfair competition laws. 

 The one facet of state protection of pre-1972 sound recordings that has a modicum of 

similarity from state to state is found in criminal anti-piracy statutes. A 10-state survey 

conducted in 2009 found that states tended to follow language pioneered by the California and 

New York legislatures, namely: 

Each of the 10 states has similar requirements of knowledge [that the distribution 

is taking place] and lack of consent of the owner. Even more important, the 

statutes in all 10 states contain explicit language stating that the unauthorized use 

must be made with “intent to sell,” for “commercial profit,” or some other 

language indicating a commercial nature to the unlawful activity.”267 

State law regarding what qualifies as “commercial” is either unknown or unclear.268 However, it 

would seem that library and archives digitization (divorced from access) is an archetypal example 

of noncommercial activity. There have been no criminal piracy charges brought against a library 

or archive in any state, so the exact application of the law as pertaining to pre-1972 sound 

recordings in a cultural repository remains undeveloped. 

 

266 For a full discussion of the state law landscape, see supra Chapter II.E. 

267 JASZI REPORT at 9 (internal citations omitted). 

268 See id. at 12 (“Overall, there seems to be a dearth of case law relating directly to the scope of permitted 

noncommercial use.”). 
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 Comments by the stakeholders overwhelmingly indicate that it is not any specific 

provision of any state’s law that affects preservation decisions, but simply the multitude of 

different laws and the lack of interpretation and analysis that deters preservation activities.269 

Some states provide more guidance than others. For example, in 2008 the Supreme Court of New 

York (a trial court) recognized the federal fair use exception as a defense to a common law claim 

of infringement of a sound recording.270 It is also useful to note that, to the degree that common 

law copyright and associated state laws hinder preservation, it appears that technological barriers 

and lack of funding hinder it significantly as well.271

c. Risk Analysis 

A substantial amount of digital preservation activity occurs regardless of the apparent 

ambiguity of, and confusion over, state law pertaining to pre-1972 sound recordings. The 

University of Utah Library commented that it feels more able to digitize under its state’s law than 

it would under federal law – an example of an entity looking at its state’s legal landscape and 

determining that, while it is not crystal clear, it is clear enough to justify the risk of forging ahead 

with digitization.272 In addition, many entities are likely forging ahead without concern one way 

or the other about state law.273 

 

269 See, e.g. LOC at 4; Syracuse Univ. Library at 4-5; Roach at 2; but see J. Willard Marriott Library, 

University of Utah at 2 (“According to Utah’s Unauthorized Recording Practices Act, libraries and other 

collecting institutions in the State of Utah are permitted to copy and distribute pre-1972 recordings.”). 

270 EMI Records Ltd. v. Premise Media Corp., 2008 N.Y. Misc. LEXIS 7485, at **14-15 (Sup. Ct. Aug. 8, 

2008). 

271 See, e.g., NRPB REPORT, at 11-14 (discussing barriers to preservation of sound recordings revealed by 

surveys). 

272 See University of Utah at 2-3; see also Association of Research Libraries/American Library 

Association (“ARL/ALA”) Reply (discouraging federal protection for pre-1972 sound recordings, and 

asserting that, so long as fair use applies, the lack of explicit exceptions and their attendant restrictions in 

state law is better for preservation). 

273 See SAA at 2 (“Because of the complexity of laws governing sound recordings, few archivists are even 

cognizant of the difference in the legal status of pre-1972 and post-1972 recordings. Almost all archivists 
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 Certainly, in the general context of copyright law, there are users of copyrighted 

materials who are risk-averse and those who are not. Libraries and archives tend to be riskaverse,274 a fact which has not been lost on the Copyright Office or the right holders 

themselves.275 Note, for example, the observations of the RIAA and A2IM, commenting that 

state protection of pre-1972 sound recordings should not inhibit and is not inhibiting preservation 

activities, even in cases where libraries and archives may be in technical violation of the law. 

 When these right holder groups also claimed that “to our knowledge, no public or private 

institution has been sued (or threatened with a lawsuit) by an RIAA or A2IM member for 

undertaking preservation activity; nor should any reputable archive be so threatened,” 276 that 

assertion received a mixed response. While the ARL and ALA did not object to the record 

companies’ assertion,277 SAA and MLA took great exception. They stated that such an attitude 

fostered disrespect for copyright law,278 and would be little more than cold comfort to libraries 

and archives who were interested in providing access as well as undertaking preservation.279

C. Public Access to Pre-1972 Sound Recordings 

 The degree of public access to pre-1972 sound recordings varies widely depending upon 

the age of the recording, whether it is published or of a commercial nature, its popularity, who is 

 assume that their ability to ‘format shift’ material for purposes of preservation is a given in existing law, 

both Federal and state, and act accordingly. If a sound recording is in the collection and it needs to be 

preserved, archivists will try to preserve it.”). 

274 See, e.g., id. at 2 (“Congress and the Copyright Office should remove any legal impediments that may 

discourage libraries and archives from preserving sound recordings.”). 

275 See Pallante T1 at 72-73 (“I think part of what you are saying is that librarians and archivists and 

museum curators shouldn’t be so risk adverse, but I have to tell you that as a former museum attorney 

myself, you are not going to change that...[T]hey are very risk averse and conservative.”). 

276 RIAA/A2IM at 19. 

277 ARL/ALA at 3, note 9. 

278 SAA Reply at 4. 

279 MLA Reply at 4. 
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providing the access, and how one defines “public access” in the first place. For older recordings, 

access does not necessarily utilize digital technology. For example, a library may allow listeners 

to privately study an LP in its listening room, or an individual may purchase a used 45 rpm single 

at a yard sale. By contrast, when dealing with works preserved through digitization, the question 

of public access will draw on the digital copy and therefore raise issues about the application of 

copyright law to the work. Examples of access derived from digital technology include the 

distribution of copies of a CD by the right holder in the sound recording, to listening to a digital 

copy transmitted to a library reading room from the library’s network server, to the performance 

via streaming of an MP3 by a web site. 

 How broadly one defines the question of public access plays a significant role in 

determining how much of the pre-1972 recorded patrimony is “available.” For example, in his 

2005 Survey of Reissues of U.S. Recordings, Tim Brooks distinguished “availability” of pre1972 sound recordings (which he defined as meaning one can locate but not necessarily be able to 

play a copy) from “accessibility” (meaning the recording is available on CD or for purchase or 

download through the Internet).280 On this basis he determined that, for recordings within the 

scope of his study released between 1890 and 1964, an average of 14% are made publicly 

accessible (i.e., reissued) by their right holders.281 Apparently not considered by Mr. Brooks are 

recordings that can be heard solely on-site at a library or archives.282 Under this view, almost all 

field recordings and other scholarly recordings would be considered inaccessible to the public, as 

would the vast majority of commercial recordings housed in libraries and archives. Clearly, 

 

280 BROOKS STUDY at 1-2. 

281 See id. at 7. The scope of the Brooks study was “recordings for which there is documented historic 

interest,” which encompassed “seven major fields of study,” but not, for example, pop vocals. Brylawski 

T1 at 113-14. All recordings within the scope number about 400,000; the random sample size was 1,500. 

BROOKS STUDY at 3-4. 

282 BROOKS STUDY at 14; Brooks T1 at 197. 
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however, such recordings enjoy the same level of accessibility that many other works of 

authorship receive, to those who live near or travel to the libraries and archives housing them. 

 Another example illustrates the tensions involved in addressing accessibility. One 

attempt at making early commercial recordings more accessible is the Sony-Library of Congress 

“National Jukebox” partnership described above.283 This endeavor allows users to stream at will 

thousands of acoustical-era recordings to their home computers. Were these recordings protected 

under federal law, such distribution would certainly qualify as a public performance, which the 

Copyright Act defines in part as 

to transmit or otherwise communicate a performance or display . . . to the public, 

by means of any device or process, whether the members of the public capable of 

receiving the performance or display receive it in the same place or in separate 

places and at the same time or at different times.284

However, for certain scholars such a public performance would not qualify as sufficient public 

access, because they may need to “get your hands on the file and hold the file and use and study 

the audio file” in order to analyze it.285 “Streaming,” one public roundtable participant 

maintained, “simply doesn’t cut it.”286 

1. Current Activities Providing Public Access 

a. Libraries and Archives 

The 2005 survey of U.S. reissues quotes an expert as saying that of all recordings issued 

commercially in the United States, probably over 90% exist in some form today.287 That same 

 

283 See supra note 220. 

284 17 U.S.C. § 101. 

285 Brooks T1at 110-12. 

286 Id. at 110. 

287 BROOKS STUDY at 11 (citing Brylawski). 
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study indicates that right holding record companies are responsible for reissuing 14% of a sub-set 

of these works, while non-right holders have reissued 22%.288 (Although, by the time this Report 

is read, these numbers will be more than seven years old, the author of the 2005 report asserts that 

he has seen no evidence that the percentage of physical reissues has risen.289) Where might the 

rest of these extant recordings be? One answer is libraries and archives. 

 To date, many libraries and archives appear to have been fairly conservative in providing 

public access to the pre-1972 sound recordings (and, for that matter, other works of authorship) in 

their care. However, if the comments and roundtable remarks from the Office’s proceedings are 

instructive, what libraries and archives appear to mean by public accessibility seems to be 

Internet access – from streaming to downloading – and not merely in-person listening. Streaming 

and downloading may be done with permission,290 without permission (either out of ignorance of 

the law291 or out of disregard for the law), or refrained from altogether.292 This observation from 

the Library of Congress is representative of views expressed by scholars, librarians, and 

archivists: 

Within the community of librarians and archivists having custody of sound 

recording collections, when faced with complex or unclear information on the 

copyright status or ownership of a pre-1972 sound recording relating to a public 

access request, the “safe” response is “No.”293

 

288 See id. at 7. Note that the titles reissued by right holders and by non-right holders likely duplicate one 

another to a certain extent. 

289 Brooks T1 at 110. Brooks also stated that online availability to pre-1972 sound recordings has changed, 

and that were the survey performed today online availability would have to be addressed. However, 

Brooks averred that “it is the belief of our members in our organization [ARSC] that limited or restricted – 

we would say heavily restricted – access is not the same thing as availability, certainly not for the purposes 

that scholars need it or even preservationists, perhaps.” Id. Hence, at least in the eyes of archivists, it is 

doubtful that the recordings being streamed through the National Jukebox would be considered 

“available.” 

290 The National Jukebox is one example of permission-based public access by means of streaming 

provided by a library, in this case with the cooperation and permission of the right holder. 

291 SAA at 4. 

292 MLA at 6. 

293 LOC at 5. 
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b. Record Companies 

 Record companies provide public access to pre-1972 sound recordings through reissuing 

these recordings on compact disc and as downloads.294 Sometimes an entire album will be 

reissued intact, and sometimes, particularly for artists popular before the advent of the 331⁄3 rpm 

LP, the reissue will consist of a series of individual songs. As indicated in the previous section, 

record companies tend to reissue a recording only when they can be relatively sure of a return on 

their investment, given the costs of preparing a reissue. As the RIAA stated, cost “coupled with 

uncertainty about the commercial value of the vast majority of the recording, is the principal 

reason many recordings are not widely available.”295 

 Still, to the degree that providing public access to a pre-1972 sound recording means 

issuing a consumer-ready product, record companies appear to reissue fewer of their own works 

than do foreign labels and smaller U.S. ventures who apparently act without authorization.296 

Such other labels have, according to Tim Brooks’s survey, reissued 22% of the pre-1972 

recordings surveyed, compared to 14% by right holders.297 

 

294 As noted elsewhere, record companies have also cooperated in making very old sound recordings 

available for streaming through services such as the Library of Congress’s National Jukebox. See supra

note 220. 

295 RIAA/A2IM at 8. 

296 BROOKS STUDY at 7-8. 

297 See id. It is important to note that the Brooks Report does not encompass all commercial sound 

recordings for the 1890-1964 time period, but instead is restricted to titles with “documented historic 

interest,” as represented in seven major genres: ragtime and jazz; blues and gospel; country and folk; 

ethnic; pop, rock, and R&B; classical; and other (including show music and spoken word). See id. at 3. 

This left “large bodies of recordings” outside the survey such as “every pop vocal that was made before 

1965.” Brylawski T1 at 113-14. It was also noted at the public meeting that, had the total number of 

recordings issued in the U.S. been included in the study, the percentage of right-holder reissues would be 

“significantly less” than 14%. Id. 
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c. Private Collectors

 Librarians and scholars report that many private collectors are loath to put their 

collections in the hands of preserving institutions for fear that their lovingly curated 78s will fall 

into a “black hole” of inaccessibility.298 Since such collections are not particularly accessible in 

their present locations, the main public access service provided by private collectors is that of 

lending titles from their collections to record labels to use as masters for digital reissue.299

d. Radio Stations 

 To the degree that radio stations make publicly available their digitally preserved 

archives, it is likely through private appointments with researchers, or through libraries that have 

assumed stewardship of their recordings. In making radio broadcasts more accessible to more 

than just on-site researchers, libraries and archives must address not only copyright concerns but 

also performer and union contracts that may govern use beyond the initial airing of a program.300

2. Provision of Public Access and the Law

 A point of interest among the librarians and archivists who submitted comments and 

spoke at the roundtable is that preservation activities are inextricable from the goal of providing 

public access. To some degree this is about the desire to provide access, and the degree to which 

access is part of the mission of many research or collecting institutions. On a related point, they 

stressed that access is often a condition of grant money for preservation projects. Such money 

becomes scarce when there is no potential for public access.301 

 

298 See, e.g., NRPB REPORT at 40; Brooks T1 at 83. 

299 See Dean, Desperate Man Blues, supra note 225. 

300 NRPB REPORT at 22. 

301 See, e.g., Cockrell at 1; Roach at 3. 
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 This section of the Report briefly describes the aspects of federal and state law pertaining 

to the provision of access, specifically access to a preservation copy or other digital copy. 

Consistent with the ARSC’s view that access requires the ability to closely analyze one’s own 

copy of a work, the type of access sought by libraries, archives, and scholarly commenters was by 

means of digital downloads or physical reissues. Such activities, when done by libraries or 

archives without the permission of the right holder, are not currently within the scope of section 

108 and, as the Section 108 Study Group Report demonstrates, including them within a statutory 

limitation or exception for libraries and archives is a very controversial topic.302

 Of course, one need not concern oneself with legal exceptions allowing for provision of 

public access if one seeks and receives permission from the right holder. However, with some 

exceptions, permissions was not a subject raised by most stakeholders, in the written comments or 

at the public meeting. There was some indication by libraries and archives that permission for 

use of commercial recordings was difficult to obtain303 and, of course, that permission for use of 

many field and ethnographic recordings was simply impossible as the performers had died. 

Representatives from RIAA suggested that seeking permission remains a productive method for 

making preservation copies and providing access, especially regarding those early recordings that 

are now gathered under the Sony corporate umbrella.304 Another right holder pointed out that the 

National Jukebox preservation and audio streaming partnership between the Library of Congress 

 

302 Section 108 Report at 57-60 (“Remote electronic access”). 

303 LOC at 7 (“In the case of both foreign and U.S. owned pre-1972 sound recordings, it is common to 

encounter rights holders who either no longer own any copies of recordings to which they hold the rights, 

or no longer have documentation of any kind that verifies their ownership interests. Likewise, it is 

common in regard to pre-1972 sound recordings of both foreign and U.S. origins, for there to be a lack of 

institutional memory within companies and/or documentation about the past sale or transfer of ownership 

of recordings to other parties. The effect on libraries, archives, etc., and members of the research public is 

confusion caused by cold information trails leading to long dead owners and record companies that have 

gone out of business.”). 

304 Chertkof T1 at 118-19. 
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and Sony was an example of a productive permission-based agreement for providing access to 

early sound recordings.305

 

a. Federal Law 

Federal law provides an important backdrop for understanding the legal status of pre1972 sound recordings, but again it is important to recall that it is currently inapplicable to most 

pre-1972 sound recordings. As discussed above, section 108 and fair use are the primary 

provisions of copyright law relied upon by libraries and archives to preserve and provide access 

to works. But it is the first sale doctrine in section 109 that authorizes the basic lending function 

of libraries. Section 109 states that, 

Notwithstanding the [exclusive right of distribution], the owner of a particular 

copy or phonorecord lawfully made under this title, or any person authorized by 

such owner, is entitled, without the authority of the copyright owner, to sell or 

otherwise dispose of the possession of that copy or phonorecord.306 

In other words a library is entitled to lend copies that it owns, including copies made under the 

authority of section 108, subject to the restrictions of that section. 

 In particular, libraries and archives may not make available to the public, “outside the 

premises of the library or archives,” a digital preservation copy of an unpublished work or a 

digital replacement copy of a published work.307 Although under certain conditions libraries may 

at a user’s request copy a portion of a work in their collections (or even a complete work if it 

cannot be obtained at a fair price), these exceptions are carefully restricted.308 For example, they 

extend only to “the isolated and unrelated reproduction or distribution of a single copy or 

 

305 Aronow T1 at 105-06. 

306 17 U.S.C. § 109(a). 

307 17 U.S.C. § 108(b)(2). 

308 17 U.S.C. § 108 (d), (e). 
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phonorecord of the same material on separate occasions” and do not apply to systematic 

reproduction of multiple copies.309 

 However, there is one proviso to the copies-for-users subsections of section 108 that 

particularly affects libraries and archives with substantial recorded sound collections: those 

subsections do not apply to, inter alia, musical works.310 Sound recordings frequently constitute 

performances of musical works; in other words, musical works are embodied in them. Since it is 

impossible to copy a sound recording without copying the musical work it embodies, it may not 

be copied for users pursuant to section 108 if the sound recording embodies a musical work that 

is still protected by copyright.311

 In contrast, the section 108(h) exception for use of a work in its last 20 years of copyright 

protection does apply to the reproduction and distribution of sound recordings. 

 The question of availability of digitized pre-1972 sound recordings also would implicate 

section 110(2) of the federal copyright law if pre-1972 sound recordings were covered under title 

17. This section permits a government body or “accredited nonprofit educational institution” to 

transmit “reasonable and limited portions” of a sound recording as part of distance education.312 

Section 110(2) is clearly an “access” provision, but it only provides access to a limited class of 

users, and under restricted circumstances. Moreover, because it only permits portions of sound 

recordings to be transmitted, it is of limited use to scholars of such materials. 

 

309 17 U.S.C. § 108(g). 

310 17 U.S.C. § 108(i). 

311 Musical works are still protected by copyright if they were published after 1923 (provided that, if they 

were published in the United States before 1964, their copyrights were renewed). Prior to the enactment of 

the Copyright Renewal Act of 1992, title I of the Copyright Amendments Act of 1992, Pub. L. No. 102-

307, 106 Stat. 264, a work for which copyright was secured prior to 1978 enjoyed an initial term of 28 

years, subject to a renewal term only if the person entitled to renew the copyright submitted a renewal 

application to the Copyright Office during the 28th year of the initial copyright term. 

312 17 U.S.C. § 110(2). 
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b. State Law

 Just as the various state laws that protect pre-1972 sound recordings generally lack 

specific provisions allowing libraries and archives to make preservation copies, they also lack 

specific provisions permitting libraries and archives to provide access to those copies. The 

general discussion above of the uncertainty and lack of precedent in state law313 applies as well to 

any public access activities. 

c. Risk Analysis 

While libraries may continue to preserve pre-1972 sound recordings in the face of 

ambiguous and inconsistent state law, they are less likely to provide public access to those 

recordings. Libraries and archives are particularly concerned about making those sound files 

generally available over the Internet because they believe that doing so could conceivably expose 

the posting institution to the laws of all 50 states.314

 Of course, there will always be situations where an institution may determine that the risk 

of an infringement claim is relatively remote and that the importance of providing access to its 

digitized works justifies taking that risk. Such an institution may decide to post its preserved 

recordings on the Internet. For example, the Society of American Archivists spoke of 

a highly-regarded repository that makes available on the Internet rare sound 

recordings of Jewish music. It does so in the apparent belief that U.S. sound 

recordings made before 1923 are in the public domain. The good news is that 

current practice has not harmed any rights owners; the repository has received 

only acclaim, with no reported complaints.315

 

313 See supra Chapter III.B.2.b. 

314 See SAA at 11. 

315 Id. at 4. 
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In addition, the ARSC reported that the larger the institution, the more likely it is to be riskaverse.316 

 

316 ARSC at 8. 
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 Tape reel 

IV. POLICY CONSIDERATIONS 

There are many points of public policy to consider in determining the wisdom of federal 

protection for pre-1972 sound recordings. At the outset, there is the intelligibility of each regime: 

would federal protection improve the clarity, consistency and certainty of the law protecting pre1972 sound recordings, or would those values be better achieved by retaining state law 

protection? The likely effects on preservation and public access must also be considered. All 

stakeholders support these goals, at least in the abstract, but disagree on how best to promote 

them. Likewise, stakeholders agree that any change in legal protection should not harm the 

reasonable economic interests of right holders. But such consensus still begs an important 

question: what economic interests are reasonable? 

There are other questions with respect to the application of Title 17. This Chapter also 

addresses how section 512 (providing a limitation on liability for online service providers), and 
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section 114 (providing a statutory license for digital public performance of sound recordings) 

would interact with provisions providing federal protection for pre-72 sound recordings. Finally, 

this Chapter considers some alternative protection schemes proposed by stakeholders. 

A. Certainty and Consistency in Copyright Law 

The majority of the stakeholder comments regarding the potential federalization of pre1972 sound recordings mentioned the importance of certainty and consistency as policy lodestars 

by which to guide the recommendations of the Office.317 While these are neutral values in the 

abstract, when applied to a particular issue they can cut more than one way. What appears 

consistent when measured against one set of facts may be a break from past practice, and thus 

inconsistent, from another perspective. The historical and policy importance of certainty and 

consistency (as well as neighboring values such as uniformity) to copyright owners and to users 

of copyrighted works is discussed below, along with an examination of stakeholders’ views on 

how copyright law’s certainty and consistency may be affected by putting pre-1972 sound 

recordings under federal protection. 

1. Importance of Certainty and Consistency 

Uniform national application has been a hallmark of copyright law since the first 

copyright law was enacted in 1790. The goal was underscored and strengthened by the Copyright 

Act of 1976, which extinguished – with the exception of pre-1972 sound recordings – the concept 

of state common-law copyright.318 

 

317 See, e.g., LOC at 4; Aronow T1 at 106. 

318 See, e.g., ASRC Reply at 9-10 (“Uniformity has been widely recognized as essential to maintaining the 

marketability and, in the case of historic recordings, the continued existence of creative works. The very 

purpose behind Article I, Section 8 from which Congress derives its power to promulgate copyright law is 

inextricably rooted in the need for national uniformity of copyright law.”). 
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Until the Copyright Act of 1976, federal copyright law protected only published works,319

with unpublished works covered in perpetuity by state common-law copyright. This dual system 

applied to sound recordings along with every other type of work. The 1976 Act, with the goals of 

(1) promoting national uniformity; (2) eliminating divisions in copyrightable subject matter by 

publication status; (3) applying the Constitutional rule of “limited times” to unpublished works; 

and (4) improving international copyright dealings,320 eliminated state common-law copyright 

and moved all unpublished works, both past and future, into the federal copyright system. As 

explained in Chapter II above, this unification measure was not applied to sound recordings fixed 

before February 15, 1972. 

In excluding pre-1972 sound recordings from federal protection, Congress appears to 

have departed from those goals. Regardless of why Congress made that decision – and the record 

sheds little light on Congress’s reasons – sound recordings in 1976 became the single 

inconsistency in what was intended to be a seamless national system of copyright protection. 

Additionally, what has grown out of that inconsistency is over a hundred years of a state-law 

regime upon which members of the RIAA and A2IM have come to rely.321 So, while federal 

protection for pre-1972 sound recordings might be consistent with an overall federal policy of 

uniformity, it would arguably be inconsistent with the experience built up in the sound recording 

community with respect to state law. 

Another issue for consideration is whether federalization of pre-1972 sound recordings 

would provide greater legal certainty than currently obtains. Most pre-1972 sound recordings are 

 

319 There were some narrow exceptions. At the option of the copyright owner, certain works that typically 

were exploited not by means of publication, but rather by means of public performance or exhibition, were 

eligible for statutory copyright protection. Such works included lectures, etc., prepared for oral delivery; 

dramatic, musical, or dramatico-musical compositions; photographs; motion pictures; works of art; and 

plastic works or drawings. See 17 U.S.C.A. § 12 (repealed 1978). 

320 See S. REP. 94-473, at 112-14 (1975). 

321 See RIAA/A2IM at 26 (“This system may be complex, but at least there have been decades of litigation 

and precedent to resolve ownership issues under [state] laws.”). 
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protected only under state law, but that just begins the inquiry.322 In each case one must consider 

which state’s laws apply to the particular activities, what the law is in that state, how the laws 

apply to preservation and public access, and what defenses are available. In many cases the law 

is ambiguous.323 The issues become more complicated if the intention of the library or archives is 

to post copies of a work to a broadly accessible website, where potentially multiple states’ laws 

could apply. 

It is undoubtedly true that federal law does not provide complete clarity, as the RIAA, 

A2IM, ARL, ALA, and others assert. Because of the limitations of section 108, libraries and 

archives increasingly rely on fair use in undertaking digital preservation, and the scope of the fair 

use doctrine in this context has never been adjudicated. Furthermore, the RIAA and A2IM assert 

that, after over one hundred years of state-law practice, assessing rights and licenses concerning 

pre-1972 sound recordings under federal law would lead to great uncertainty in how right holders 

continue to manage their assets and could potentially unsettle existing contractual relationships.324 

Before addressing whether federal protection of pre-1972 sound recordings would 

provide greater certainty and consistency, it is worthwhile to consider potential consequences of 

legal uncertainty. An environment in which rules are ambiguous and differ by region leads to 

problems of both overprotection and underprotection. Overprotection – where users develop a 

risk-averse attitude toward socially productive uses of copyrighted works due to the lack of 

explicit exceptions – has been much discussed among the stakeholders in this study. They have 

argued that institutions will not undertake preservation and access programs without some 

 

322 While most pre-1972 sound recordings are protected only under state law, the exception created by the 

copyright restoration provisions can lead to uncertainty as to which body of law to apply to a particular 

recording. 

323 For example, if a library’s or archives’ activities are looked at through the lens of a criminal law, then a 

defense that the activities are noncommercial appears likely to prevail. See supra Chapter II.E.1.b. Of 

course, it is far more likely that the activities would be looked at through a civil law lens, in which case the 

laws of most states offer no clear defenses although in many states the law of unfair competition would 

require that the defendant be in competition with the right holder. See supra Chapter II.E.2-5. 

324 RIAA/A2IM at 24-28. 
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certainty that doing so will be within the law.325 Underprotection, in contrast, results when the 

lack of clarity concerning the scope of rights allows users to make uses that are unfair or 

unreasonable, but right holders are discouraged by the law’s ambiguity from pursuing effective 

remedies.326 Unsurprisingly, comments by libraries, archives, and scholars have not stressed this 

side of the coin. But, particularly when there is little likelihood that more concrete rules and 

exceptions will be imposed, underprotection may be attractive for users. 

A set of rules that are certain and consistent go a long way to eliminating both under- and 

overprotection, because they make the law itself, rather than the level of risk one is ready to 

accept, the guiding principle. 

2. The Impact of Federalization upon Certainty and Consistency in 

Copyright Law 

a. Users’ perspectives on effect of a single set of federal exceptions 

Many user groups (libraries, archives, and scholars) noted in their comments a number of 

ways in which they believe federal protection of pre-1972 sound recordings will improve 

consistency and certainty in copyright law. They believe that the availability of a single set of 

exceptions – exceptions with well-developed national jurisprudence – would encourage libraries 

and archives to make reasonable uses of pre-1972 sound recordings without having to seek 

permission. “The regularization of the law, the certainty of the law, the bright lines that the law 

would bring us,” said the ARSC, “outweigh whatever negatives.”327 They predicted that federal 

 

325 See, e.g., SAA at 3 (“The danger exists that if archivists come to understand the uncertain legal 

foundation on which their current behavior rests, they may become hesitant to continue with their 

preservation activities. Providing a clear legal basis for preservation, therefore, would encourage archivists 

to be less risk-adverse when it comes to preservation.”). 

326 But see ARL/ALA Reply at 6, providing a more critical view of the current federal exceptions and a 

more sanguine view of the state law regime. 

327 Brooks T1 at 18-19; see also Lipinski T1 at 59 (“One of the benefits that I see is uniformity and 

uniformity in the advantage of having a body of case law, for example, of theories that can be readily 

applied. I think that's a great advantage.”). 
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protection would produce specific benefits in the areas of preservation and provision of public 

access, detailed below. 

Federal protection of pre-1972 sound recordings would also enable owners and users of 

those works to benefit from future applicable amendments to the Copyright Act (for example, an 

amendment to deal with the problem of orphan works, or amendments to section 108). This 

would not be the case with respect to state protections, and the gap between the treatment of pre1972 sound recordings and all other works would only increase if such amendments are enacted 

but pre-1972 sound recordings remained governed by state law. 

Not everyone in the library community has concluded that federalization would be 

beneficial to libraries and archives. The ALA and ARL pointed out that many of the same 

organizations pressing for federal protection have been critical of the scope of federal exceptions, 

specifically section 108.328 They have argued that section 108 is too outdated to be truly useful 

with respect to preservation and making materials available to users in the digital age.329 Indeed, 

the Library of Congress wrote that 

As they now exist, Sections 108(b) and (c) [the preservation and replacement 

provisions, respectively] place recorded sound archivists who perform their 

duties to the highest professional standards, plus the libraries, archives, museums 

and other institutions for whom they work, at odds with the word of the law, if 

not its intention.330

 Fair use would also be available under federalization. However, fair use is flexible – one 

might say uncertain – by design. It requires a case-by-case analysis, is extremely fact-specific, 

and for this reason does not lend itself to rules or policies for general application. Indeed, there is 

some irony in users seeking certainty in a statutory exception that may not allow uses to be made 

 

328 ARL/ALA Reply at 4-5. 

329 LOC at 5. 

330 See id. 
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with any confidence. Still, the four factors of fair use, along with extensive case law, are not 

necessarily available under state law. 

 One final aspect of federal protection that is a potential drawback for users is the 

availability of statutory damages. Some users were clearly concerned about the possibility of 

large statutory damage awards, which may be obtained without necessarily demonstrating 

specific monetary or other losses. On the other hand, the statute does provide protections for 

libraries, archives and nonprofit educational institutions. Specifically, the Copyright Act provides 

that statutory damages shall be remitted (i.e., reduced) if the person making the allegedly 

infringing reproduction reasonably believes it was fair use under section 107 and is an employee 

or agent of a nonprofit educational institution, library, or archives, acting within the scope of 

employment.331 

b. Right holders’ perspectives on the move from state to federal law 

RIAA and A2IM predicted that federalization of protection for such recordings would 

lead to greater uncertainty – not just for right holders, but for users as well. They predicted that 

federal protection would cause an “administrative nightmare”332 and result in “significant 

economic harm”333 to right holders. A2IM commented that it was quite comfortable with the 

current state regime, and that “it’s something we understand,”334 while Sony Music warned that 

moving to federal protection risked creating “more uncertainty rather than less uncertainty.”335

Right holders’ objections to federal protection were phrased largely in terms of the economic 

 

331 See 17 U.S.C. § 504(c)(2). Note, however, that remission only applies to acts of reproduction, not to 

the infringement of other exclusive rights. 

332 RIAA/A2IM at 26. 

333 See id. at 5. 

334 Bengloff T1 at 33-34. 

335 Aronow T1 at 106. 
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harm and interference with settled business expectations that might result. These issues are dealt 

with in detail in Chapter IV.D below. 

RIAA also suggested that if pre-1972 sound recordings are brought under federal law, 

ambiguities concerning the interpretation of sections 107 and 108, coupled with the risk-averse 

nature of libraries, would result in fewer recordings being made available to the public.336 

Another stakeholder asserted that because federal protection would provide a digital performance 

right to pre-1972 recordings, it would add another layer of complexity to libraries’ and archives’ 

digitization planning.337

RIAA and A2IM do not, of course, represent all right holders in pre-1972 commercial 

sound recordings, much less right holders of noncommercial or unpublished recordings. There is 

at least some evidence that non-affiliated owners may not all share their views. One stakeholder 

purporting to own the rights in approximately 800 pre-1972 sound recordings commented that it 

would prefer federal protection to the current state regime because it was “difficult and costprohibitive to pursue infringement litigation state-by-state.338 It does intuitively make sense that 

right holders, particularly smaller ones, would prefer federal protection simply on the grounds 

that it would be easier to manage one’s assets on the basis of a single set of laws rather than 50 

sets. 

Like users, right holders also expressed concerns – albeit quite different ones – about 

statutory damages. Pre-1972 sound recordings are not currently registered with the Copyright 

Office (since they are not eligible for copyright protection) but would have to be registered in 

order to qualify for statutory damages and awards of attorney’s fees. This would be a significant 

 

336 RIAA/A2IM at 20-21. 

337 National Association of Broadcasters (NAB) Reply at 2-3. 

338 VAPAC Music Publishing Reply at 1. 
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undertaking. Moreover, RIAA indicated that it finds punitive damages available under state law 

more attractive than the prospect of statutory damages under federal law.339

c. Application of the DMCA “Safe Harbor” of 17 U.S.C. § 512 

 Section 512 of title 17, enacted as part of the Digital Millennium Copyright Act, provides 

certain limitations on liability for copyright infringement by online service providers. However, 

it is not settled whether the section 512 liability limitations apply to violations of the rights of 

owners of pre-1972 sound recordings.340 If pre-1972 sound recordings were federalized, service 

providers would explicitly be entitled to the benefits of the section 512 safe harbor provisions 

with respect to those recordings. 

 In response to the Notice of Inquiry, only two stakeholders raised concerns regarding 

how the section 512 “safe harbor” limitations on liability for copyright infringement by online 

service providers may apply to the state law protection of pre-1972 sound recordings. The 

Electronic Frontier Foundation (EFF) noted the importance of the section 512 “safe harbor” 

provisions to online innovation. It suggested that Congress could not have intended that these 

provisions would not apply to pre-1972 sound recordings. At the same time it acknowledged that 

there remains some uncertainty because online service providers cannot easily predict whether a 

court would find the 512 “safe harbor” provisions applicable to certain copyright infringement 

claims under state law. It suggested that federalization would clarify that the section 512 “safe 

harbor” provisions apply to pre-1972 sound recordings.341 At the roundtable, RIAA also 

 

339 Pariser T2 at 456. 

340 Courts have split as to the applicability of section 512 to pre-1972 sound recordings. See infra Chapter 

V.A.2.c. However, none of the stakeholders referred to this split in authority. 

341 EFF at 6-7. 
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appeared to question whether the section 512 “safe harbor” provisions apply to pre-1972 sound 

recordings.342 

B. Preservation 

1. Importance of Preservation 

Preservation of important cultural works is of great importance to the nation generally, 

and stakeholders interested in pre-1972 sound recordings are in agreement that they should be 

preserved. Preservation is often undertaken by specialized libraries and archives so that future 

stakeholders, such as reissue producers and scholars, will have access to a particular aspect of the 

national cultural patrimony. Preservation is also performed so that stakeholders in the present 

day may be able to use the recordings. As discussed above, in many cases the media on which 

these works are recorded are deteriorating;343 in other cases they are so fragile that the kind of 

playing necessary for scholarly study is simply unfeasible.344 And, as explained above, 

preservation of sound recordings today means digitization, which entails reproduction.345 

 

342 Pariser T1 at 276. 

343 J. Willard Marriott Library, University of Utah at 1 (“Many sound recordings produced before 1972 

require immediate duplication if they are to be preserved. Significant forms of physical degradation 

affecting ephemeral sound media – wire recordings, magnetic tape recordings, and acetate transcription 

discs – include permanent deformation and breaking, tearing, and delamination which can be irreparable. 

All duplication has to be performed in real time making all preservation projects time consuming and 

expensive. The media in question are already at high risk of loss simply because they reside on 

impermanent substrates.”); Buttler T1 at 46-47 (“I do know that some change needs to move forward or, 

otherwise, we're going to have a significant amount of material that is going to disappear from the historical 

record, and I don't think that's a good outcome just because we have a law that protects it for a really long 

time.”). 

344 See Loughney T1 at 69-70 (“I can testify to many formats now in the recorded sound collection of the 

Packard Campus of the Library of Congress that are deteriorating as we speak. These can be transcription 

disks, these can be wax cylinders, they can be more robust formats that have actually had quite a lot of 

longevity because they’ve been durable for four or five decades but are beginning to show signs of 

oxidation, shrinkage and all the other catalytic chemical reactions that can occur to these formats. Because 

they were never produced for longevity or for archival purposes; they were produced for home 

consumption and use in the marketplace, and it was never intended that they last forever.”). 

345 See supra Chapter III.B. Digitization brings its own set of problems. For example, the recordings must 

reside on a medium and in a format that can be easily migrated and transferred to more stable platforms as 
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2. Impact of Federalization upon Library and Archives Preservation 

Activities 

 Whether libraries and archives would engage in more preservation as the result of 

federalizing copyright protection for pre-1972 sound recordings appears to be an open question. 

Some representatives of libraries and archives contend application of a single set of norms – the 

federal copyright law – and the availability of the section 107 and 108 exceptions, would lead to 

more preservation activity with respect to pre-1972 sound recordings. However, opponents of 

federal protection asserted that it would discourage as much preservation activity as it would 

encourage, primarily for substantive reasons related to the federal exceptions. 

a. Likelihood of increased preservation 

At the very least, the relative certainty and consistency of federal copyright law provides 

a structural incentive for increased preservation of pre-1972 sound recordings. If a library, for 

example, were considering a program to digitize certain out-of-print 1930s 78 rpm phonorecords 

of Ukrainian music, a decision to forge ahead would be made easier if the library had to consider 

only federal copyright law, i.e., both the statute and its judicial interpretations. In the current 

environment, the library (or its counsel, if any) would at minimum have to consult the civil and 

criminal laws of the state in which it is located, along with the relevant judicial decisions which 

may not directly address sound recordings.346 With some notable exceptions,347 state civil and 

 they develop, and that is not beholden to outdated or obscure hardware or software in order to be played. 

These are far from trivial issues. 

346 See, e.g., LOC at 3 (“uncertain legal treatment even for preservation copying . . . makes archive and 

education officials reluctant to fundraise for, or allocate resources for the acquisition and preservation of 

the culturally valuable material.”); Syracuse at 4-5 (“any attempt to clear rights for the purpose of archival 

digitization requires [a library] to research and analyze several different areas of state’s laws – across at 

least three eras – to determine their applicability, potential exceptions, and possible penalties. Doing this 

work requires such a tremendous resource allocation that many institutions . . . simply may choose not to 

make historical works available, thereby leaving a huge gap in the nation’s cultural memory.”). 
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criminal laws do not include guidance as to what exceptions might apply, whereas federal law 

provides a library-specific exception (section108), a well-developed and continuously evolving 

limitation that has the added benefit of decades of judicial interpretation and commentary (section 

107), and the possibility of a robust public domain. To the extent these federal provisions are 

available, one would have to reasonably conclude that libraries and archives would have more 

clarity, and therefore more ability to make long term resource allocations, with respect to 

preservation copying.348

State copyright law does not have anything resembling these exceptions.349 Section 107 

– fair use – would be beneficial because courts have already applied it to the digital environment 

and will continue to do so. In some ways, it serves as a safety net (though by no means a 

panacea) where certain facts may favor the user over the copyright owner but where the four 

corners of section 108 are inapplicable. As cases relating to digital copying wind their way 

through the courts, section 107 will continue to evolve and libraries and archives across the 

country should be better able to create policies and practices in response. To the extent that these 

decisions come from appellate courts, libraries and archives throughout the United States could 

find themselves in a position to create national standards, rather than state-by-state projects, for 

pre-1972 sound recordings. 

 Section 108(h) provides an option not available in state law: it permits libraries and 

archives (and nonprofit educational institutions) to reproduce or distribute copies or phonorecords 

 347 See, e.g., CALIF. PENAL CODE §§ 653h, 653w (providing limited exceptions for “not-for-profit 

educational institutions”); see also EMI Records Ltd. v. Premise Media Corp., 2008 N.Y. Misc. LEXIS 

7845, at **14-15 (Sup. Ct. Aug. 8, 2008) (recognizing a fair use defense to copyright infringement of 

sound recordings in New York). 

348 SAA at 3 (“Providing a clear legal basis for preservation, therefore, would encourage archivists to be 

less risk-adverse when it comes to preservation. The explicit and broad preservation exception for 

unpublished material found in 108(b) would be a definite improvement over the current confused state of 

the law for the vast number of unpublished sound recordings housed in archival repositories.”). 

349 While it is likely that state courts presented with the issue would find that fair use is a defense to 

common law copyright infringement, we are aware of only a single state trial court case, EMI Records Ltd. 

v. Premise Media Corp., supra note 140, in which fair use has actually been applied. 
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of a work for purposes of preservation, scholarship, or research in its last 20 years of federal 

protection when the work is not subject to normal commercial exploitation and a copy or 

phonorecord of the work cannot be obtained at a reasonable price. Additionally, some library 

groups have noted that digitization plans are more likely to receive approval from a library 

general counsel if based on the applicability of federal exceptions rather than state law.350

Presumably, these federal provisions would lead to better funding for preservation – at 

least relative to state law. Indeed, some libraries and archives believe that funding for 

preservation is often contingent on their ability to provide public access. Under this perspective, 

federal law is preferable.351

Moreover, in some circumstances, federalization could result in some pre-1972 sound 

recordings entering the public domain significantly earlier than 2067.352 This would eliminate the 

legal barriers to preserving those recordings and making them available over the Internet. 

b. Likelihood of decreased preservation, or no change in preservation 

activities. 

 

 A number of commenters, both copyright owners and users, contended that federal 

protection for pre-1972 recordings was unlikely to change the amount of digital preservation, and 

in fact might discourage it. Some stakeholders commented that federal protection offers no 

preservation advantages over state protection. They maintained that, because neither state nor 

federal protection schemes inhibit legitimate preservation activities, moving pre-1972 sound 

 

350 See Brooks T1 at 194 (“Under a consistent regime, whether you like it or not, but a consistent and well 

understood and well studied [regime], and I think most counsels would understand something about federal 

law on this level . . . you would have far more certainty at that level about not only whether they could 

make it available, but if they want to legally make it available, how to go about doing it and what the fair 

use exceptions are, that kind of thing.”). 

351 See LOC at 3; Roach at 3 (“by bringing this class of recordings under Federal law, some clarity would 

be lent to the copyright status of pre-1972 sound recordings. As a result, funding agencies may be more 

likely to provide grants or other funding to both preservation and access projects.”). 

352 See infra Chapter VI.D. 
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recordings under the federal system will make no practical difference.353 Additionally, RIAA and 

A2IM stated that the effort involved in amending Title 17 to include pre-1972 sound recordings, 

and the resolution of the many legal issues, would divert right holders’ attention and resources 

“from more effective means to improve preservation and access” (i.e., partnerships with libraries 

and archives), hence leading to less preservation overall.354 “Preservation can only be furthered 

by financial resources and better cooperation between rightsholders and archival institutions,” 

they claimed, “rather than legal reforms.”355 This cooperation, maintained the right holder 

groups, is essential in order to provide libraries and archives with the money and technology they 

need to engage in best-practices digital preservation.356

ARL and ALA emphasized that the federal exceptions, particularly section 108, would 

limit preservation activities far more than state law currently does. They asserted that the risk of 

particular digitization activities being stymied by section 108’s limits on the number of copies 

that can be made, or by its published/unpublished distinctions, was not worth the benefits of 

federal protection overall.357 While they acknowledged that uses not currently allowed by section 

108 might still be permitted by section 107, they pointed out that, regardless of the exception, 

statutory damages and other remedies not available at state law would apply to digitization 

activities found to be infringing. This, they asserted, presents risks that must be weighed against 

whatever rewards are offered by federal protection.358 

 

353 RIAA/A2IM at 18-19 (“the RIAA and A2IM believe that in fact, since they know of no such instances 

of litigation for legitimate preservation activities by libraries or archives, that the copyright law – state or 

federal – is largely not a factor or hindrance, by itself, to preservation activity.”). 

354 Id. at 2. 

355 RIAA/A2IM Reply at 2. 

356 RIAA/A2IM at 7. 

357 ARL/ALA Reply at 4-6 (use of section 108 “risks the loss of important cultural artifacts, and raises the 

costs of preservation considerably and unnecessarily”). 

358 See id. at 2-3, 6; see also NAB Reply at 4 (“retroactive federal copyright protection for pre-1972 sound 

recordings could actually hinder preservation and access activities, as federalization would increase 
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C. Public Access 

1. Importance of Public Access

Providing some level of access to digitally preserved works is important because without 

it, preservation is often merely an academic exercise. Obviously, researchers and the public must 

have access to digitized pre-1972 sound recordings for the furtherance of public knowledge about 

our cultural patrimony, and for the light that these recordings can shine on the times in which they 

were recorded – basically, for the reasons we study film, literature, music, and any other product 

of the mind.359 Access also propels the “progress of science” in that current creators are able to 

build upon what has come before. 

A more nuanced point suggested by several stakeholders in the written and oral 

comments is that access is the key to obtaining funding for preservation.360 At a practical level, 

granting organizations are seemingly reluctant to fund projects that will have no visible public 

benefit.361 To the extent a project manager can apply funds not only to the preservation of 

 remedies and could increase potential liabilities for infringement, thereby increasing the risk involved in 

judging the legality of any particular use”). 

359 One commenter noted that, as a scholar focusing on music of the late 19th Century through the 1930s, 

he could upload prints and photographs to the web, but not sound recordings, a situation that he found 

“often blocks the academic sharing of sources in ways that could offer the best grounding for a study’s 

interpretations; the best sense of key historical, aural contexts for those sources; the best platform from 

which other scholars might assess, recontextualize, reinterpret, and teach from those sources; and the 

richest means by which students and the public could explore and learn from documents of our musical 

past.” Lancefield at 1. 

360 See, e.g., LOC at 3 (“preservation funding is often tied to the ability to make material available to the 

public”); SAA at 3 (“the funding and scope of preservation programs are closely related to the extent to 

which the preserved items can be made readily available for research use”). 

361 See MLA at 3 (“donors generally expect tangible results which show the funds were spent wisely. This 

becomes especially important when seeking follow-up grants or permanent institutional funding. Results 

are typically measured in terms of the project’s impact: the number of people who have used the materials, 

the dissertations, articles or books that are generated from it, etc. A digitization project which saves 

materials for the future but which cannot make them widely accessible, does not tend to be viewed 

favorably”). 
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important sound recordings, but also to making them available for the public to listen to, funding 

is more likely.362

One example of the importance of public access to receiving grants is the National 

Endowment for the Humanities (NEH) guidelines for humanities collections and reference 

resources grants. These describe the NEH’s expectation that the products of its grants will be 

publicly available, preferably through the Internet, and in fact forbid the use of grants for 

“preservation, organization, or description of materials that are not regularly accessible for 

research, education, or public programming.”363 The importance of public access to the awarding 

of NEH grants was emphasized by a program officer who said that for an application, failing to 

provide for availability of preserved materials would be a “fatal flaw.”364 

The key question, then, is not “should this be accessible?” but “when should this be 

accessible, in what way, and to whom”? Sometimes the rights of authors or other interested 

parties may caution against making preserved works immediately available to the public via the 

Internet, because of copyright or privacy considerations. At other times, immediate access may 

be appropriate, but perhaps only to select credentialed researchers, or only on the premises of the 

custodial institution. In general, some level of access appears to be a goal that all stakeholders in 

pre-1972 sound recordings can share.365

 

362 See Brylawski T1 at 51 (“But now as we compete for grants, as our institutions compete for grants with 

other institutions, those institutions that can provide access to their preserved materials are – we find are the 

ones that are getting funding. This was brought up in much of the oral testimony at the hearings in Los 

Angeles and New York that were conducted for the National Recording Preservation Board.”). 

363 See http://www.neh.gov/grants/guidelines/HCRR.html, last visited Dec. 1, 2011. 

364 Phone conversation with Charles Kolb, Senior Program Officer, National Endowment for the 

Humanities, Division of Preservation and Access, Nov. 10, 2011. 

365 See RIAA/A2IM at 4 (“The RIAA and A2IM take great pride and care in the preservation of the 

recordings in their respective catalogs, and consider it a part of their civic responsibility to work on or assist 

with the preservation of and access to all historical recordings, whether of commercial interest or not”). 
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2. Impact of Federalization upon Library and Archives Public Access 

Activities 

a. Types of access expected 

When libraries, archives, and scholars speak of “access” it is not always clear whether 

they are referring to the entire spectrum of access, from on-premises only to posting on a website, 

or only to one or the other end of that spectrum. In the proceedings for this Report, some stated 

definitively that only physical reissues or downloads could meet the access needs of the scholarly 

community.366 Others provided a range of access possibilities, from making digitized copies 

available to researchers and making copies for interlibrary loan, to creating digital exhibits and 

on-line curricula for independent learners.367 In addressing public access, comments from the 

user community consistently asserted that they had no intention of impinging on commercial 

activity, which they conceded was the proper sphere of the record companies.368 

b. Likelihood of increased public access 

Not every provision of public access to a work necessarily implicates an exclusive right. 

Nevertheless, most stakeholders from the user community maintained that federal protection 

would encourage the provision of public access.369 

 

366 See Brooks T1 at 110-12 (“I would be skeptical of considering streaming with no right to actually use 

the source sound document as constituting availability. We can debate that, but I would question that. On 

the other hand, availability through something like iTunes or something where you could actually get your 

hands on the file and hold the file and use and study the audio file might [constitute availability].”); but see

Starr-Gennett 7b at 2 (“Our goal as a not-for-profit educational institution is to interpret the contributions of 

Gennett Records partly by making digital versions of its recordings (as well as the actual records) available 

to researchers and by streaming the digital versions of the recordings to the general public through our own 

website or through arrangements with third parties.”). 

367 Harbeson T1 at 199-201. 

368 Loughney T1 at 203-04 (“It would be a real pressure valve to provide access without stepping on the 

rights of right holders or potential rights holders who might want to come in and relicense that material and 

reissue it, which I think is not our business and that’s your business, and we are happy to help you do it.”). 

369 See SAA at 5 (“Although the current provisions in Section 108, especially Sections 108(b) and 108(c), 

are inadequate at providing access in any meaningful way, the availability of provisions of Sections 108(d) 
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 In copyright parlance, “access” can take the form of distribution (when a copy or 

phonorecord of a work is disseminated to the public “by sale or other transfer of ownership, or by 

rental, lease, or lending”)370 or public performance (a limited right in the context of sound 

recordings, which extends only to public performances “by means of a digital audio 

transmission”).371 Streaming, whether interactive or noninteractive, implicates the public 

performance right. The rights of distribution and public performance are exclusive rights of the 

copyright owner, although the public performance right for digital audio transmissions is subject 

to a statutory license for noninteractive transmissions.372

 The distribution right is limited by section 109(a) of the Copyright Act (the “First Sale” 

exception),373 which provides that the owner of any copy of a work may sell, lend, or otherwise 

dispose of it. This is the exception that allows libraries and used bookstores to operate without 

paying royalties to authors or other right holders – for instance, by lending copies of a CD. There 

is not, however, a federal exception expressly allowing libraries to publicly perform works over 

the Internet (e.g., streaming). 

Federalizing protection would make access to pre-1972 sound recordings through 

libraries lawful in many instances in which state law rules are unclear at best. To the degree that 

access is by means of an on-premises visit – for example, to listen to a non-digitized 78 or LP —

federal protection would likely make little difference, since such listening has been going on for 

decades without any legal difficulties. If access involves listening to digitized sound recordings, 

such as by means of on-premises listening to an unpublished or replaced work copied under 

 and 108(e) would provide a definite improvement in access to non-musical sound recordings for local and 

remote users”); MLA at 6. 

370 17 U.S.C. § 106(3). 

371 17 U.S.C. § 106(6). 

372 17 U.S.C. § 114. 

373 17 U.S.C. § 109(a). 
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section 108, then federal protection would certainly lead to (or at least make lawful) increased 

access. It would do so through the application of sections 108(b) and 108(c), which permit onsite access to copies made for preservation and replacement purposes. The same conclusion 

applies to certain uses of a sound recording in the last 20 years of its term of protection (section 

108(h)), and to any uses that are legitimate under the fair use provision. These provisions would 

encourage the provision of public access, it was argued, by offering relatively clear and 

unambiguous exceptions that can be understood and implemented by libraries and archives.374

Additionally, federal protection might lead to increased access simply by virtue of putting 

pre-1972 sound recordings into the federal system. Once there, they will be eligible to benefit 

from any future changes to copyright law that may themselves directly affect public access, such 

as orphan works legislation or section 108 reform. 

 To the extent that federalization would result in some sound recordings entering the 

public domain before 2067 (discussed below in Chapter VI), access to those recordings would be 

substantially enhanced. 

Much of the commentary from libraries and archives regarding public access under 

federal protection implicitly assumed that the fair use provision (section 107) would support 

greater public access.375 The Office feels constrained to note, however, that unlike digital 

copying for preservation, as a general matter making protected works broadly available – 

particularly on the Internet – has a weaker claim to fair use since it risks undermining any current 

or future market for the work. Fair use does not ordinarily permit dissemination of a work in 

competition with the copyright owner or in ways that adversely affect the potential market for the 

work. On the other hand, fair use may permit a library, in appropriate circumstances, to make a 

 

374 LOC at 5. 

375 See, e.g., LOC at 5. 
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single copy of a copyrighted recording for a scholar or researcher even where the underlying 

work remains protected by copyright. 

c. Likelihood of decreased public access 

 Some stakeholders argued that federal protection may lead to decreased rather than 

increased access to pre-1972 sound recordings.376 Right holders argued that the tendency towards 

risk-aversion that currently restrains libraries and archives from using the gaps in state law to 

provide public access to their digitized works would operate in the same way under federal 

protection. They suggested that the uncertainty of fair use could further inhibit public access 

because it would hold users back.377 “The better goal” than seeking federal protection, the right 

holders maintained, 

is to encourage donation to public libraries and archives of master materials by 

record labels – large and small that cannot or are not able (for financial or other 

reasons) to preserve their own master materials – and to include access to such 

materials to the extent agreed upon. The same is true for bona fide record 

collectors and enthusiasts – of niche materials – to get more materials, especially 

rare cultural and historical materials, into public institutions, and ultimately to the 

general public.378

D. Economic Impact on Right Holders

 The economic impact of federal protection on those who own the rights in pre-1972 

sound recordings can be assessed in two ways. One way is to attempt to determine how federal 

protection will affect the value of pre-1972 sound recordings per se. That is, will the fact that a 

recording is protected by federal and not state law affect its worth in the marketplace? What 

aspects of federal protection will likely be most determinative? How does the nature of the effect 

change depending on what recording or group of recordings one is examining? 

 

376 See RIAA/A2IM at 20-21; ARL/ALA at 4-6. 

377 RIAA/A2IM at 20-21. 

378 Id. at 21. 
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 The second way of determining the economic impact of federal protection is to look at 

how federal protection might affect the settled business expectations of right holders. For 

example, if a contract is written with the expectation that state law will govern, what happens 

when the federal statute becomes the underlying law? Additionally, how would the federal rules 

governing initial ownership, transfer of ownership, termination of transfers and licenses, and 

registration affect a recording fixed under state law? The stakeholders had many views on these 

and related issues, which are set forth below. 

1. Value of Pre-1972 Sound Recordings 

 The present value of pre-1972 sound recordings varies substantially. There is a small 

number (proportionate to the total number of sound recordings made) of commercial recordings 

that continue to prove remunerative to their owners, such as titles by Louis Armstrong, Bing 

Crosby, Frank Sinatra, Elvis Presley, and the Beach Boys, and record companies are continuing 

to reissue sound recordings for niche markets.379 However, the vast majority of pre-1972 sound 

recordings are either unpublished (such as field recordings) or, if published, have ceased their 

commercial life.380 In particular, scholars pointed to pre-1925 recordings, stating that “an average 

of fewer than 4% of historically important pre-1925 recordings have been reissued in any form by 

right holders, and the revenue from that 4% has to be tiny given the lack of marketing of such 

reissues.”381 They also stated that 

Fundamentally, older recordings that are still economically viable are nearly 

always those made within the lifespan of contemporary record buyers. This has 

been true throughout the history of the marketing of sound recordings.382

 

 

379 Bengloff T1 at 121-22. 

380 See, e.g., SAA at 7. 

381 ARSC at 3. 

382 Id. at 4. 
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a. Benefits and disadvantages of federal protection 

Stakeholders presented competing views of how federal protection would affect the 

economic value of pre-1972 sound recordings. Given that most pre-1972 sound recordings likely 

have little or no economic life at all, the discussion centered on commercially released recordings. 

A primary concern about the economic effect of federal protection was the likelihood of 

early sound recordings entering the public domain, and thus becoming less profitable for their 

former right holders. ARSC maintained that right holders could still enjoy a modest income from 

selling public domain works, given that in many cases they would still own the master recordings 

and could lease these to reputable reissue labels.383 ARSC also pointed out that public domain 

reissues could be useful in identifying recordings with unexpected commercial viability, which 

the former right holder could then exploit.384 MLA cited the competitive trade in public domain 

books as evidence that earning money through works in the public domain is possible.385 RIAA, 

however, disagreed, saying that once a recording is available for free downloads, with no 

copyright for the uploader or the distribution site to worry about, the business model for record 

companies is extinguished: “there is all but zero value to a record company in a public domain 

recording.”386

Some stakeholders also maintained that, while the entry of early sound recordings into 

the public domain might not redound to the profit of the (former) copyright owner, it could create 

economic value for third-party reissue labels.387 Under this scenario, once libraries and archives 

 

383 ARSC at 7. 

384 See id.

385 Harbeson T1 at 179. 

386 Pariser T1 at 295. 

387 See MLA at 10 (“The commercial value of the recording and the commercial value to the current 

copyright holder are not the same thing. A copyright holder may, for lack of interest or knowledge, fail to 

exploit a work to its full commercial value. In such a case, the value to the owner would be less than the 

value of the recording. A measure of the commercial value of the recording should include not only the 
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preserve and make public domain sound recordings publicly accessible, such access will spur 

demand for consumer-ready packages of these recordings, which will help third-party labels388 (as 

well as, one supposes, the “original” labels that chose to compete in this sphere).389

b. Effect of exclusive rights 

Federal protection would, for the first time, allow pre-1972 sound recordings to enjoy a 

defined set of unambiguous, though limited, exclusive rights. Specifically, the owner of a 

copyright in a sound recording enjoys the exclusive rights of reproduction, preparation of 

derivative works, distribution, and public performance via a digital audio transmission.390 In 

contrast, the rights conferred by state law are typically either narrower or often ambiguous.391 

While some states’ civil statutes confer exclusive rights upon owners of copyrightable works,392

most do not. The economic effect of these additional exclusive rights conferred by federal law is 

that their holders are granted monopoly power over certain actions, and can exercise this power to 

their financial benefit by selling copies of the recordings, or licensing the rights to make 

derivative works from the recordings. 

 revenue it brings to the copyright holder, but all potential revenue that it could command.”); see also EFF 

at 12. 

388 See MLA at 10-11 (“bringing pre-1972 sound recordings under federal law best satisfies the 

Constitutional goals of copyright by insuring that as many lawfully-made recordings as possible are 

available to the public, whether it be through the marketplace or in libraries. Doing so can do no harm to 

the commercial viability of a recording; indeed, in some cases it may be beneficial by fostering renewed 

interest and demand.”). 

389 Harbeson T1 at 179. 

390 17 U.S.C. § 106. The exclusive right of public display does not apply to sound recordings. 

391 See supra, Chapter II.E. 

392 CAL. CIV. CODE § 980(a)(2) (“The author of an original work of authorship consisting of a sound 

recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 

2047, as against all persons except one who independently makes or duplicates another sound recording 

that does not directly or indirectly recapture the actual sounds fixed in such prior sound recording . . .”). 
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 One notable aspect of federal protection that could well affect the value of pre-1972 

sound recordings is the exclusive right “to perform the copyrighted work publicly by means of a 

digital audio transmission.”393 This is the legal mechanism, along with section 114, that insures 

royalty payments (and, in cases falling outside section 114’s exceptions and its statutory license, 

exclusive rights) to owners of sound recordings that are publicly performed via the Internet or 

satellite radio. Like the rest of federal copyright law, the public performance right only applies to 

works protected by federal law. Thus, pre-1972 sound recordings that presently do not earn 

public performance royalties could become a significant revenue stream once incorporated into 

the federal statute.394

c. “Long tail” effect on commercial prospects of older recordings 

A number of commenters, particularly ARSC, asserted that reissuing early (meaning, for 

the most part, acoustical-era) recordings is unlikely to be profitable. This point was made in the 

service of the argument that the movement of such early recordings into the public domain under 

federal protection would not negatively affect the record companies’ bottom line.395 In response, 

members of the right holder community maintained that (1) there is no way to truly know what 

old music styles will become popular again, and (2) it is necessary to retain state protection until 

2067 because the so-called “long tail” phenomenon suggests that these older works take longer to 

earn a return on their investment.396 

 

393 17 U.S.C. § 106(6). 

394 See Brylawski T1 at 174-75. 

395 See ARSC at 4. 

396 Bengloff T1 at 31, 33-34; see also Chris Anderson, THE LONG TAIL: WHY THE FUTURE OF BUSINESS IS 

SELLING LESS OF MORE (2006). 
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 ASRC, citing to the Brooks Study findings that 4% of pre-1925 recordings have been 

reissued by right holders, with an increase to 12% for 1925-1939 recordings,397 argued that these 

numbers showed that right holders historically have not put a lot of stock in the earning potential 

of early music reissues.398 Both A2IM and NMPA made the point that one can never assume 

what will ultimately prove commercially viable, particularly for smaller labels catering to niche 

audiences,399 and that it is too risky to base federal policy upon a presumption as to which pre1972 sound recordings will have value in the future.400 

 Additionally, A2IM explained that under the “long tail” theory, a large number of 

heretofore-“niche” cultural products will earn as much as the small number of blockbuster works 

when viewed over a longer period of time, because it has become easier to exploit niche markets. 

Hence, it argued, pre-1972 sound recordings that would have been allowed to go out of print in 

the past are now being kept in the marketplace on the theory that they and their audience will find 

each other.401 However, A2IM stated that bringing a high quality recording to market requires a 

financial investment, and in order for early recordings to earn the requisite return on investment 

they cannot be allowed to go into the public domain.402

 

2. Settled Expectations in Business Transactions 

The second way in which federal protection might affect the economic value of pre-1972 

sound recordings is by upsetting the settled business expectations of major sectors of the music 

 

397 ARSC at 3. 

398 See id. 

399 Bengloff T1 at 121; Rosenthal T1 at 62-63. 

400 Rosenthal T1 at 62-63. 

401 Bengloff T1 at 31-34. 

402 Id. (“As technology changes, we have to go back and increase the number of kilobytes that are available 

so our music sounds like it should be sounding, be able to deliver it, bring it to market and a variety of 

other areas.”). 
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industry. Stakeholders had very different views on the degree to which settled business practices 

might be altered, as well as on what economic impact such alteration would cause. All of the 

commenting parties were united, however, in wanting the least possible amount of disturbance to 

the current record company business model. Contractual arrangements, ownership, transfer, 

termination, and registration were among the topics addressed. 

a. Existing contractual arrangements 

 In their written comments, RIAA and A2IM pointed out that many of the pre-1972 sound 

recordings to which their members own the rights are licensed in both hard copy and in digital 

form through multiple contracts. These contracts are predicated upon state laws, and the right 

holders claimed that putting pre-1972 sound recordings under federal protection would “render 

many deals unclear (at best), make others more difficult to interpret, and would likely result in 

financial losses.”403 The contents of entire catalogs, they warned, could be tied up in court, with 

the possibility that the recordings at issue would be withdrawn from public availability.404 

Beyond financially harming the recording industry and decreasing public access to pre-1972 

sound recordings, RIAA also predicted that these complications would divert record companies 

from engaging in cooperative access programs with libraries and archives.405

 In response to the expressed concerns about contract uncertainties, user groups stated that 

the contract issues “would continue to be resolved under state law as they had before” federal 

protection. 

This raises an important point, that the degree to which contracts, as well as ownership, 

termination, and other matters discussed later in this Chapter are affected will be determined not 

 

403 RIAA/A2IM at 31. 

404 Schwartz T1 at 23; see also Rosenthal T1 at 245-46. 

405 Schwartz T1 at 23. 
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by federal protection itself, but by the manner in which it is achieved – specifically, how federal 

copyright law will apply, and in what cases state laws would continue to control. These questions 

are addressed in detail in Chapter VI of this Report. 

b. Ownership, including transfer, termination, and registration 

 The RIAA and A2IM stressed in their written and oral comments the great degree to 

which questions of ownership (such as transfer and termination) and related responsibilities (such 

as registration) would be thrown into chaos upon the institution of federal protection for pre-1972 

sound recordings. In other words, 

all of the legal uncertainty and what we think would be litigation and other sorts 

of ways of sorting out how to deal with things like ownership and authorship and 

term and all that, it just detracts from the economic value of the rights.406

Recall that, when discussing preservation and access, libraries and archives were portrayed as 

overly risk-averse, and claimed they should not be forced to work under such legal uncertainty. 

In the discussion of how federal protection would affect ownership and related matters, the roles 

have switched, with record companies claiming they will be unfairly forced to face uncertainty, 

and user groups claiming that the cited risks being pointed out were overblown or nonexistent. 

 Regarding initial ownership (and it should be kept in mind that the following discussions 

will be expanded upon in Chapter VI), right holders expressed concern that what was clear under 

state laws would be unclear, or even invalidated, once ownership documents and chain of title 

were examined under federal law.407 For example, it was noted that in some states ownership 

passes with the possession of the physical master recording, a situation that does not exist under 

federal law.408 This conflict, warned the RIAA and A2IM, would lead to uncertainty and even 

 

406 Chertkof T1 at 176-77. 

407 RIAA/A2IM at 26-27. 

408 RIAA/A2IM at 26; Feaster at 8-9. 
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litigation in the course of attempting to reconcile the state and federal standards.409 Another 

ownership concern was related to “works-made-for-hire”: would a recording considered to be a 

work made for hire under state law at the time of its creation have to be reconsidered under the 

federal copyright law standards?410 If such a reconsideration created a different ownership 

interest, how would this affect downstream contracts and licenses?411 These conflicts, warned 

RIAA and A2IM, would lead to uncertainty and litigation in the course of attempting to reconcile 

the state and federal standards.412 

 The problems caused by differing interpretations of initial ownership would be 

compounded, according to the RIAA and A2IM, when considering transfer of title (how can you 

transfer if you do not know the owner?) and termination of transfers and licenses (when a deal is 

struck in the absence of a termination provision, is it fair to subsequently seek to terminate the 

transfer?). 

 Stakeholders representing users of pre-1972 sound recordings had varied responses to 

these right holders’ concerns. The SAA pointed out that a similar “federalization” of stateprotected works (namely unpublished works) occurred by reason of section 301(a) of the 

Copyright Act of 1976, and that it was unaware of any cases involving such works that hinged 

upon state definitions of ownership.413 SAA conceded, however, that determining whether or not 

a recording was a work made for hire would be difficult.414 ARSC took another position on the 

work made for hire issue, saying that “early sound recordings were generally made under true 

 

409 RIAA/A2IM at 27. 

410 See id. at 26. 

411 See id. at 24-25. 

412 RIAA/A2IM at 27. 

413 SAA at 7-8. 

414 See id. at 8. 
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employment conditions; these works would, therefore, qualify as works made for hire.”415 ARSC 

also pointed out that, for commercial recordings, the vast majority of commercial recordings 

continue to be owned by a known entity, and that the real problem is in determining who owns 

orphan and unpublished works.416 Finally, ARSC also asserted that ownership simply wouldn’t 

be affected by the advent of federal protection for pre-1972 sound recordings because 

federal copyright in a pre-1972 sound recording would vest in the initial owner of 

the work as determined by the law of the state with the most significant 

relationship to the sound recordings and the parties, and no divestiture or transfer 

of rights would result.417

 With respect to termination of transfers and licenses of rights in pre-1972 sound 

recordings, one stakeholder commented that even if federal protection applies, pre-1923 sound 

recordings should continue to be exempt from the termination provision on the grounds that 

termination in general is contrary to free-market principles.418 Another disagreed, arguing that 

performers of pre-1972 sound recordings should enjoy the same right of termination that their 

post-1972 colleagues enjoy.419 

 Copyright registration was another issue that right holders raised. Timely registration is 

required to preserve a copyright holder’s ability to use the registration certificate as prima facie

evidence of the validity of the copyright and the facts stated in the certificate.420 Timely 

registration is also required for a copyright owner to be eligible for statutory damages and 

 

415 ARSC Reply at 18. 

416 ARSC at 4-5. 

417 ARSC Reply at 13. 

418 Hoffman Reply at 1. 

419 Artist’s Reprieve Reply at 1-2. 

420 17 USC § 410(c). The certificate has prima facie weight only if registration was made before or within 

five years after first publication of the work. 
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attorney’s fees as the prevailing party in an infringement suit.421 Under section 411 of the 

Copyright Act, a right holder may not sue for infringement of a U.S. work unless it first registers 

the work with the U.S. Copyright Office. While some right holders register only just before 

going to court, the preferred method is to register upon creation or publication,422 which preserves 

the ability under section 412 to seek an award of statutory damages and attorney’s fees. 

Obviously, no pre-1972 sound recordings have been registered, because federal copyright law 

does not apply to them. If federal protection applies, will registration become a problematic 

issue? A2IM noted that 

To be able to defend your rights, you have to register your music. It would be a 

burden in terms of manpower, finances, and a variety of other ways for us to 

continue to protect our pre-1972 copyrights if they were federalized. A real cost 

burden.423

Alternatively, RIAA expressed concern that sudden imposition of a registration requirement 

would mean that pre-1972 sound recordings would be “devoid of effective remedies” under 

federal protection.424 In response, ARSC said it would be “delighted” if federal protection 

produced a torrent of new sound recording registrations because it would “promote predictability 

and public access to these works, as well as aid in the preservation of historic recordings.”425

 

421 A prevailing plaintiff may seek an award of statutory damages and attorney’s fees only if the infringed 

work was registered prior to the commencement of the infringement or within three months after first 

publication of the work. 17 U.S.C. § 412. Different rules apply to works that have been “preregistered” 

under section 408(f), but no pre-1972 sound recordings would qualify for preregistration. See id. 

422 Pariser T1 at 281. 

423 Bengloff T1 at 31. 

424 RIAA at 30. 

425 ARSC Reply at 18. 
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c. Potential for a decrease in availability of pre-1972 sound 

recordings as result of business burdens 

RIAA and A2IM warned that the burdens caused by a “protracted legislative process” 

could redirect their members’ resources away from cooperative preservation and access programs 

such as the Library of Congress’s National Jukebox.426 They also raised the specter of “a freeze 

on availability of many pre-1972 sound recordings” due to difficulties in tracing ownership.427

Finally, A2IM suggested that the costs of dealing with ownership issues and registration could 

mean “less and less investment” in indigenous American music of the sort that demonstrates 

“America’s cultural diversity and tradition.”428

Concerning the potential of a “freeze” on availability of pre-1972 sound recordings, 

ARSC pointed out that “even traditional categories of works prepared before 1978 require a caseby-case examination to determine the federal rights as of the date of preemption; the complete 

freeze suggested by the RIAA/A2IM has not resulted from such a requirement.”429 The real 

source of scarce availability, ARSC said, is the confusion about which state laws apply and how 

to apply them.430

D. Alternatives to Federalization 

 Stakeholders were asked to address the possibility of bringing pre-1972 sound recordings 

under federal law only for limited purposes. The Notice of Inquiry noted that some stakeholders 

seek to ensure that current state law rights in pre-1972 sound recordings are subject to the fair use 

doctrine and the library and archives exceptions found in sections 107 and 108, respectively, of 

 

426 RIAA/A2IM at 5. 

427 Id. at 27. 

428 Bengloff T1 at 31-34. 

429 ARSC Reply at 13. 

430 See id. at 14-15. 
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the Copyright Act. It also noted that some would like to subject pre-1972 sound recordings to the 

section 114 statutory license, but otherwise keep them within the protection of state law rather 

than federal copyright law. The Office received a variety of comments in response to the 

proposals referred to in the notice, as well as some new proposals for alternatives to federalization 

of pre-1972 sound recordings. 

1. Partial Federalization (e.g., only applying sections 107, 108 and/or 114) 

 The Notice of Inquiry raised the possibility of bringing pre-1972 sound recordings under 

federal law only for limited purposes, i.e., retaining state law protection for the recordings but 

subjecting them to the defenses provided by sections 107 and 108 of the Copyright Act and/or to 

the statutory license provided by section 114 of the Copyright Act. 

a. Sections 107 and 108

 Several parties, including SAA, LOC, RIAA and A2IM, expressed the view that partial 

federalization would be inappropriate. SAA offered that partial federalization would not resolve 

the current complexity that impedes preservation and access for pre-1972 sound recordings, but 

instead would merely add to the confusion and legal fees.431 LOC agreed that partial 

federalization would lead to more confusion regarding the boundaries of federal and state 

protection.432 RIAA and A2IM stated their belief that there are no advantages to providing partial 

federalization, and that overwhelming legal challenges would ensue.433 

 ARSC commented that partial federalization that simply applied the fair use doctrine and 

the library and archives exceptions found in sections 107 and 108 to currently held state rights in 

 

431 SAA at 10-11. 

432 LOC at 12. 

433 RIAA/A2IM at 30-31. 
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pre-1972 sound recordings would be “extremely messy” in the real world. It added that such a 

proposal would unfairly privilege certain institutions, which did not fall within the section 108 

criteria.434 ARSC, while supporting full federalization, endorsed partial federalization to the 

extent necessary to ensure that First Amendment safeguards that are built into the current 

Copyright Act are applicable to pre-1972 sound recordings. In its view, without the fair use 

doctrine and the library and archives exceptions found in sections 107 and 108, state copyright 

laws regarding pre-1972 sound recordings could be subject to invalidation on Constitutional 

grounds.435 MLA, while generally favoring complete federalization, reluctantly supported partial 

federalization over the status quo.

436 

b. Section 114 

In 1995, Congress passed the Digital Performance Right in Sound Recordings Act of 

1995 (“DPRA”)437 which, for the first time, granted to copyright owners of sound recordings an 

exclusive right to make public performances of their works by means of certain digital audio 

transmissions, subject to a compulsory license for certain uses of these works codified in section 

114 of title 17 of the United States Code. In the Digital Millennium Copyright Act of 1998 

(“DMCA”),438 Congress updated section 114 and expanded the scope of the compulsory license. 

 

434 ARSC at 7. In its comment, ARSC identified organizations in Europe, where the “widespread 

availability of historical public domain recordings ... is precisely because anyone can make them 

available.” Id. 

 

435 ARSC Reply at 19-20. However, in its initial comment, ARSC observed that partial federalization that 

simply applied the fair use doctrine and the library and archives exceptions found in sections 107 and 108 

to currently held state rights in pre-1972 sound recordings would be “extremely messy” in the real world. 

ARSC at 7. 

436 MLA at 15-16. 

437 Pub. L. No. 104-39, 109 Stat. 336 (1995). 

438 Pub. L. No. 105-304, 112 Stat. 2286 (1998). Section 112 of the Copyright Act, 17 U.S.C. § 112, was 

also amended to provide a statutory license for the making of certain “ephemeral” copies “used solely for 

the transmitting organization’s own transmissions originating in the United States” under the section 114 
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The result is that sound recordings are subject to a compulsory license for public performances by 

means of certain nonexempt, noninteractive digital subscription digital audio transmissions. All 

other public performances of sound recordings by means of certain digital audio transmissions, 

including interactive digital transmissions, are subject to an unfettered exclusive right.439 The 

Office’s Notice of Inquiry asked for input on the impact of bringing pre-1972 sound recordings 

into the section 114 statutory licensing mechanism, perhaps as an alternative to full federalization 

of protection for pre-1972 sound recordings.440 

 In its comments, SoundExchange stated that, while there is no need to completely 

federalize pre-1972 sound recordings, there would be a benefit to requiring statutory services to 

pay under the statutory license for pre-1972 sound recordings presently protected as a matter of 

state law. It estimated that pre-1972 sound recordings account for 10-15% of usage by services 

employing the section 114 license. It also observed that some services that publicly perform 

sound recordings by means of digital audio transmissions are already making statutory royalty 

payments under the section 114 license for pre-1972 sound recordings. It contended that such 

payments for public performance of pre-1972 sound recordings are appropriate, and that 

performances of pre-1972 sound recordings are subject to protection under state law, including a 

state law performance right.441 

 Both NAB and SiriusXM disputed SoundExchange’s view that state law provides a 

public performance right in pre-1972 sound recordings.442 NAB explained that SoundExchange 

was referring to statutory and case law that is designed to address bootlegging and establish 

 statutory license. Because the section 112 statutory license and the section 114 statutory license go hand in 

hand, this Report shall not specifically discuss the section 112 license beyond this footnote. 

439 17 U.S.C. § 114. 

440 Notice of Inquiry at 67780, 67781. 

441 SoundExchange at 4-6. 

442 SiriusXM Reply at 8-10; NAB Reply at 7-8. 
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reproduction and distribution rights and claims regarding unfair competition. It asserted that such 

law does not establish public performance rights.443 SiriusXM added that requiring statutory 

services to pay under the statutory license for recordings currently protected under state law 

would provide an undeserved windfall for recordings created and paid for more than 40 years 

ago, at the expense of services like Sirius XM. It also noted that to the extent that any services 

are mistakenly making payments for public performance of pre-1972 sound recordings, that 

SoundExchange should not be accepting or distributing such payments.444

2. Limits on Remedies 

 At the public meeting, RIAA offered the concept of a registry containing data about pre1972 sound recordings which libraries and archives sought to preserve and to which they sought 

to provide access.445 This concept was also mentioned by Sony Music Entertainment, which 

suggested the possibility that libraries and archives could publicly state their intention to use 

certain identified works and have “some kind of potential immunity from litigation or prosecution 

or statutory damages.”446 MLA expressed interest in the value of such a proposal, and at the same 

time agreed that many details would need to be addressed.447

 In a discussion with the Office subsequent to the roundtable, the NMPA also raised the 

concept of limiting remedies for good-faith preservation and public access uses of pre-1972 

sound recordings that are determined to be orphan works. As an alternative to a registry, NMPA 

suggested a requirement of due diligence in the user’s search for the owner of a pre-1972 sound 

 

443 NAB Reply at 7-8. 

444 SiriusXM Reply at 5-6. 

445 Chertkof T1 at 153. 

446 Aronow T1 at 247-49. 

447 Harbeson T1 at 264. 
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recording, and suggested that the due diligence standard might vary according to the age of the 

work. Those who fulfilled the due diligence standard and used pre-1972 sound recordings that 

were therefore determined to be orphan works would be subject only to limited damages, perhaps 

only to injunctive relief.448 

3. No Amendments to Federal Law, but Amendments to State Law Instead 

 At the public meeting, RIAA offered the possibility of amending state laws to provide 

explicitly that preservation copying and providing certain types of access for older sound 

recordings is permissible.449 In response to this proposal, MLA raised concerns about the 

inevitable lack of uniformity that would result from pursuing legislative amendments to state laws 

to deal with what it perceives as a problem with broader scope. MLA noted that separate 

provisions in each state would require libraries and archives to operate in a manner that complied 

with the specifics of all, including the most restrictive, state provisions.450 RIAA acknowledged 

MLA’s concerns regarding uniformity, but suggested that amendments to state law were still a 

good way to begin to address libraries and archives’ concerns.451 It proposed that libraries, and 

archives and right holders work together to draft a model state law. It indicated that such a model 

state law could include “state fair use rights,” and that the parties could jointly introduce it to the 

various state legislatures, beginning with the states that are already home to important 

preservation and archival facilities.452

 The concept of a model state law received additional attention in a subsequent roundtable 

session. Tomas Lipinski of the School of Library and Information Science at Indiana University 

 

448 Copyright Office meeting with NMPA (June 21, 2011). 

449 Schwartz T1 at 95-96. 

450 Harbeson T1 at 95-97. 

451 Schwartz T1 at 97. 

452 Chertkof T1 at 145-47. 
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suggested that approaching state law reforms in a manner similar to the Uniform Commercial 

Code could help address issues of uniformity in the accommodations provided to libraries and 

archives from one state to another. Mr. Lipinski acknowledged that the disadvantages of this 

approach would include the risk of non-adoption or variation, and the fact that some sound 

recordings would be covered by state law and some sound recordings would continue to be 

covered by federal law.453 He also clarified that a model state law would need to establish fair 

use along the lines already established by federal case law.454 Dwayne Buttler of University of 

Louisville acknowledged the value in a model state law approach, especially one that included 

fair use and accommodations such as those found in section 108. However, he also expressed 

concerns about accomplishing universal implementation of any model law.455 ARL expressed its 

view that a model state law which filled in details regarding accommodations setting out fair use 

and other exceptions for libraries and archives would be a wonderful alternative to 

federalization.456 While MLA reiterated its general opposition to solutions that fell short of full 

federalization, it also noted that state law reforms could help its members considerably, especially 

if such reforms included state fair use provisions.457 RIAA reiterated its support for reforming 

state laws and expressed optimism about developing a dialogue and working relationship with 

libraries and archives that can address preservation of and access of pre-72 sound recordings.458

 

453 Lipinski T2 at 474-76. 

454 Lipinski T2 at 509. 

455 Buttler T2 at 481. 

456 Butler T2 at 482. 

457 Harbeson T2 at 477-78. 

458 Marks T2 at 485-87. 
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4. No Amendments to Federal Law, but Use Private Agreements Instead 

 RIAA and A2IM pointed toward significant progress in the preservation of and access to 

pre-1972 sound recordings achieved through private two-party agreements, such as the National 

Jukebox and other private agreements with archives.459 Sony Music Entertainment suggested that 

similar private agreements could yield further positive results and should be pursued in place of 

federalization.460 Representatives of libraries and archives observed that private agreements, 

while laudable, are too limited in scope, since they address only those parties who enter into 

private relationships with right holders.461 

 In addition to private two-party agreements, RIAA raised the prospect of a third party 

entity, one that is not as risk-averse as libraries and archives, functioning as a clearinghouse that 

could provide digital access, in a manner similar to that provided by iTunes, to pre-1972 sound 

recordings for libraries and archives.462 The Society for American Music (SAM) subsequently 

suggested the possibility of establishing a for-profit or non-profit trust that could receive 

donations or licenses from right holders that could be used to serve the preservation and access 

needs of libraries and archives.463 MLA expressed concern with such a plan because of the poor 

quality of digital files for research purposes.464 

 In the public meeting, RIAA also introduced the notion of a consent-not-to-sue 

agreement that would be generally offered to libraries and archives for certain uses similar to 

those that would be included in a model state law.465 While several libraries and archive groups 

 

459 RIAA/A2IM at 16-17. 

460 Aronow T1 at 103-04. 

461 ARSC Reply at 3-4. 

462 Marks T2 at 488. 

463 Brylawski T2 at 499-500. 

464 Harbeson T2 at 503-04. 

465 Marks T2 at 488. 
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expressed interest in various private agreement models and a willingness to engage in further 

dialogue, the consent-not-to-sue proposal did not result in any specific positive or negative 

feedback from libraries and archive groups. 
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Tape deck 

V. DESIRABILITY OF FEDERALIZATION 

While there are legitimate policy arguments on both sides of the question, the Copyright 

Office has determined that on balance, the better course of action is to bring pre-1972 sound 

recordings under federal jurisdiction. 

When Congress abolished state common law copyright and brought almost all works of 

authorship within the scope of the federal copyright statute in the Copyright Act of 1976, it did so 

in order to substitute “a single Federal system for the present anachronistic, uncertain, 

impractical, and highly complicated dual system.” It concluded that “the bill would greatly 

improve the operation of the copyright law and would be much more effective in carrying out the 

basic constitutional aims of uniformity and the promotion of writing and scholarship.”466 

Congress offered four reasons for abolishing the dual system: (1) to promote national uniformity 

and to avoid the practical difficulties of determining and enforcing an author’s rights under the 

differing laws and in the separate courts of the various States; (2) because “publication” no longer 

served as a clear and practical dividing line between common law and statutory protection; (3) to 

 

466 H. R. REP. NO. 94-1476, at 129 (1976). 
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implement the “limited Times” provision of the Copyright Clause, by abrogating the state law 

system of perpetual copyright for unpublished works; and (4) to “adopt a uniform national 

copyright system [that] would greatly improve international dealings in copyrighted material.”467 

It is the first reason offered by Congress in 1976 that is most pertinent to whether pre1972 sound recordings should be brought into the federal statutory scheme.468 National 

uniformity of copyright law ensures that all users, consumers, intermediaries, and right holders 

are operating under a single, consistent set of laws. This has been the goal of copyright law since 

1790, and federal protection for pre-1972 sound recordings would be the last step in making it a 

reality. A uniform national law also would ensure that all who operate under it would know what 

rights and exceptions apply to their activities. 

National uniformity and clarity are particularly important in the digital era, when libraries 

and archives must reproduce works in order to preserve them and in many cases wish to make 

them publicly accessible by means of distribution of phonorecords or by transmissions of public 

performances. With a single set of applicable laws, even the most risk-averse institution can 

make informed decisions as to what laws and what exceptions apply to its activities. 

Why Congress did not incorporate pre-1972 sound recordings into the federal statute in 

1976 is an interesting question, but neither the stakeholders nor the Copyright Office have an 

answer to it. In fact, the reasons that compelled Congress to create a unitary federal copyright 

system in the 1976 Act justify inclusion of pre-1972 sound recordings in that federal system 

today. The policy considerations addressed above – certainty and consistency, preservation, 

public access, and avoiding economic harm – all fall on the side of seeking federal protection for 

pre-1972 sound recordings. 

 

467 Id. at 129-30. 

468 However, reasons (3) and (4) are also applicable. Congress abrogated perpetual protection of pre-1972 

sound recordings in the Copyright Act of 1976, but implementation of the recommendations set forth below 

would allow many of those works to enter the public domain before 2067. And bringing pre-1972 sound 

recordings into the federal statute will complete the process of adopting a national uniform copyright 

system, thereby facilitating international dealings in copyrighted material. 
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 For those reasons, federalization should apply almost all parts of Title 17 to pre-1972 

sound recordings, including for example 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),469 section 

111 (statutory license for cable retransmission of primary transmissions), section 112 (ephemeral 

recordings), 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 (technological protection and copyright management 

information). Some parts of Title 17 will require modification to apply to pre-1972 sound 

recordings because the recordings were initially created, and in some cases exploited, outside the 

federal system. 

To be clear, there are practical issues in implementing federalization, as noted by some 

stakeholders. However, the Office believes that those objections can be addressed. Likewise, 

while the Office appreciates the careful thought put into alternatives to federal protection, it finds 

that the proffered solutions would not go far enough to cure the difficulties caused by the current 

state-by-state regime. 

A. Certainty and Consistency in Copyright Law 

Both ARL and ALA have noted, and the Copyright Office agrees, that traditional library 

and archives activities are unlikely to violate state criminal sound recording piracy statutes. The 

Office, like the Section 108 Study Group, also believes that the section 108 exceptions for 

libraries and archives are out of date and should be updated.470 However, these points do not 

compel the conclusion that the uncertainty of state law is preferable to federal protection. In fact, 

 

469 Note, however, that most of the subsections of section 110 do not apply to sound recordings. Only 

sections 110(1), (2), and (5) apply to sound recordings, among other categories of works. 

470 See supra Chapter III.B.2.a. 
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the reluctance of many sound recording archivists and librarians to preserve and make accessible 

pre-1972 sound recordings in cases where state law does not explicitly prohibit acts of 

preservation leads to the opposite conclusion. 

The permissible scope of activities in which libraries and archives can engage under state 

civil law is more ambiguous than under criminal law, due to the variations among the states and 

the lack of established copyright exceptions.471 The possibility that a library’s activities in one 

state might subject it to the laws of another state where the scope of protection is different – a 

significant risk when works are made available online – creates additional uncertainty. Such 

uncertainty unfairly favors those willing to test legal limits while disfavoring the risk-averse. 

Federal protection would not eliminate the uncertainty, but it would equalize rights and 

exceptions that would be applicable to sound recordings of all vintages. Section 108(h) may be 

especially helpful: this provision offers a clear exception for libraries and archives to engage in 

reproduction or distribution activities “for preservation, scholarship, or research” in the last 20 

years of the term of protection of any published work.472 Given the concern that many 

commenters expressed regarding the length of copyright protection, this exception should prove 

quite helpful in providing broader access to many pre-1972 sound recordings. 

RIAA and A2IM have asserted that federal protection will actually create more 

uncertainty for their member companies because of their long-standing reliance upon state law. 

The Office does not take this reliance lightly. However, (1) the member companies of RIAA and 

A2IM own but a small fraction of pre-1972 sound recordings (when non-commercial recordings 

are taken into account), and of these, but a small fraction appear to enjoy any degree of 

commercial viability, and (2) the record companies are presumably just as familiar with federal 

copyright law, given their post-1972 recordings, as with state law, and should be able to 

 

471 It should be kept in mind that civil actions are much more likely than criminal prosecutions in the 

context of activities by libraries and archives. 

472 17 U.S.C. § 108(h). 
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maneuver within the federal system. Additionally, one must weigh the possibility of uncertainty 

raised by RIAA and A2IM member companies under a federal system with the actual and 

documented uncertainty faced by libraries and archives under the multiple state systems. Finally, 

RIAA and A2IM raised the point that ownership of pre-1972 sound recordings may be difficult to 

resolve. Ownership challenges are real, but they can be addressed by stating that for all pre-1972 

sound recordings newly brought into the federal system, the ownership on the day of enactment 

will be the same as the ownership on the day prior to enactment. (This would require a simple 

amendment to the Copyright Act and is further discussed below in Chapter VI.) 

Most of the user groups who commented during the study stated that applying federal law 

would be, without more, a clear benefit simply from the perspective of providing consistent legal 

guidance. The Office agrees with this position, and believes that it conforms with the intent of 

Congress in 1976 when it sought to unify all kinds of copyrighted works (but one) under federal 

law. Moreover, once ensconced within the federal system, pre-1972 sound recordings will 

benefit from any changes made to Title 17 in the future, such as orphan works legislation or 

amendments to section 108.473 

B. Promotion of Preservation and Appropriate Public Access

The Office believes that preservation of and provision of access to pre-1972 sound 

recordings, as afforded by federal statutory exceptions to copyright law, would provide an 

important public benefit. This is particularly true given the fragile physical state of many such 

recordings and the inaccessibility of so much of the nation’s audio heritage. The Office also 

credits the claims by libraries and archives that reliance upon federal exceptions will lead to more 

 

473 These issues have seen considerable policy study and discussion in recent years and both are priorities 

of the U.S. Copyright Office. See Priorities and Special Projects of the United States Copyright Office at 

7-8. 
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preservation and more public access, both from a structural (certainty and consistency of risk) and 

substantive (use of the section 108 and fair use exceptions) point of view. 

As illustrated in Chapter IV, federal protection will likely save libraries and archives 

money and resources simply by virtue of providing a single source of law to consult when 

engaging in preservation or public access activities. Furthermore, the Office credits the argument 

that a legal advisor, such as a general counsel, will be more likely to approve a project that is 

consistent with federal norms that have been explicated in a statute and through litigation and 

commentary, rather than one based on uncertain or amorphous state law. 474 

A second structural element of federal copyright protection that is likely to encourage 

preservation and public access activities is the probability that if protection is federalized, some 

sound recordings will enter the public domain within the lifetime of today’s practitioners. As 

explained below in Chapter VI.C., one key aspect of the Office’s recommendations is that early 

sound recordings not available in the marketplace within a reasonable period after the effective 

date of legislation federalizing protection should enter the public domain at the end of a transition 

period. In addition, the terms of post-1923 works will expire – again, absent a showing of public 

availability – on the same schedule as other works of that vintage. 

Substantively, the use of section 108 and the fair use exception should encourage more 

preservation and public access because they provide time-tested rules with which libraries and 

archives have experience. With respect to section 108, those rules offer specific safe harbors. 

And fair use offers the flexibility to address situations that do not meet the requirements of a 

section 108 provision but which nonetheless justify, under particular facts, an exemption from 

liability. One specific element of section 108 in particular should prove useful: the section 

108(b) exception for making preservation copies of unpublished works. Because the majority of 

pre-1972 sound recordings are unpublished, risk-averse institutions with collections of such 

 

474 See supra Chapter IV.C.2.a. 
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works would have clear legal guidance that digitizing for preservation and for deposit with other 

institutions under the terms of section 108(b) is a permissible activity. 

 “Access” is a term of art that itself raises complex questions of law and fact. As 

discussed above in Chapter IV.C, it can mean anything from making sound recordings available 

for on-premises listening to posting them online for downloading. Some commenters appeared to 

assume that federal protection, and fair use in particular, would necessarily permit the latter. In 

the Office’s view, federal protection would simply make providing public access to pre-1972 

sound recordings subject to the same principles applicable to other categories of copyrighted 

works. In the case of sections 108 and 107, they may allow some limited online access, but they 

would not permit the mass posting of entire works on the Internet for unrestricted downloading or 

streaming. 

The Office believes that all of these considerations are important. Moreover, they are as 

critical to access as they are to preservation. Federalization would allow preservation of and 

access to more pre-1972 sound recordings, as well as finally bringing all fixed works of 

authorship under a federal system. The key question addressed below is how to implement a 

federalization scheme without harming the economic interests of right holders.475 

C. Avoiding Economic Harm to Right Holders 

In general, the Office believes that federalization along the lines proposed in this Report 

will not harm the reasonable economic interests of right holders because special provisions can be 

crafted to confirm ownership and term of protection. By “reasonable,” it should be understood 

that the Office seeks to preserve right holders’ ability to legitimately exploit economically viable 

 

475 Bringing pre-1972 sound recordings into the federal system would also enhance access because online 

music services and satellite radio services operating under the section 114 statutory license would have 

clear authorization to make digital transmissions of public performances of those recordings. 
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assets, but not to prevent third parties from using pre-1972 sound recordings in ways consistent 

with federal copyright law. 

Under a federal scheme, right holders will have their pre-1972 sound recordings subject 

to the same rights and exceptions as their post-1972 recordings, as well as the same provisions 

regarding damages and statutory licenses. Federal protection has largely developed in the United 

States because it is better for right holders, not worse, a fact supported by how strongly the 

recording industry fought for inclusion of sound recordings in the federal copyright law.476 And 

just as users of protected sound recordings will benefit from any new exceptions and limitations 

Congress may enact in the future, so too will right holders enjoy additional rights that may 

develop, and in this case, additional rights that already exist in federal but not state law. The 

digital public performance right in section 106(6) is the prime example. This right is not explicit 

in state law and not yet recognized by any state courts but provides revenue for the owners of 

sound recordings under section 114. 

Some right holders have suggested that, should early recordings go into the public 

domain before 2067, they would be deprived of anticipated revenue, even if such recordings have 

been commercially dormant for decades. This argument is based upon the “long tail” theory that 

the ability to keep works commercially available, and reach niche markets, allows the right holder 

to continue to earn revenue indefinitely. Certainly, the legitimate investments of right holders are 

important, but most of the recordings that would go into the public domain immediately upon (or 

soon after) federalization are so old, obscure, and poor-sounding to modern ears that they are 

mainly of interest to scholars and hobbyists, and would fail to earn a meaningful return on 

investment for a record company, particularly given the expense of preparing reissues that the 

RIAA and A2IM noted. History shows, in fact, that record companies have heretofore reissued 

 

476 In fact, at least at times during the process that led to the general revision of the copyright law and the 

enactment of the Copyright Act of 1976, the recording industry supported bringing pre-1972 sound 

recordings into the federal statute. See, e.g., Hearings on S. 597 Before the Subcomm. on Patents, 

Trademarks and Copyrights of the S. Comm. on the Judiciary, 90th Cong. at 519 (1st Sess. 1967) 

(Testimony of Clive Davis, CBS Records); see id. at 531-32 (Testimony of Henry Brief, RIAA). 
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only a miniscule percentage of early recordings, presumably because it is not profitable to do 

so.477 

Indeed, for pre-1925 (acoustical era) recordings, libraries and archives are well-situated 

to play a role in making available to scholars and enthusiasts those works that most record 

companies have elected not to reissue. While it is true that popular recordings remain popular 

longer (was any recording from the 1920s as popular in the 1960s as the Beatles, or the Rolling 

Stones, or Aretha Franklin, are today?), the likelihood of a profitable major label reissue of 

acoustical-era recordings appears vanishingly remote. Indeed, the fact that a work may enter the 

public domain while it is still earning money for its right holder is not necessarily a bad thing. As 

Professor Elizabeth Townsend Gard observed at the roundtable, 

The [way the] system works is that you get a limited monopoly for a particular 

amount of time, and then when it’s over, it goes into public domain. Even if it’s 

making lots of money, it still goes into the public domain.478

Under this view, injecting into the public domain a work with earnings potential would 

not be contrary to copyright law and policy, but entirely consistent with it, even if the 

recording has some potential to earn a bit of money. The Office is aware that any 

federalization plan must be consistent not only with copyright law and policy, but also 

with the takings clause of the Fifth Amendment. That issue is explored below in Chapter 

VI.B.2. 

D. Appropriate Application of Section 114 License and the “Safe Harbors” of 

 17 U.S.C. § 512 and the Communications Decency Act 

 The Copyright Office believes that all of the rights, limitations, and exceptions of Title 17 

should apply to pre-1972 sound recordings, with the exception of certain sections dealing with 

 

477 The Office’s recommendation regarding term of protection for pre-1972 sound recordings – see infra 

Chapter VI.B.-C. – would allow right holders to retain copyright protection until 2067 for works that they 

keep reasonably available to the public until that date. 

478 Townsend Gard T2 at 430. 
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issues such as ownership, term of protection, and registration that should be specially modified to 

achieve the transition from state to federal law. Although some stakeholders, either at the 

roundtable or at separate meetings with Copyright Office staff, indicated some discomfort with 

the application of sections 114 and 512 of the Copyright Act to pre-1972 sound recordings, the 

Office concludes that both provisions should apply to pre-1972 sound recordings after 

federalization is effective. In contrast to sections 114 and 512, the Office does not believe the 

safe harbor of section 230(c) of the Communications Decency Act (“CDA”) should apply to 

digital transmissions of phonorecords or public performances of pre-1972 sound recordings. In 

any event, federalization would clarify the issue by subjecting the use of sound recordings to the 

safe harbor of section 512 rather than the broader CDA safe harbor. 

1. Section 114 

In reviewing the potential application of section 114 to pre-1972 sound recordings, the 

Office believes that section 114’s statutory royalty requirements should apply to nonexempt, 

noninteractive digital transmissions of those recordings, thereby providing an additional revenue 

stream for older artists and works. It would also moot the question of whether state laws should 

provide a public performance right for pre-1972 sound recordings, a question for which diverse 

practices have emerged. That is, while some services operating under the section 114 license pay 

royalties for the transmission of public performances of pre-1972 sound recordings, others do not. 

It is not clear from the record whether those services pay royalties due to their reading of state 

law (or out of an abundance of caution due to the uncertainty as to what state law might require), 

because they do not realize that the rules may be different with respect to pre-1972 sound 

recordings, or because it is too difficult (or not cost-effective) to determine which sound 

recordings are not protected by federal copyright law and arguably do not require payment. With 

federalization of protection for pre-1972 sound recordings, all sound recordings would be treated 

the same for purposes of Section 114. 
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 The Office thinks it is unreasonable for the age of a sound recording to dictate whether 

royalties are paid on public performances by means of digital audio transmissions, so long as 

copyright subsists in that sound recording. Bringing pre-1972 sound recordings within the scope 

of federal protection would subject them to the statutory license and provide online music 

services with an easy means to offer lawful public performances of those recordings while 

offering copyright owners and performers a reliable new source of income. 

2. Section 512 

 The Office sees no reason – and none has been offered – why the section 512 “safe 

harbor” from liability for monetary and some injunctive relief should not apply to the use of pre1972 sound recordings. The Office understands and is not unsympathetic to the fact that many 

copyright owners are dissatisfied with the way in which some courts have interpreted aspects of 

section 512. It may well be that in light of the quantitative and qualitative changes involving socalled “user-generated content” on the Internet as well as the practical difficulties, for both 

copyright owners and Internet service providers, of dealing with the unanticipated large volume 

of “take-down” notices generated in response to massive infringement on the Internet, Congress 

might want to take another look at section 512 to determine whether it requires updating or other 

refinements to reflect current conditions. To be clear, section 512 was innovative legislation 

when it was enacted in 1998 and the concept of providing safe harbors for certain good faith acts 

on the Internet remains a sound principle. The point for purposes of this Report is that there is no 

policy justification to exclude older sound recordings from section 512 or other future provisions 

of law to the extent other sound recordings – and for that matter other works of authorship – 

remain subject to its provisions. 

 One court has ruled that section 512 currently applies to pre-1972 sound recordings. 

However, the ruling in Capitol Records, Inc. v. MP3tunes was made on highly questionable 
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grounds.479 The text of section 512(c) states that a “service provider shall not be liable for 

monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, 

for infringement of copyright by reason of the storage at the direction of a user of material that 

resides on a system or network controlled or operated by or for the service provider” if the service 

provider complies with a number of requirements.480 The court in MP3tunes stated that “[t]he 

text of the DMCA limits immunity for the ‘infringement of copyrights’ without drawing any 

distinction between federal and state law.”481 The court in MP3Tunes made this determination 

despite the fact that section 301(c) states “[w]ith respect to sound recordings first fixed before 

February 15, 1972, any rights or remedies under the common law or statute of any State shall not 

be annulled or limited by this title until February 15, 2067.”482 The court in MP3Tunes correctly 

observed that “section 301(c) does not prohibit all subsequent regulation of pre-1972 

recordings.”483 However, its conclusion that Congress did in fact subsequently regulate pre-1972 

sound recordings in section 512(c) is difficult to square. 

 Section 512(c) does not include any provision explicitly limiting remedies available for 

owners of pre-1972 sound recordings. Instead, section 512(c) refers to “infringement of 

copyright”484 which is defined in section 501(a) as the violation of “any of the exclusive rights of 

the copyright owner as provided by sections 106 through 122.”485 The fact that the term 

“infringement of copyright” only refers to infringement of rights protected under title 17, and 

 

479 Capitol Records, Inc. v. MP3tunes, LLC, ___ F.Supp.2d ___, 2011 U.S. Dist. LEXIS 93351, 2011 WL 

5104616 (S.D.N.Y. Oct. 25, 2011). 

480 17 U.S.C. § 512(c). 

481 MP3tunes, 2011 U.S. Dist. LEXIS 93351, at *27. 

482 17 U.S.C. § 301(c). 

483 MP3tunes, 2011 U.S. Dist. LEXIS 93351, at *27. 

484 17 U.S.C. § 512(c). 

485 17 U.S.C. § 501(a). 
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does not include infringement of rights protected under common law or statute of any State, could 

not be more clear. The statute’s plain text reveals a narrow definition of “copyright 

infringement” which is buttressed by the language of section 301(c). The court in MP3Tunes

concluded that such a narrow reading would be at variance with the policy of the DMCA as a 

whole and would “spawn legal uncertainty” and that therefore such an interpretation should be 

rejected. However, the court in MP3Tunes did not offer any evidence that Congress intended 

section 512(c) to apply to pre-1972 sound recordings. 

 The court in MP3tunes not only ignored the plain text of the statute, it also ignored the 

general rule of statutory construction that exemptions from liability, such as those established in 

section 512(c), must be construed narrowly, “and any doubts must be resolved against the one 

asserting the exemption.”486 Furthermore, the court’s interpretation of section 512(c) runs afoul 

of the “cardinal rule” of statutory construction that one section of a statute cannot be interpreted 

in a manner that implicitly repeals another section.487 In light of these rules of statutory 

construction, any exemption of liability for violations of rights under the common law or statute 

of any State for pre-1972 sound recordings must be explicit in its intent to override the provisions 

of section 301(c). 

 The Office observes that numerous other limitations and exceptions in Title 17, including 

those in sections 107 and 108, are also express limitations on the right to recover for 

“infringement of copyright.”488 Yet none of these exceptions in the federal copyright statute has 

ever been applied directly to any claims under state law. In short, it is for Congress, not the 

courts, to extend the Copyright Act to pre-1972 sound recordings, both with respect to the rights 

granted under the Act and the limitations on those rights (such as section 512) set forth in the Act. 

 

486 Tasini v. New York Times Co., 206 F.3d 161, 168 (2d Cir. 2000), aff’d, 533 U.S. 483 (2001). 

487 Tennessee Valley Auth. v. Hill, 437 U.S. 153, 189 (1978); Auburn Hous. Auth. v. Martinez, 277 F.3d 

138, 145 (2d Cir. 2002). 

488 See also 17 U.S.C. §§ 110, 111(a), 112, 121(a), (c). 
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3. Application of the Communications Decency Act 

 The discussion concerning section 512 is related to another issue that was not raised in 

the Notice of Inquiry and comments or at the roundtable: whether the safe harbor of section 

230(c) of the CDA applies to state law protection for pre-1972 sound recordings. Section 230(c) 

provides certain immunity from liability for providers and users of “interactive computer 

services” who publish information provided by others. Specifically, it states that “No provider or 

user of an interactive computer service shall be treated as the publisher or speaker of any 

information provided by another information content provider.”489 Concerning its effect on other 

laws, section 230(e) provides that no liability may be imposed under any state or local law that is 

inconsistent with section 230. In effect, section 230(e) provides blanket immunity from liability 

for providers and users of an “interactive computer service” who publish information provided by 

others. However, section 230(e)(2) of the CDA also provides that the law does not “limit or 

expand any law pertaining to intellectual property.”490 

It is not settled whether the CDA limitations on liability apply to claims under state law 

that may arise from violation of the rights of owners of pre-1972 sound recordings, or whether 

such claims arise from a “law pertaining to intellectual property” and are thus outside the CDA 

liability limitations. The U.S. Court of Appeals for the Ninth Circuit, in Perfect10, Inc. v CCBill, 

LLC, held that the carve-out from the immunity provided in the CDA for laws pertaining to 

intellectual property applies only to federal intellectual property, and that therefore the CDA 

provides immunity for claims under state laws protecting intellectual property. The court stated 

that while the scope of federal intellectual property law is relatively well-established, state laws 

protecting “intellectual property” (including trademark, unfair competition, dilution, right of 

publicity and trade defamation) are by no means uniform. The court concluded that any 

 

489 47 U.S.C. § 230(c). 

490 47 U.S.C. § 230(e)(2). 
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interpretation of the CDA that failed to immunize Internet service providers from claims arising 

under these diverse state laws would undermine Congress’s goal of fostering the development of 

the Internet.491 

 Several other courts have declined to follow the reasoning of the Ninth Circuit in 

Perfect10 v CCBill, concluding instead that the CDA provides no immunity from claims under 

state laws protecting intellectual property.492 In Doe v. Friendfinder Network, Inc., the District 

Court for the District of New Hampshire noted that prior to the Perfect 10 decision, the general 

consensus was that the CDA did not shield service providers from state intellectual property 

law.493 Both the Friendfinder Network decision and Atlantic Recording Corp. v. Project Playlist, 

Inc. criticized the Ninth Circuit’s failure to analyze the text of the statute.494 The Project Playlist

decision noted that the approach taken in Perfect 10 v. CCBill LLC appeared to be inconsistent 

with Ninth Circuit precedent governing statutory interpretation.495 The courts in both Project 

Playlist and Friendfinder Network found that the language of the statute itself does not suggest 

that the carve-out from immunity in the CDA applies solely to federal intellectual property law, 

noting that Congress’s use of the modifier “any” in setting forth which laws pertaining to 

intellectual property were to be carved out from the CDA immunity provisions does not suggest a 

limitation to federal intellectual property law. On the contrary, the modifier “any” constitutes 

expansive language and there is no indication that Congress intended a limiting construction.496

 

491 Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007). 

492 See, e.g., Universal Commun. Sys. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007); Atlantic Recording 

Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009); Doe v. Friendfinder Network, Inc., 

540 F. Supp. 2d 288 (D.N.H. 2008). 

493 See Friendfinder Network, Inc., 540 F. Supp. 2d at 301-02 . 

494 See id.; Project Playlist, Inc., 603 F. Supp. 2d at 703. 

495 See Project Playlist, Inc., 603 F. Supp. 2d at 703. 

496 See id.; Friendfinder Network, Inc., 540 F. Supp. 2d at 301-02. 
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No stakeholders specifically addressed the possible application of the CDA to the state 

law protection of pre-1972 sound recordings. However, there is little question that if pre-1972 

sound recordings were brought under federal law, they would be excluded from the CDA. And as 

a matter of policy, that is the correct result. Congress properly determined that Internet service 

providers should not receive the CDA’s more comprehensive immunity with respect to 

infringement of copyrighted works, but should be subject to the more limited safe harbor of 

section 501. Pre-1972 sound recordings should be treated no differently in this respect than post1972 sound recordings, or any other works of authorship. 

E. Alternatives to Federal Protection 

 

The Copyright Office appreciates stakeholders’ efforts to devise ways to encourage 

preservation and public access to pre-1972 sound recordings without amending the Copyright 

Act. Those suggestions include “partial federalization” – i.e., applying only selected portions of 

federal copyright law to pre-1972 sound recordings, limiting remedies for infringement of orphan 

works, reforming the existing state laws governing pre-1972 sound recordings, confirming that 

the fair use defense is applicable to claims of violation of state laws protecting sound recordings – 

and negotiated agreements between record companies and libraries. However, each of the 

suggested alternatives falls short of federalization in terms of promoting legal uniformity, 

preservation, and public access. 

 The Office agrees with those stakeholders who opposed the concept of “partial 

federalization,” or only applying sections 107 and 108 to pre-1972 sound recordings. Such an 

approach would only increase confusion regarding what parts of pre-1972 sound recording 

protection are governed by state law and what parts fall under federal law. This result would not 

promote clarity and consistency. Moreover, the Office sees no benefit in retaining state law rules 

for all aspects of protection for pre-1972 sound recordings other than certain selected exceptions 
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and limitations. Pre-1972 sound recordings should either be part of the federal statutory scheme 

or they should not be part of that scheme. 

 Regarding the proposal of limiting remedies for good-faith preservation and public access 

uses of pre-1972 sound recordings that are also orphan works,497 the Office agrees that an orphan 

works provision would be a valuable addition to federalization, but it is not a substitute. An 

approach consisting only of limiting remedies for this group of works would leave too many nonorphan works unaddressed, and would, like partial federalization, increase confusion as to where 

to draw the line between federal and state protection. 

 Reforming state laws rather than amending federal copyright law is simply impractical, 

given the effort and uncertainty involved in trying to obtain consistent statutory reforms in all 

fifty states. Such an endeavor would be time-consuming and expensive, and achieving 

uniformity is highly unlikely. Moreover, even if uniformity in state statutory law were achieved, 

there would be no way to ensure uniformity in the decisions of the courts of all fifty states.498 

Additionally, only one state would have to reject a proposed model law for the purpose of the 

project to falter. Finally, given the Office’s strong belief that the correct policy choice is to unify 

all copyright law under federal control, a state-by-state approach would be a major step in the 

wrong direction. 

 ALA and ARL have requested that the Office “confir[m] the availability of a flexible fair 

use doctrine under state law in all 50 states.”499 Given that we are aware of only a single state 

court case – from a trial court – that has actually applied fair use to a common law copyright 

 

497 See supra Chapter IV.E.2. 

498 While it is true that various federal district courts and courts of appeals may interpret federal laws 

differently, the Supreme Court ultimately can resolve those differences. But the Supreme Court has no 

power to resolve issues of state law, even in cases where the laws of all states are identical. 

499 ARL/ALA Reply at 1. 
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claim,500 that is a rather ambitious request. Of course, the Copyright Office has no authority to 

confirm the substance of state law. Nonetheless, the Office believes that, under proper facts, it is 

likely that any state court would find that fair use is a defense that can be considered and applied 

under principles of state common law copyright. Note, however, that traditionally fair use was 

not available for unpublished works501 – and for the most part state common law copyright has 

protected only unpublished works. But at least with respect to commercially distributed sound 

recordings, arguments based on the unpublished nature of a work are not very persuasive. 

Moreover, because fair use is a judge-made doctrine (merely codified after the fact in the 

Copyright Act of 1976), there is no reason to believe that state courts considering common law 

copyright claims would not find that the defense does exist under appropriate circumstances. 

 As noted above,502 common law copyright is not the primary means by which pre-1972 

sound recordings are protected under state law. The states more frequently protect those 

recordings under theories of unfair competition, which typically do not include a fair use defense, 

and through statutes that include no such defense.503 However, some courts have constructed 

analogous defenses to torts separate from but similar to copyright.504 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. 

 Finally, the Office applauds the recent agreements between record companies and the 

Library of Congress. Such agreements, however, should take place against the backdrop of 

 

500 EMI Records, supra note 140. 

501 See Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539 (1985); EMI Records, supra 

note 140. 

502 Chapter II.E.3. 

503 However, as discussed above, many activities that would qualify as fair use under federal law may not 

even be embraced in the tort. See id. 

504 See, e.g., Comedy III Prods. v. Gary Saderup, Inc., 25 Cal.4th 387, 408, 21 P.3d 797, 106 Cal.Rptr.2d 

126 (2001) (recognizing a modified fair use defense to a claim of violation of the right of publicity).
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federal protection of all sound recordings, so that federal copyright exceptions can facilitate 

reasonable uses of recordings that are not covered by a use agreement. 
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 Wire recorder 

VI. MEANS OF BRINGING PRE-1972 SOUND RECORDINGS UNDER FEDERAL 

JURISDICTION 

 It is not enough to conclude that pre-1972 sound recordings should be protected under 

federal copyright law. A number of decisions must be made with respect to how they are brought 

into the federal system, including issues involving ownership, term of protection, and registration. 

Indeed, an understanding of how these issues are to be addressed is crucial not only to 

determining whether it is feasible to federalize protection, but also to determining how to do so. 

A. Ownership

 The Notice of Inquiry identified ownership of rights in pre-1972 sound recordings as a 

key issue. The Office sought information about how the various state law principles regarding 
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ownership of sound recordings compare with principles of copyright ownership under federal 

law. In particular, it requested information on the relevant state law principles of authorship and 

initial ownership, and how they compare with those of federal copyright law. This inquiry 

included issues surrounding application of work made for hire principles under state law. It also 

sought information on the relevant state law principles concerning transfers and how they 

compare with those under federal law. As discussed above, the Office also expressed a desire for 

input on how ownership issues might affect termination and reversion rights that are available to 

works under federal law.505

1. Determining Ownership

 Under federal law, the owner of rights in a sound recording will generally be, in the first 

instance, the performer(s) whose performance is recorded, the producer of the recording, or both. 

In addition, many sound recordings qualify as works made for hire under the Copyright Act of 

1976, either because they are works prepared by employees in the scope of their employment, or 

because they were specially ordered or commissioned, the parties agreed in writing that the works 

would be works made for hire, and the works fall within one of nine specific categories of works 

eligible to be commissioned works made for hire.506 If a work qualifies as a work made for hire, 

it is the employer or commissioning party who is the legal author and initial right holder, rather 

than the individual creator of the work.507 Under the 1909 Act, the courts recognized the work for 

hire doctrine with respect to works created by employees in the course of their employment, and 

particularly from the mid-1960s on, they recognized commissioned works made for hire, under 

such standards as whether the work was created at the hiring party’s “instance and expense” or 

 

505 See supra Chapter IV.D.2.b. 

506 17 U.S.C. § 101.

507 The parties may agree otherwise in a signed writing. 17 U.S.C. § 201(b). 
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whether the hiring party had the “right to control” or exercised “actual control” over the creation 

of the work.508 The Office sought information about the extent to which laws of the various states 

recognize the work made for hire doctrine with respect to sound recordings and, if so, the extent 

to which state laws differ from federal law. 

 Under federal copyright law, ownership of rights is distinct from ownership of the 

material object in which the copyrighted work is embodied. Transferring ownership of such an 

object – including the “original,” i.e., the copy or phonorecord in which the copyrighted work 

was first fixed – does not convey rights in the copyright.509 A transfer of copyright ownership 

must be made in a writing signed by the owner of the rights or by his or her authorized agent.510 

In contrast, some state laws provide (or for a period of time provided) that transferring the 

original copy of a work could operate as a transfer of copyright ownership, unless the right holder 

specifically reserved the copyright rights. This principle is sometimes referred to as the 

“Pushman doctrine” for one of the earliest cases in which it was applied.511 The Office sought 

information about the extent to which such state law principles have been applied with respect to 

“master recordings” and how, if at all, they would affect who would own the federal statutory 

rights if pre-1972 sound recordings were brought under federal law. 

a. State vs. federal ownership rules 

 In their comments and at the roundtable, RIAA and A2IM cautioned that perhaps the 

most troublesome issue for federal copyright protection for pre-1972 sound recordings would be 

how to effectuate a transition of the rules regarding the vesting of ownership from existing state 

 

508 See NIMMER ON COPYRIGHT § 5.03 (2011). 

509 17 U.S.C. § 202. 

510 17 U.S.C. § 204(a). 

511 Pushman v. New York Graphic Soc’y, Inc., 287 N.Y. 302, 39 N.E.2d 249 (1942). 
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laws to federal law. They acknowledged that there is precedent for bringing works that are 

already in existence under federal copyright law at a later time. For example, the URAA restored 

copyright protection to certain works previously in the public domain (including foreign sound 

recordings). However, they noted that the URAA provisions restored ownership under federal 

law and vested it “initially in the author or initial rightholder of the work as determined by the 

law of the source country of the work.”512 They pointed out that the question of “changing” 

ownership of rights from one party to another was not at issue under the URAA, but that it might 

become contentious in the case of federalized protection for pre-1972 sound recordings.513 

 RIAA and A2IM noted that if current federal law were applicable to pre-1972 sound 

recordings, vesting of initial ownership would have to be determined on a case-by-case basis. 

They predicted that such inquiries would require looking at the circumstances under which each 

recording originated to determine the owner (including, for example, to determine whether the 

work might be a work made for hire, or one jointly owned by the performers, producers and 

others). RIAA and A2IM noted that transfers, assignments, other contracts and corporate mergers 

would raise additional ownership questions. They remarked that the existing rights, remedies, 

licenses, representations and warranties and other provisions in contracts and licenses could be 

called into question. They suggested that such costly inquiries would be “ripe [sic] with errors, 

challenges and litigation,” which would likely result in a complete freeze on the availability of 

many pre-1972 sound recordings.514 

 RIAA and A2IM conceded that there is some, albeit very limited, precedent for dealing 

with existing contractual obligations that are changed by later provisions in title 17. They 

suggested that section 104A(f) could provide guidance on how to address contractual liability 

 

512 RIAA/A2IM at 24 (citing 17 U.S.C. § 104A). 

513 RIAA/A2IM at 24-27; RIAA/A2IM Reply at 3-4. 

514 RIAA/A2IM at 27. 
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arising from new federal copyright protections for pre-1972 U.S. sound recordings. That section 

provides immunity to any person who had, prior to the effective date of restoration of copyright 

under the URAA, warranted, promised or guaranteed that a work did not violate an exclusive 

right granted in 17 U.S.C. § 106, under the assumption that the work was in the public domain.515 

They suggested that similar provisions could be adopted, but thought that this would be a minor 

fix for a major problem – the uncertainties brought on for the many existing contractual relations, 

chains of title, rights and remedies for existing uses, licenses and the like.516

 RIAA and A2IM pointed out that the system of state statutes and common law governing 

pre-1972 sound recordings vests a variety of rights, sometimes to different right holders than 

those who would be copyright owners under current federal law.517 They acknowledged that the 

current system may be complex, but also noted that there have been decades of litigation and 

precedent to resolve ownership issues under the various state laws. They remarked that the 

existing system is understood and has been relied upon by the music industry and related 

industries for a century. RIAA and A2IM suggested that if this existing system were suddenly 

replaced by a new federal regime, the transition to new laws from these state law schemes for 

each sound recording would be an administrative nightmare.518 A2IM noted that this would 

include the cost of updating ownership metadata, which is routinely relied upon in today’s 

marketplace.519

 At the roundtable, NMPA said that several of the concerns raised by RIAA and A2IM are 

shared by music publishers. It asserted that any changes in ownership of sound recordings could 

require publishers to change information in their databases “relating to old recordings right across 

 

515 See id. at 32 (citing 17 U.S.C. § 104A(f)). 

516 See id. at 31-32. 

517 See id. at 26 (citing BESEK, COMMERCIAL SOUND RECORDINGS STUDY); Schwartz T1 at 25. 

518 RIAA/A2IM at 24-27. 

519 Bengloff T1 at 291. 
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the board,” requiring publishers to devote resources to address the costs of updating their records. 

NMPA added that uncertainty regarding ownership would be problematic for music publishers’ 

ability to promptly receive revenue for the use of their musical works by owners of sound 

recordings.520

ARSC disputed the detrimental effects claimed by RIAA and A2IM. It asserted that state 

law would continue to govern prior contracts and that ownership would therefore remain the same 

under federal protection for pre-1972 recordings. It also asserted that the standard term for 

recording agreements, including standard agreements used by owners of sound recordings to 

grant master use licenses, is limited in duration, and the term of federal copyright duration would 

generally extend well beyond the term of current contracts.521

ARSC pointed out that RIAA and A2IM failed to offer examples of contracts regarding 

pre-1972 sound recordings that would be undermined by federal protection. It added that even if 

such a case did arise, RIAA and A2IM correctly observed that the URAA safeguards in section 

104A could provide a model for addressing such issues. ARSC also countered RIAA and A2IM 

statements that issues of initial ownership would be complicated by federalization. ARSC noted 

that ownership is not a particularly difficult question for commercial pre-1972 sound recordings, 

because virtually all such recordings were produced as works made for hire, and are now claimed 

by corporations rather than by individuals, a point which was also made independently by Patrick 

Feaster.522 ARSC suggested that any new federal legislation for pre-1972 recordings should 

 

520 Rosenthal T1 at 60-61, 86-87. 

 

521 ARSC at 4; ARSC Reply at 21 (citing legal practice guides, e.g., Recording Agreements, in 8 

ENTERTAINMENT INDUSTRY CONTRACTS (Donald C. Farber & Peter A. Cross eds., 2008) (advising that the 

term of engagement “can range from a few hours to several years”) and Bonnie Greenberg, Master Use 

Licenses, in 9 ENTERTAINMENT INDUSTRY CONTRACTS (Donald C. Farber & Peter A. Cross eds., 2008) 

(estimating a term of five years for the use of a sound recording on network television versus three years 

for exploitation on cable television). 

522 ARSC at 4; Feaster at 8-13. 
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clearly indicate the source law governing the question of whether a work qualifies as a work 

made for hire.523

In response to the statement by RIAA and A2IM that evaluating ownership under 

federalization would require costly case-by-case analysis, which would diminish the availability 

of many pre-1972 recordings, ARSC pointed out that ownership of already-existing works other 

than sound recordings under the 1976 Act is determined as of the effective date of the Copyright 

Act (i.e., ownership is based on the status quo that existed just prior to the effective date), and not 

by retrospective application of the Copyright Act to the date the works were created.524 ARSC 

suggested that similar treatment could easily be implemented for any federalization of pre-1972 

recordings. ARSC noted that although neither federal nor state rights in sound recordings were 

created under the 1909 Copyright Act, by analogy, prior state law could apply for pre-1972 

recordings. Furthermore, it offered that even traditional categories of works prepared before 

1978 require a case-by-case examination to determine the federal rights as of the date of 

preemption, and that no diminished availability of such works has been attributed to such 

analysis.525

The Starr-Gennett Foundation addressed the difficulty of case-by-case analysis of 

ownership by pointing out the challenges in determining both the facts surrounding creation of 

works as well as in the application of various state laws regarding transfers and corporate 

mergers. It suggested that federalization could ease the impact of current questions regarding 

ownership status of pre-1972 recordings, implying that federalization would mean that ownership 

would be determined under federal law.526 

 

523 ARSC Reply at 13-15. 

524 Id. at 13-14. 

525 Id. 

526 Starr-Gennett Foundation 7b at 3. 
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b. Effect of rule in some states equating physical ownership of master 

with ownership of all rights 

 ARSC stated that it is unaware of state cases that have invoked the Pushman doctrine, 

equating ownership of the original master recording with ownership of the sound recording. 

However, ARSC went on to note that a correspondent to the ARSC Journal raised this question in 

2006, citing specific statutes of Connecticut, Georgia, Hawaii, Illinois, Alabama, Alaska, Arizona 

and California that indicate those states recognize some version of this principle. ARSC also 

acknowledged that it is theoretically possible that courts could apply the principle.527 

 Patrick Feaster provided an explanation of the historical methods of creation and 

duplication of pre-1972 sound recordings. This history provided information about the reasons 

why many state statutes concerning pre-1972 sound recordings equate ownership of the original 

master recording with ownership of the sound recording. Feaster noted that some sound 

recordings never had masters because they were never intended for mass duplication. He also 

pointed out that many masters were destroyed, yet duplicates survive. He suggested that 

federalization should include a requirement that owners be required to demonstrate ownership of 

a physical master as a condition to bringing a copyright claim.528

 RIAA and A2IM stated that the Pushman doctrine applied to master recordings, at least 

in some states, and noted that federalization would pose difficulty and increased costs for 

investigations of chain of title.529

c. Termination 

 Regarding the possibility of termination rights under a federal regime for protection of 

pre-1972 sound recordings, RIAA and A2IM stated that any uncertainty as to the initial and 

 

527 ARSC at 4 (citing ARSC JOURNAL, Fall 2006 at 211-12). 

528 Feaster at 8-13. 

529 RIAA/A2IM at 27-28. 
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subsequent ownership (and authorship) of a sound recording would be exacerbated by the 

difficulty in addressing issues such as who, if anyone, had or has the ability to terminate any 

grant, how to treat joint author scenarios, and when and under what circumstances, if at all, works 

would be eligible for termination.530 

 Ivan Hoffman stated that any federalization of pre-1972 sound recordings should 

continue to exempt those recordings from the termination of transfer provisions. He noted that as 

of now, pre-1972 sound recordings are not subject to termination of transfer provisions and 

recommended against expanding such provisions to the detriment of current owners.531

 Artist’s Reprieve commented that termination of transfer provisions should extend to 

federalized pre-1972 sound recordings. It suggested that failure to provide such provisions may 

result in age discrimination against older artists as a direct result of a federal statute that grants 

federal copyrights (and permits copyright terminations) to younger artists who recorded post1978.532 The Office also heard informally from other representatives of recording artists from the 

pre-1972 era who pointed out the inequity of depriving them of termination rights enjoyed by 

those who performed on post-1972 sound recordings. 

2. Recommendation 

 The concerns raised by RIAA, A2IM and NMPA deserve serious consideration. 

However, these concerns are based on the assumption that federalization would occur by 

incorporating pre-1972 sound recordings into the existing framework of the Copyright Act, 

without any modifications or accommodations. It appears that the copyright owners’ concerns 

regarding ownership can be addressed by adopting a rule along the lines of ARSC’s proposal, 

providing that ownership of newly federalized pre-1972 sound recordings should be determined 

 

530 See id. at 29. 

531 Hoffman T1 at 228-33. 

532 Artist’s Reprieve Reply at 1-2. 
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not by applying existing federal law retrospectively, but by applying state law as it exists as of the 

effective date of federalization. That is, whoever owned the rights immediately before pre-1972 

sound recordings are given federal protection would own those rights when federal protection 

takes effect. 

 Determining ownership of pre-1972 sound recordings by deferring to the ownership as of 

the effective date of federalization would avoid creating new questions regarding ownership but 

instead would preserve the status quo, including any disputes regarding ownership that may or 

may not exist at the time of enactment. Following this path would prevent the imposition of 

undue administrative costs or the predicted freeze on the availability of many pre-1972 sound 

recordings. Determinations of initial ownership would be controlled by existing state laws, 

including the application of work for hire principles and the Pushman doctrine where it applies, as 

the rules in existence at the time of transfers and assignments that took place prior to 

federalization. 

 Termination rights pose a more difficult question. As both the House and Senate Reports 

on the Copyright Act of 1976 stated, termination provisions were included in the 1976 Act 

“because of the unequal bargaining position of authors, resulting in part from the impossibility of 

determining a work’s value until it has been exploited.”533 The Office has long recognized that 

“[s]ince authors are often in a relatively poor bargaining position * * * some other provision 

should be made to permit them to renegotiate their transfers that do not give them a reasonable 

share of the economic return from their works.”534 As a general matter, the Office strongly 

supports termination rights as a means to give authors the opportunity to recapture the value of 

their authorship years after they have assigned the rights. 

 

533 H.R. REP. NO. 94–1476, at 124 (1976); S. REP. NO. 94-473, at 108 (1975). 

534 See Report of the Register of Copyrights on the General Revision of U.S. Copyright Law 92 (1961). 
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 However, to recognize termination rights for grants of copyright transfers or licenses that 

were made prior to the enactment of a statute granting federal copyrights would be unprecedented 

and would raise significant concerns relating to retroactive legislation and possible takings.535 

Because of those concerns, the Office is reluctant to recommend that termination rights should 

apply to any grants that have already been made with respect to pre-1972 sound recordings.536 

However, the termination right in section 203 should be applicable with respect to any grants 

made by authors after the effective date of any legislation that federalizes protection of pre-1972 

sound recordings. In such cases, there could be no concerns about retroactivity or takings, since 

any post-effective date grants would be subject to the law in existence at that time. Addressing 

termination in this fashion would preserve the expectations of all parties with respect to prefederalization grants. 

B. Term of Protection

 The Notice of Inquiry identified the term of protection for pre-1972 sound recordings and 

related constitutional considerations as key issues. The Office sought information about how 

federal law regarding term of protection should apply to pre-1972 sound recordings. If the 

ordinary federal statutory terms were applied to pre-1972 sound recordings, then all works 

published prior to 1923 would immediately go into the public domain and many and perhaps 

most other works would go into the public domain prior to 2067, the date upon which current 

state protection is set to be preempted. Unlike under current law, works created between 1923 

and 1972 and now protected under state law would not necessarily enjoy protection until 2067. 

Therefore, the Notice inquired whether it would be desirable to provide a term of protection for 

 

535 See U.S. Copyright Office, Analysis of Gap Grants under the Termination Provisions of Title 17 at 6 

(2011), available at http://www.copyright.gov/reports/gap-grant%20analysis.pdf. 

536 There would presumably be no occasion to recognize termination rights for pre-1978 grants under 

section 304(c) or (d), since the premise for those provisions is that the authors, rather than the grantees, 

should obtain the benefit of the extensions of copyright term enacted in 1976 and 1998. No similar 

extension of term is proposed for pre-1972 sound recordings. 
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pre-1972 sound recordings that is different than the terms set forth for other works protected by 

federal copyright law, in order to ensure that federalization of pre-1972 sound recordings would 

not give rise to potentially successful takings claims under the Fifth Amendment. The Notice 

further inquired whether federalization would encounter constitutional problems such as due 

process or takings issues if all pre-1972 recordings were not provided with at least some 

minimum term of federal protection. 

1. Current and Proposed Terms of Protection 

Currently, pre-1972 sound recordings may be protected by state law until February 15, 

2067, at which point such protection is preempted by federal law. The duration of protection 

would potentially change if sound recordings were brought under federal copyright law and given 

the term applicable for other works. Specifically, the term of protection for a published pre-1972 

sound recording presumably would be 95 years from publication.537 An unpublished pre-1972 

sound recording would have a term of the life of the author plus 70 years unless it is a work made 

for hire or is anonymous or pseudonymous, in which case the term would be 120 years from 

creation.538 

When unpublished works other than sound recordings were incorporated into the federal 

copyright statute in 1978, older works were given an adjustment in the term of protection to take 

into account the fact that the potentially perpetual protection of such works under state law was 

being abrogated. Section 303 provided, as a transitional matter, that all unpublished works would 

get at least 25 years of federal protection, until December 31, 2002. Thus, a work created by an 

author who had died in 1929, 49 years before the effective date of the 1976 Act, might have been 

expected to enter the public domain at the end of 1979, 50 years after the death of the author. But 

 

537 See 17 U.S.C. § 304. 

538 17 U.S.C. § 303(a). 
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section 303 provided that copyright would subsist in the work until at least December 31, 2002, 

and that it would subsist for an additional 25 years – to the end of 2027 – if it was published 

before the end of 2002.539 If a similar accommodation were to accompany federalization of pre1972 sound recordings, sound recordings published in 1922 or earlier would not go directly into 

the public domain, but would continue to enjoy copyright protection for a prescribed period of 

years. 

 Most stakeholders proposed some modification of the current terms of protection to pre1972 sound recordings. 

a. 50 years from publication 

 Several stakeholders, including Nicola Battista, Feaster, and LOC, suggested a term of 50 

years from the date of publication.540 Under such a proposal, pre-1923 sound recordings would 

go directly into the public domain. In support of such a term, LOC noted that virtually all the 

commercial benefits accruing to right holders from historic sound recordings released in past 

decades occur within a period of fewer than 70 years.541 LOC suggested that a term of protection 

under federal law longer than 50 years has not proved to be an incentive to right holders to keep 

historic recordings commercially available in the market place. LOC and Battista offered that the 

current protection for sound recordings until the year 2067 creates a “dead zone” during which 

culturally and historically important recordings are not commercially available, and are often lost, 

perhaps forever.542 Finally, LOC and Battista noted that for some interested in listening to and 

researching older recordings, the lack of commercial availability of phonorecords authorized by 

 

539 With the enactment of the Sonny Bono Copyright Term Extension Act in 1998, the additional 25 year 

period was extended by yet another 20 years, until the end of 2047. 

540 Battista at 2; Feaster at 1, 7; LOC at 10. 

541 LOC at 10. 

542 LOC at 10; Battista at 2. 
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the right holder creates an incentive to seek out copies produced in other countries with shorter 

terms of copyright protection, where they are already in the public domain.543

 

b. 50 years from fixation 

EFF expressed a preference for a term of 50 years from the date of fixation. Under such 

a proposal, pre-1923 sound recordings would go directly into the public domain. EFF believed 

that the general rule of protection, where pre-1972 sound recordings do not enter the public 

domain until 2067, is too long and should be shortened under federal copyright law. EFF stated 

its view that 50 years is a reasonable length that is appropriate under the Copyright Clause's 

“limited times” provision.544 It also suggested that making the terms of protection of sound 

recordings closer to the terms of protection of the underlying works, such as musical 

compositions, would clarify their status and better facilitate archiving and other productive 

uses.545

 SAA also preferred a term of 50 years from the date of fixation, with pre-1923 sound 

recordings going directly into the public domain. SAA noted that because of the difficulty of 

establishing whether particular sound recordings were works made for hire, adopting the basic 

rules regarding term would not be a good solution. SAA pointed out that a term of 50 years from 

creation would be in compliance with most international agreements.546 

 

543 See id. 

544 U.S. CONST. Art. I, § 8. cl. 8. 

545 EFF at 11-12. 

546 SAA at 8. 
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c. 95 years from creation 

 MLA suggested that 95 years from creation, regardless of whether the work is published 

or unpublished, would be a second best alternative to a 50 year term. It expressed the view that 

all pre-1923 works should fall into the public domain in order to mirror the protection afforded 

other classes of works.547 In making this recommendation, MLA noted that when Congress 

indicated that pre-1972 sound recordings would enter the public domain in 2067, it clearly chose 

2067 (originally 2047, but extended to 2067 in the Copyright Term Extension Act) to ensure a 

minimum 95 year term for all such recordings. According to the House Report on the 1976 

Copyright Act, enacting a provision that takes away subsisting common law rights and substitutes 

statutory rights would be “fully in harmony with the constitutional requirements of due process” 

provided that the statutory rights endure for a reasonable period.548 MLA reasoned that because 

Congress has already established a term of at least 95 years of potential protection under state law 

for pre-1972 sound recordings, Congress must have determined that a 95-year term would comply 

with the requirements of due process.549 

d. Expiration in 2067 

 While RIAA and A2IM generally opposed federalization, they expressed the position that 

the only way to create clarity with regard to term of protection is to base the term on the year of 

first fixation of any sound recording (because determining the date of “first publication” for very 

old recordings would be a nearly impossible factual task in many instances), or to fix an end of 

term (2067) that matches existing law. Under their proposal, all pre-1923 works would continue 

to enjoy protection until 2067. RIAA and A2IM concluded that legislation that cuts off 

 

547 MLA at 12. 

548 H.R. REP. NO. 94-1476, at 139 (1976). 

549 MLA at 13. 

 
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protections for existing state- and common law-protected recordings would deny right holders of 

“all economically viable use of those works,” and takings claims would arise.550

e. Other alternatives 

 In their reply comment, Professor Elizabeth Townsend Gard and her 2011 copyright class 

at Tulane University School of Law suggested that sound recordings created before February 15, 

1972 should enjoy a term that endures for 50 years from fixation. However, under their proposal, 

in no case would the term of copyright in such a work expire before five years from enactment of 

federalization, and if the work is made available to the public by the copyright holder within five 

years of enactment, the term of copyright would not expire before February 15, 2067.551 

 Professor Townsend Gard and her class pointed toward several benefits of such a term 

structure. They posited that a significant number of works that have no commercial value or 

known owner interested in commercialization would enter the public domain and would thus be 

available for unfettered preservation and access. They pointed out that the structure would allow 

right holders who saw value in their recordings to secure a term that lasted until 2067 by making 

the work available to the public during a reasonable transition period. Such owners would not be 

deprived of any property and no takings concerns would arise. Finally, they noted that the 

structure, based on date of creation, would reasonably allow the public to determine whether a 

work was under copyright protection.552 

 This proposal was the subject of much discussion during the June 3, 2011 roundtable. 

RIAA raised concerns that a requirement that the work must be made available to the public in 

order to secure protection until 2067 would lead to costly litigation as to whether that requirement 

 

550 RIAA/A2IM at 29,.33-34. 

551 Townsend Gard Reply at 22. 

552 Id.
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had indeed been met.553 Professor Townsend Gard responded to the litigation concern by noting 

that there was no significant litigation regarding compliance with section 303(a) after enactment 

of the 1976 Act.554 

 Professor Townsend Gard suggested that the reasonable transition period in and of itself 

may suffice to address takings concerns, a suggestion that was strongly disputed by RIAA.555 

The length of the transition period was also a disputed matter. ARSC stated that as its goal is 

access and preservation, it would not necessarily object to a reasonable transition period within 

which an owner may make the work available to the public in order to secure a longer term. At 

the same time it flatly rejected the notion that a transition period of 25 years was reasonable.556 

2. Fifth Amendment Takings Claims 

 Before recommending the term of protection to be provided for pre-1972 sound 

recordings under federal law, it is necessary to review an additional issue: whether shortening the 

term of protection currently provided under state law would constitute a “taking” for which 

compensation must be paid.557 Federalization of pre-1972 sound recordings would entail 

preempting state law protection, which would deprive owners of vested interests currently held 

under state law and therefore could raise Fifth Amendment takings claims. So long as the state 

law-based property right is replaced by a federal right of equal strength and duration, no issues 

should arise, but what would be the result if the federal term of protection were shorter than that 

which is currently enjoyed under state law? 

 

553 Pariser T2 at 425-26. 

554 Townsend Gard T2 at 429. 

555 Pariser T2 at 439-41. 

556 Brooks T2 at 450-51. 

557 The Fifth Amendment provides that “No person shall be ... deprived of life, liberty or property without 

due process of law; nor shall private property be taken for public use without just compensation.” U.S.

CONST. amend. V. See generally 1 NIMMER ON COPYRIGHT §1.11. 
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A takings claim may be facial or it may be “as applied.” In either type of claim, the 

property must be taken for the “public use.” The Supreme Court has embraced a broad 

interpretation of “public use” as “public purpose.”558 Furthermore, the Court reiterated that its 

public use jurisprudence has eschewed rigid formulas and intrusive scrutiny in favor of affording 

legislatures broad latitude in determining what public needs justify the use of the takings 

power.559 While there is no reported case law directly addressing whether the sort of alleged 

taking that may occur under federalization of pre-1972 sound recordings would be for the public 

use, this Report concludes that federalization would advance preservation of and access to 

copyrighted works. Such preservation and access appear to be a rational exercise of the 

Copyright Clause authority to promote the progress of science and useful arts, and a legitimate 

public purpose.560 

 a. Facial takings 

 A facial challenge requires a court to conclude that the mere enactment of legislation 

constitutes a taking. The test to be applied in a facial challenge is “fairly straightforward. A 

statute regulating the uses that can be made of property effects a taking if it ‘denies an owner 

economically viable use of his [property].’”561 It is rare for facial takings claims to succeed 

because it is usually impossible to ascertain the economic impact of legislation until specific 

applications can be considered.562 Not surprisingly, no stakeholders commented on whether 

federalization would give rise to facial takings claims. 

 

558 See Kelo v. City of New London, 545 U.S. 469, 480 (2005). 

559 See id. at 483. 

560 See Eldred v. Ashcroft, 537 U.S. 186, 204 (2003) (Supreme Court’s substantial deference to Congress’s 

rational exercise of its Copyright Clause authority). 

561 Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295-96 (1981). 

 

562 See General Agreement On Tariffs And Trade (GATT): Intellectual Property Provisions, Joint Hearing 

Before the Subcomm. on Intellectual Property and Judicial Administration of the H. Comm. on the 
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b. As-applied takings

Reviews of Fifth Amendment as-applied takings claims consider the claim of a particular 

party who asserts that he or she has been deprived of property as a result of the specific 

application of the statute to him or her. Such claims are generally assessed under the framework 

articulated in Penn Central Transp. Co. v. City of New York.

563 The principal consideration is 

“[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the 

regulation has interfered with distinct investment-backed expectations.”564 A further 

consideration is the nature of the governmental action. Interference with property that can be 

characterized as a physical invasion by government may be more readily found to be a taking 

than interference that arises from some public program adjusting the benefits and burdens of 

economic life to promote the common good.565 Additional relevant points in analyzing a takings 

claim include the fact that “a reduction in the value of property is not necessarily equated with a 

taking;”566 statutory provisions that “moderate and mitigate the economic impact” are relevant to 

the analysis; 567 and regulation of property rights does not constitute a taking when an individual’s 

reasonable, investment-backed expectations can continue to be realized as long as he complies 

with reasonable regulations.568

 Judiciary and the Subcomm. on Patents, Copyrights and Trademarks of the S. Comm. on the Judiciary, 

103rd Cong. at 150 (1994)(“GATT Hearing”) (testimony of Christopher Schroeder, Counsel to the 

Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice). 

563 438 U.S. 104 (1978). This brief discussion of takings is derived from Eva Subotnik and June Besek, 

Fifth Amendment Considerations: Extending Federal Copyright to Pre-1972 Sound Recordings 

(unpublished manuscript on file with author). 

564 Penn Central, 438 U.S. at 124. 

565 See id. 

566 Andrus v. Allard, 444 U.S. 51, 66 (1979). 

567 Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225-26 (1986). 

568 See U.S. v. Locke, 471 U.S. 84, 107-108 (1985) (citing Texaco, Inc. v. Short, 454 U.S. 516 (1982) (“this 
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In the 1976 Copyright Act, Congress considered as-applied takings concerns similar to 

those raised by federalization of pre-1972 sound recordings when it removed perpetual protection 

for unpublished works and substituted limited terms of federal copyright protection. In the 1976 

Act, Congress ensured that all works being brought under federal copyright would enjoy at least 

25 years of protection, until the end of 2002.569 If works were published on or before that date, 

they received another 25 years of protection, until 2027, a date that was extended by 20 years in 

the Sonny Bono Copyright Term Extension Act, thus affording protection until the end of 

2047.570

 The House Report on the 1976 Copyright Act explained the purpose of the provision, 17 

U.S.C. § 303: 

 Theoretically, at least, the legal impact of section 303 would be far 

reaching. Under it, every “original work of authorship” fixed in tangible form 

that is in existence would be given statutory copyright protection as long as the 

work is not in the public domain in this country. The vast majority of these 

works consist of private material that no one is interested in protecting or 

infringing, but section 303 would still have practical effects for a prodigious 

body of material already in existence. Looked at another way, however, section 

303 would have a genuinely restrictive effect. Its basic purpose is to substitute 

statutory for common law copyright for everything now protected at common 

law, and to substitute reasonable time limits for the perpetual protection now 

available. In general, the substituted time limits are those applicable to works 

created after the effective date of the law; for example, an unpublished work 

written in 1945 whose author dies in 1980 would be protected under the statute 

from the effective date through 2030 (50 years after the author’s death). 

 A special problem under this provision is what to do with works whose 

ordinary statutory terms will have expired or will be nearing expiration on the 

effective date. The committee believes that a provision taking away subsisting 

 Court has never required [Congress] to compensate the owner for the consequences of his own neglect.”)). 

569 17 U.S.C. § 303(a) provides: 

Duration of copyright: Works created but not published or copyrighted before January 1, 1978 

(a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or 

copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no 

case, however, shall the term of copyright in such work expire before December 31, 2002; and, if 

the work is published on or before December 31, 2002, the term of copyright shall not expire before 

December 31, 2047. 

570 Pub. L. No. 105-298, 112 Stat. 2827 (1998). 
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common law rights and substituting statutory rights for a reasonable period is 

fully in harmony with the constitutional requirements of due process, but it is 

necessary to fix a “reasonable period” for this purpose. Section 303 provides that 

under no circumstances would copyright protection expire before December 31, 

2002, and also attempts to encourage publication by providing 25 years more 

protection (through 2027) if the work were published before the end of 2002.571 

Congress again considered as-applied takings concerns in 1994 in connection with the 

provisions of URAA,572 which restored copyright protection to certain works of foreign origin 

that were in the public domain in the United States. This restoration arguably usurped the rights 

of “reliance parties”573 whose rights to use certain public domain works may have been curtailed. 

In hearings addressing these provisions, Congress was advised that it could successfully address 

this concern by providing reliance parties with a reasonable period of time during which they 

could continue certain uses of restored works, and by limiting the liability reliance parties may 

face for their use of restored works.574 

Several stakeholders addressed the notion that federalization would bring about asapplied takings claims. RIAA and A2IM observed that if federalization placed older sound 

recordings into the public domain, either immediately upon enactment or at some future date 

prior to 2067, it would raise serious takings concerns. They noted that there are many examples 

of back-catalog materials that have commercial viability, and asserted that reducing the term 

would cut off property rights in those recordings. They acknowledged that the economic impact 

of federalization is measured on an as-applied basis, and that it is therefore difficult to make 

broad predictions of the value of such takings. They noted that when previous copyright 

legislation, such as the URAA, raised potential takings concerns, provisions were included to 

 

571 H.R. REP. NO. 94-1476, at 138-39 (1976). 

572 Pub. L. No. 103-465, 108 Stat. 4809, 4973 (1994). 

573 See 17 U.S.C. § 104A(h)(4). 

574 See 17 U.S.C. § 104A(d); see also GATT Hearing, supra note 562, at 159 (1994) (testimony of 

Christopher Schroeder, Counsel to the Assistant Attorney General, Office of Legal Counsel, U.S. 

Department of Justice). 
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diminish those concerns. In their initial comments, RIAA and A2IM stated that it is not clear 

how any similar fixes for right holders could be formulated to overcome the takings problems 

posed by federalization of pre-1972 sound recordings, which would touch a far wider set of right 

holders than those affected by the URAA.575 

SAA commented that generally there was no need for additional protection for pre-1972 

sound recordings because owners already had a significant, exclusive period of protection to 

exploit the works. However, SAA acknowledged that there may be some unpublished recordings 

for which extended protection may be appropriate. SAA suggested that it may be appropriate to 

treat such works in a manner similar to the way unpublished items were brought under federal 

copyright protection in the Copyright Act of 1976, where such works were given a minimum term 

of 25 years of federal protection and an extended term of protection if they were published within 

that twenty-five year period. However, SAA suggested that the window that is available to 

secure extended protection should be short – no longer than 5 years – and it should not extend to 

pre-1923 sound recordings.576

ARSC remarked that it did not see any need for federal protection of pre-1923 sound 

recordings because such works already had a significant period of protection under state law.577 

It went on to assert in its reply comment that federalization would not result in a total divestiture 

of rights, and thus no taking would occur. It added that even if a taking were found to exist, any 

compensation due would be extremely low. 578 Both ARSC and MLA concluded that pre-1923 

recordings are clearly not valued by their owners, as evidenced by the almost complete 

unavailability of those recordings. They went on to question whether any just compensation is 

 

575 RIAA/A2IM at 33-34. 

576 SAA at 9. 

577 ARSC at 6. 

578 ARSC Reply at 22-24. 
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due for takings of property which has de minimis economic value.579 MLA added to its takings 

analysis in its reply comment, stating that right holders whose works may be injected into the 

public domain by federalization would not lose all economically productive use of their property. 

Instead, MLA maintained that such right holders would not be foreclosed from making use of the 

works; they just would not have exclusive rights.580

At the June 3, 2011 roundtable, much of the discussion regarding takings revolved 

around whether federalization could be instituted in a manner that provided “just compensation” 

for the extinguishment of ownership under state law. While “just compensation” is technically a 

remedial matter to be considered after a finding that a taking has in fact occurred,581 it is relevant 

to consider whether provisions included as part of federalization, such as those that would enable 

right holders to obtain reasonable, investment-backed expectations, would prevent the finding of 

a taking under the criteria set forth in Penn Central Transp. Co. v. City of New York.

582 

Stakeholders who focused most intently on preservation and access, such as MLA and ARSC, 

suggested that application of the ordinary federal statutory terms to pre-1972 sound recordings 

should be sufficient to address any takings concerns. They proposed varying terms that should be 

available under federalization, which are discussed in further detail above. They also maintained 

that pre-1923 sound recordings could go immediately into the public domain without significant 

takings concerns because they had already enjoyed a significant term of protection, and because 

such works had only de minimis value.583 

 

579 ARSC at 6; MLA at 13-14. 

580 MLA Reply at 8-9. 

581 An award of “just compensation” is the fair market value of the property at the time of the taking. New 

York v. Sage, 239 U.S. 57, 61 (1915). 

582 Penn Centra identified the principle criteria for determining a taking as “[t]he economic impact of the 

regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct 

investment-backed expectations” and the nature of the governmental action. 438 U.S. at 124. 

583 Brooks T2 at 450-451; Harbeson T2 at 451-53. 
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Participants representing right holders in pre-1972 sound recordings generally observed 

that the takings problem is directly proportionate to the degree to which state laws are affected, 

i.e. the more state laws are left intact, the less a taking would exist.584 In response to the proposal 

by Professor Townsend Gard and her Tulane Law School copyright law class, which included 

suggestions for providing an avenue for right holders to secure protection for works until 2067,585

RIAA acknowledged that if sound recording right holders were able to obtain a term of protection 

that lasted until 2067, federalization would “probably not” present a takings problem.586 RIAA 

also commented that if federal copyright law covered pre-1972 sound recordings until 2067, then 

such legislation would not have “taken away rights, however grand or de minimis they may be, 

and we don’t have to worry about takings.”587 

3. Recommendation

The Office recognizes that pre-1972 sound recordings are both numerous and unique, and 

that the economic impact of altering the current 2067 date for expiration of protection could vary 

widely. It is reasonable to conclude that at least in some cases, the reduction of term that would 

result from applying ordinary federal terms could produce a loss of significant economic value. 

Most pre-1972 sound recordings, however, have little or no economic value. The Office does not 

wish to advise Congress to protect all pre-1972 sound recordings under federal law until 2067 

when only a fraction have economic value, particularly when it would be a significant public 

benefit to make the others widely available for study and research. 

 

584 Pariser T2 at 424. 

585 Townsend Gard Reply at 22-23. 

586 Pariser T2 at 460-61. 

587 Id. at 424. 
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In the past, when Congress considered copyright legislation that might have curtailed 

parties’ vested ownership interests, e.g. in the Copyright Act of 1976 and the URAA, it prudently 

chose to address right holders’ reasonable investment-backed expectations in the legislation itself. 

The Office recommends similar prudent attention to the takings concerns raised here. It 

recommends providing an avenue for right holders to realize reasonable investment-backed 

expectations, in order to ensure that no unlawful takings occur as a consequence of federalization.

 Federalization would provide a public benefit by enhancing preservation of and access to 

these old recordings that are an important part of our culture. The Office believes that 

federalization, in effect, constitutes a “public program adjusting the benefits of public life to 

promote the common good.”588 Having considered the views of the various stakeholders on the 

issue, the Office believes, in principle, that a term of protection for all pre-1972 sound recordings 

that extends until 2067 is excessive, and that pre-1972 sound recordings should have their term of 

protection harmonized with that of other works from the same time period. Absent takings clause 

considerations, the Office would therefore recommend that (1) all published pre-1923 sound 

recordings enter the public domain immediately, (2) other published pre-1972 sound recordings 

remain protected by copyright until 95 years after their date of first publication, and (3) 

unpublished pre-1972 sound recordings enter the public domain 120 years after they were 

created. However, as noted above, the Office understands the prudence of making adjustments to 

address takings concerns. 

In order to ensure that federalization does not effect an unlawful taking, the Office 

recommends that all published pre-1972 sound recordings other than those first published before 

1923 receive a term of protection of 95 years from publication, and that all unpublished pre-1972 

sound recordings receive a term of 120 years from creation. However, in all cases, those 

recordings would be eligible for protection until February 15, 2067, when federal preemption of 

 

588 Penn Central, 438 U.S. at 124. 
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state law protection is currently set to expire.589 To secure the full term of protection until 2067, 

the right holder of a pre-1972 sound recording would have to take certain actions during a 

reasonable transition period, described in the section below.590 The required actions include (1) 

making the work available to the public, and (2) providing notice to the Copyright Office that the 

work has been made available at a reasonable price and that the right holder intends thereby to 

secure a full term of protection. 

For works first published before 1923, the Office cannot recommend that the term of 

copyright subsist until 2067. Such a term – of 144 years or more following publication – would 

be unprecedented and, in the view of the Office, unjustified. Moreover, since all such works are 

from the acoustical era and are usually of such low quality that relatively few of them are 

marketable, it is difficult to fathom how the right holder could offer a compelling justification for 

continuing to own exclusive rights for the next 55 years.591 While a handful of pre-1923 works 

may still have some commercial value,592 that in and of itself does not justify maintaining 

copyright protection for another half century. The fact is that all other works published before 

1923 have entered the public domain. The Office sees no reason to create an anomaly by offering 

continued protection of such sound recordings until 2067. On the other hand, Congress 

recognized in the 1976 Copyright Act that providing at least an additional 25 years of protection 

for works protected at common law would constitute a “reasonable period” that would satisfy 

constitutional requirements of due process.593 Following that precedent, the Office believes that 

 

589 However, in all cases the term of protection for pre-1972 sound recordings would end no later than 

February 15, 2067, when federal preemption of state law protection is currently scheduled to end. Thus, 

the term of protection for an unpublished sound recording fixed in 1971 would end in 2067 rather than in 

2091, 120 years after it was fixed. The rationale for this is that under current law, protection will end in 

2067, and the Office sees no reason to extend the term even further. 

590 Chapter VI.C. 

591 See ARSC at 3; Brooks T2 at 347-48. 

 

592 See, e.g., Pariser T2 at 425 (recordings by Caruso and Sousa). 

593 H.R. REP. NO. 94–1476, at 139 (1976); see 17 U.S.C. § 303(a). 
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giving owners of rights in sound recordings published before 1923 an opportunity to retain 

exclusive rights for an additional 25 years after federalization of protection would constitute a 

similar reasonable period. 

The Office therefore recommends that a right holder of a sound recording first published 

before 1923 should be permitted to obtain an additional 25 years of protection under federal law 

if, during a reasonable transition period (but one that is somewhat shorter than the transition 

period for other pre-1972 sound recordings), the right holder makes the work available to the 

public and notifies the Copyright Office of that fact and of its intent to secure protection for that 

25-year period. 

 Requiring right holders to take some affirmative action to retain their rights in this 

situation is consistent with the Takings Clause.594 In the case of pre-1972 sound recordings, right 

holders would only lose the benefit of extended protection if they fail to make their works 

available and provide notice of such use, requirements which are designed to advance the 

interests of preservation of and public access to sound recordings. 

For published pre-1972 sound recordings, the recommended term of 95 years from 

publication is the term that the recordings would have if they had obtained a federal copyright 

upon first publication.595 For unpublished works, the recommended term of 120 years from 

creation is the term the works would have received if they were anonymous or pseudonymous 

works or if they were created as works for hire and had entered the federal copyright system in 

1978 along with other unpublished works previously protected under state law.596 The Office 

believes that the 120-year term should apply even if the sound recording was not anonymous, 

 

594 See U.S. v. Locke, 471 U.S. 84, 107-108 (1985) (citing Texaco, Inc. v. Short, 454 U.S. 516 (1982) (“this 

Court has never required [Congress] to compensate the owner for the consequences of his own neglect”)). 

595 See 17 U.S.C. § 304(a), (b). 

596 See 17 U.S.C. §§ 303, 302(c). 
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pseudonymous, or a work made for hire, and notwithstanding the general rule in Title 17 that 

unpublished works receive a term of the life of the (last surviving) author plus 70 years.597 The 

Office believes that giving all unpublished pre-1972 sound recordings a fixed term of 120 years 

from creation,598 rather than a term based on the year in which the author (or the last surviving coauthor) died, is the best approach as a practical matter. This is due to a combination of factors 

such as the collaborative nature of sound recording authorship, the difficulties in calculating term 

of protection based upon the life of an author (or, in many cases, multiple authors) who may have 

died many decades ago, and the likelihood that many pre-1972 sound recordings were created as 

works for hire. 

As indicated above, the process for assessing as-applied takings claims is articulated in 

Penn Central Transp. Co. v. City of New York. The principal consideration is “[t]he economic 

impact of the regulation on the claimant and, particularly, the extent to which the regulation has 

interfered with distinct investment-backed expectations.”599 In the case of pre-1972 sound 

recordings, which are numerous and unique, the economic impact will vary widely, but it is 

reasonable to conclude that reducing the term for certain works may result in a loss of significant 

economic value. 

Therefore, the recommendation includes an avenue for right holders to fulfill reasonable 

investment-backed expectations in the form of both a reasonable automatic transition term of 

federal protection and a means to exercise an option to extend protection to 2067 – an option 

likely to be exercised only for works with commercial value. The Office understands that 

providing such an opportunity for right holders to “moderate and mitigate the economic impact” 

 

597 Sections 303 and 302(a) and (b) of the Copyright Act of 1976 would have provided a term of life of the 

author plus 50 years, with a minimum term ending at the end of 2002, but the Sonny Bono Copyright Term 

Extension Act of 1998 extended that term to life plus 70 years. Pub. L. No. 105-298, 112 Stat. 2827, 

section 102(b)(1) and (2)(1998) (amending 17 U.S.C. § 302(a) and (b)). 

598 Subject to an absolute end of protection on February 15, 2067 in all cases. 

599 Penn Central, 438 U.S. at 124. 
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significantly diminishes the legitimacy and likelihood of success of any takings claims that might 

be asserted.600

C. Transition Period 

 The Notice of Inquiry pointed out that it may be necessary to provide a transition period 

to accommodate the switch from state protection of pre-1972 sound recordings to federal 

protection. The Office sought comments on whether provision should be made for recordings for 

which the statutory term of protection would already have expired, or would be expiring shortly, 

by providing federal protection for a “reasonable period,” possibly with an opportunity for a 

further extension of protection if the recordings are made available to the public during that 

interim period. As indicated above, Congress has in the past determined that taking away 

subsisting common law rights and substituting statutory rights for a reasonable period is fully in 

harmony with the constitutional requirements of due process.601 However, it is necessary to 

determine what constitutes a “reasonable period.”602 

1. Length of Transition Period

 There is some precedent on the question of what constitutes a reasonable transition 

period. Congress addressed the potential effects on vested rights in the 1976 Copyright Act, 

when it removed perpetual state law protection for unpublished works but provided that all 

unpublished works would continue to enjoy copyright for at least an additional 25 years. So far 

as the Office is aware, no takings claims were made as a result of this legislation. 

 

600 See Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225-26 (1986). 

601 See supra Chapter VI.B.2.b. 

602 To be clear, it is possible that providing a reasonable transitional period may in and of itself serve as 

providing reasonable just compensation for any taking of common law rights. 
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 The stakeholders in the current proceeding held varying views as to what sort of 

transition period, if any, would be appropriate in the case of federalization of pre-1972 sound 

recordings. Professor Townsend Gard expressed the view that either a one-year or five-year 

transition period would be sufficient.603 ARSC considered a brief transitional period to be 

acceptable, but cautioned that it would be unreasonable to provide for a term that would extend to 

2067.604 SAA stated that a five year transition period would be reasonable, but also expressed the 

view that it would be unreasonable to provide for a term that would extend to 2067.605 Several 

parties said that a transition period of 25 years would be unreasonable and excessive.606 In fact, 

no party endorsed a transition period of 25 years. However, stakeholders representing rights 

holders maintained their general opposition to federalization or to any shortening of the terms 

currently enjoyed under state law. 

2. What Constitutes “Publicly Available” and “Notice Filed in the Office” 

The questions of what would qualify as making a sound recording “publicly available,” 

and what should be included in the “notice filed in the Office” for purposes of obtaining a term of 

protection that extends until 2067, were first raised at the roundtable. No stakeholders provided 

specific proposals. However, several raised concerns that should be considered in setting the 

requirements for obtaining protection until 2067. These concerns included whether merely 

making a recording available as a noninteractive stream could qualify as making the work 

“publicly available;” whether there would be an ongoing obligation for a right holder to state that 

 

603 Townsend Gard Reply at 22-23; Townsend Gard T2 at 438, 440. 

604 Brooks T2 at 438-39. 

605 SAA at 9. 

606 Brooks T2 at 450-51; Harbeson T2 at 451-53. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

169

it is still exploiting a work; the economic and procedural burdens of a notice requirement; and 

whether a notice requirement would constitute a type of formality.607

 3. Recommendation

The Office recommends a transition period falling between six and ten years for all pre1972 sound recordings other than those first published before 1923. Whether the period is closer 

to six years or closer to ten is a question on which affected parties should provide additional 

input. Such a transition period is somewhat longer than the range of one to five year transition 

periods preferred by non-right holder stakeholders and is well short of the 25-year minimum 

transition period provided in the 1976 Act. In addition, a six year transition period coincides with 

the existing statute of limitations for a takings claim as set forth in 28 U.S.C. § 2501, which 

would ensure that no right holder could initiate a takings claim after the opportunity to exercise 

the option to extend the term has expired. As a practical matter, providing for a transition period 

of at least six years would force right holders to decide whether to assert a takings claim before 

the end of the transition period. Few if any are likely to do so, since the option of obtaining the 

extended term by making the work available and notifying the Copyright Office would not be 

very burdensome. But providing for a transition period that is sufficiently long that a takings 

claim must be asserted by the end of that period would also have the benefit of obtaining finality 

on the takings issue in a relatively short period of time. 

Works first published before 1923 warrant special consideration because, relative to other 

works of authorship under the Copyright Act, they would be in the public domain by now had 

they been federalized in 1976. Therefore, although a transition period is still prudent to address 

takings concerns, the Office recommends a shorter transition period of three years. A shorter 

period is justified for such works in light of (1) the likelihood that very few, if any, right holders 

will seek to extend the duration of their exclusive rights in those works, and (2) the great age of 

 

607 Rosenthal T2 at 401; Schwartz T2 at 402-04; Townsend Gard T2 at 404-05, 408-09. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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those recordings and the concomitant need to permit preservation activities unfettered by 

concerns that such activities might constitute copyright infringement.608

 Concerning what constitutes making the work sufficiently available to qualify for 

protection until 2067 (or, in the case of works published before 1923, for an additional 25 years), 

the Office again recommends that additional input be sought from the affected parties. However, 

the Office believes that a work should be deemed available only if (1) it is available to the public 

at a reasonable price, and (2) phonorecords are available to users. The latter point is especially 

important. The Office does not believe that the requirement of making recordings available to the 

public should be satisfied merely by providing non-interactive streaming access to the works.609 

Many stakeholders asserted that making works available only by means of streaming does not 

provide sufficient access.610 This suggests that the requirement should be met by distribution of 

phonorecords of the recordings, which could but need not be achieved solely by means of digital 

transmissions of phonorecords. As indicated above, the price must be reasonable. 

 The notice provided to the Office might be as simple as a notice similar to the one 

prescribed in 17 U.S.C. § 108(h)(2)(C) that a work is subject to normal commercial exploitation 

or that a copy or phonorecord of the work can be obtained at a reasonable price.611 Alternatively, 

it might be satisfied by submitting an application to register the copyright in the sound recording, 

with a statement that the work has been made available to the public at a reasonable price. 

 

608 See MLA at 6-7, 10; SAA at 2. 

609 It may be useful to seek further input as to whether provision of interactive (i.e., “on-demand”) 

streaming ought to be sufficient to satisfy the requirements to secure protection through 2067. However, 

for reasons discussed immediately below, the Office is skeptical that such access should be considered 

sufficient. 

610 A number of commenters pointed out that research often requires the ability to physically handle 

phonorecords, for example to study them in greater detail, to filter elements out, and to occasionally adjust 

the rotation speed of cylinder and disk phonorecords. Brylawski T1 at 52; Brooks T1 at 110-12, T2 at 380-

82; Loughney T2 at 348-49. It is not clear whether all of those acts, or their equivalents, could be achieved 

with a downloaded copy. Nevertheless, the Office is not inclined to recommend a requirement that the 

recordings be distributed in the form of tangible phonorecords. 

611 See 37 C.F.R. § 201.39. 
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Consideration should also be given to whether additional periodic notices should be required, to 

confirm that the sound recording continues to be available to the public.612

D. Registration

1. Stakeholder Concerns about Registration

 Owners of copyrighted works who register their works in a timely manner are eligible for 

statutory damages and attorney’s fees. Moreover, registration is a prerequisite for a suit for 

infringement of copyright in a United States work. While the Notice of Inquiry did not 

specifically seek input on registration issues, a handful of stakeholders offered views on the effect 

that federalization would have on copyright owners of pre-1972 sound recordings in light of the 

registration provisions of the Copyright Act. 

 RIAA and A2IM questioned whether federalization would require that an entire catalog 

of sound recordings must be immediately registered in order to ensure their ability to enforce 

rights in their recordings. They expressed concern that this would be an undue burden on right 

holders who would have to submit thousands of copyright registrations and recordations for these 

recordings, and on the Copyright Office, which would have to process them, within a short time 

after the law went into effect. They cited the requirements of section 411 of the Copyright Act, 

which establishes registration as a prerequisite for an infringement suit.613 They also pointed to 

 

612 RIAA suggested that a requirement of “you must assert the rights or you lose the rights” is “anathema 

to copyright law.” Schwartz T2 at 391, 402-04. However, the notice requirement suggested herein, and 

any possible additional periodic notices, would be required only if a copyright owner wishes to secure the 

additional benefit of an extraordinarily long term, one that is beyond (1) that which other works enjoy 

under U.S. copyright law, (2) that provided by the laws of most countries around the world, and (3) that 

which is required by international obligations. The Copyright Act already offers certain additional benefits 

that copyright owners may enjoy only if they comply with certain formalities. See, e.g., 17 U.S.C. § 412 

(registration as prerequisite for statutory damages and attorney’s fees); 17 U.S.C. § 108(h)(2)(c) (notice by 

copyright owner that a work is subject to normal commercial exploitation or that a copy of the work may be 

obtained at a reasonable price makes inapplicable the privilege of libraries and archives to reproduce, 

distribute, display or perform copies or phonorecords of works during the last 20 years of copyright term). 

613 17 U.S.C. § 411(a) provides, in pertinent part: 
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section 412, which sets forth “timely” registration as an eligibility requirement for statutory 

damages or attorney’s fees.614 They stated that such provisions would have to be modified to 

accommodate registrations for pre-1972 sound recordings to avoid providing federal rights 

devoid of effective remedies.615 Similar sentiments regarding the burdens of registration were 

expressed in the roundtable by A2IM and NMPA.616 

 In its reply comment, ARSC stated that it would be delighted if federalization encouraged 

thousands of copyright registrations. It claimed that federal registrations provide a means of 

enforcing compliance with other requirements of copyright; enhance publicly available 

information; increase the value of the works to proprietors and users; and aid title searches. It 

asserted that extending these inducements for registration and deposit to pre-1972 sound 

 Except for an action brought for a violation of the rights of the author under 

section 106A(a), and subject to the provisions of subsection (b), no action for 

infringement of the copyright in any United States work shall be instituted until 

preregistration or registration of the copyright claim has been made in 

accordance with this title. In any case, however, where the deposit, application, 

and fee required for registration have been delivered to the Copyright Office in 

proper form and registration has been refused, the applicant is entitled to 

institute an action for infringement if notice thereof, with a copy of the 

complaint, is served on the Register of Copyrights. 

614 17 U.S.C. § 412: 

In any action under this title, other than an action brought for a violation of 

the rights of the author under section 106A(a), an action for infringement of the 

copyright of a work that has been preregistered under section 408(f) before the 

commencement of the infringement and that has an effective date of registration 

not later than the earlier of 3 months after the first publication of the work or 1 

month after the copyright owner has learned of the infringement, or an action 

instituted under section 411(c), no award of statutory damages or of attorney’s 

fees, as provided by sections 504 and 505, shall be made for— 

(1) any infringement of copyright in an unpublished work commenced 

before the effective date of its registration; or 

(2) any infringement of copyright commenced after first publication of the 

work and before the effective date of its registration, unless such registration 

is made within three months after the first publication of the work. 

615 RIAA/A2IM at 30. They repeated these assertions at the public meeting. Schwartz T1 at 27, 95; 

Pariser T1 at 234-37, 273-79. 

616 Bengloff T1 at 281-84; Rosenthal T1 at 288-90. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

173

recordings would promote predictability and public access to these works, as well as aid in the 

preservation of historic recordings.617 

 The application of registration requirements as well as other provisions of current law to 

pre-1972 sound recordings presents legitimate concerns. Specifically: sections 405 and 406 

would need to be amended to clarify that the validity of a copyright in a pre-1972 sound 

recording is not affected by the distribution, before the effective date of the Berne Convention 

Implementation Act of 1988, of phonorecords of the sound recording without a copyright notice 

or with a defective copyright notice; section 407 regarding deposit requirements may need to be 

amended to accommodate instances in which best edition deposits are no longer available; section 

410 regarding prima facie evidence of the validity of the copyright and of the facts stated in the 

certificate may need to be altered in recognition of the fact that registration of pre-1972 sound 

recordings will occur well beyond five years from first publication of the work; and section 205 

regarding priority of conflicting transfers may need to be reconsidered in recognition of the fact 

that for over a century, transfers of ownership of rights in pre-1972 sound recordings have taken 

place without recording the documents of transfer with the Copyright Office. 

2. Recommendation

 The Office does not see a need to amend the section 411 requirement of registration as a 

prerequisite for an infringement suit for pre-1972 sound recordings.618 If a pre-1972 sound 

recording is infringed, registration of the copyright could be made easily and quickly. However, 

 

617 ARSC Reply at 18-19; see also Brooks T1 at 239-40. 

618 Some courts have erroneously interpreted section 411(a) as being satisfied merely by submitting an 

application, fee and deposit to the Copyright Office, rather than by the Office’s issuance of a certificate of 

registration or its refusal to issue a certificate. See, e.g., Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 

F.3d 612 (9th Cir.), cert. denied, 131 S.Ct. 686 (2010). But see La Resolana Architects, PA v. Clay 

Realtors Angel Fire, 416 F.3d 1195, 1202-04 (10th Cir. 2005). At most, a transitional amendment 

providing that, for a period of perhaps three to five years, an owner of a copyright in a pre-1972 sound 

recording could satisfy the requirements of section 411(a) simply by submitting the required elements to 

the Copyright Office, would remedy any short-term disadvantage experienced by copyright owneres with 

respect to these newly federalized works. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

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the Office understands the desirability of modifying section 412 eligibility requirements for 

statutory damages and attorney’s fees for pre-1972 sound recordings. Section 412 provides as a 

general matter that a copyright owner who prevails on a claim of copyright infringement is 

eligible to seek an award of statutory damages or attorney’s fees if the infringed work was 

registered prior to the commencement of the infringement or within 3 months after the work was 

first published. For pre-1972 sound recordings that are infringed on or shortly after the date on 

which federal protection commences, a “timely” registration under section 412 would be difficult 

if not impossible to accomplish. To avoid placing an unreasonable burden on right holders to 

submit registration applications in the first days following the effective date of federal protection 

for pre-1972 sound recordings, and the resulting burden on the Copyright Office, the Office 

recommends a transitional provision that would permit, for a period of perhaps three to five years, 

owners of copyrights in pre-1972 sound recordings to seek statutory damages and attorney’s fees 

notwithstanding their failure to register the copyright prior to the commencement of infringement. 

Such a provision would encourage registration within a reasonable time but make 

accommodations for copyright owners – as well as for the registration staff of the Copyright 

Office – faced with the sudden need to register great numbers of works in a short period of time. 

 While the Office does not at this time have specific recommendations for dealing with the 

remaining issues relating to registration of pre-1972 sound recordings, it has suggested in the 

preceding section how those issues might be resolved. Certainly none of those issues is 

insuperable, but they may require additional consideration and input from stakeholders. 
United States Copyright Office PRE-1972 SOUND RECORDINGS

175

 LP disc 

VII. RECOMMENDATIONS 

 The U.S. Copyright Office hereby makes the following recommendations: 

 Federal copyright protection should apply to sound recordings fixed before February 15, 

1972, with special provisions to address ownership issues, term of protection, transition 

period, and registration. 

 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), 
United States Copyright Office PRE-1972 SOUND RECORDINGS

176

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 
United States Copyright Office PRE-1972 SOUND RECORDINGS

177

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, 

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 of 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 
United States Copyright Office PRE-1972 SOUND RECORDINGS

178

(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). 
appendix a Initial Public Notice
Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices 67777 

U.S. National Income and Product 

Accounts (NIPAs) published by the 

Bureau of Economic Analysis (BEA). 

The output data are based on a valueadded concept and come from productside estimates of Gross Domestic 

Product. 

The primary source of hours data is 

the BLS Current Employment Statistics 

(CES) program, which collects hours 

paid for nonsupervisory workers. These 

data are adjusted using data from the 

Current Population Survey, the National 

Compensation Survey, and other 

sources to account for differences 

between the desired concept of hours 

(hours worked for all employed persons) 

and the CES concept (hours paid for 

production and nonsupervisory 

employees). 

For detailed industries, annual output 

measures represent the total value of 

goods and services produced, and are 

based primarily on data from the U.S. 

Census Bureau. These measures use a 

sectoral output concept, which differs 

from real gross output in that it excludes 

output that is shipped to other 

establishments in the same industry. As 

with the nonfarm business sector 

productivity, industry hours are 

constructed primarily from payroll data 

from the BLS CES survey, supplemented 

with data from the CPS and other 

Federal data sources. 

Multifactor productivity is estimated 

in a conceptual framework based on the 

economic theory of the firm. This 

framework guides the construction and 

interpretation of the measures. For the 

private business and nonfarm business 

sectors, value added output is compared 

to inputs of labor and capital. For 

detailed industries, sectoral output is 

compared to capital and labor inputs as 

well as intermediate inputs of energy, 

non-energy materials and business 

services provided by establishments 

outside of each industry or sector. 

III. Desired Focus of Comments 

Comments and recommendations are 

requested from the public on the 

following aspects of the BLS 

productivity measurement program: 

• The scope and amount of detail 

covered by and published in the 

productivity datasets. 

• The concepts and frameworks used 

in measuring outputs, inputs, and 

productivity. 

• The sources of data used in 

productivity measurement. 

• Areas of research that the BLS 

productivity program should 

emphasize. 

In your recommendations to the 

productivity program, it would be 

particularly helpful if you could explain 

how the changes would make the data 

more accurate or more useful. 

Signed at Washington, DC, this 28th day of 

October 2010. 

Kimberley Hill, 

Chief, Division of Management Systems, 

Bureau of Labor Statistics. 

[FR Doc. 2010–27727 Filed 11–2–10; 8:45 am] 

BILLING CODE 4510–24–P 

LIBRARY OF CONGRESS 

[Docket No. 2010–4] 

Copyright Office; Federal Copyright 

Protection of Sound Recordings Fixed 

Before February 15, 1972 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of inquiry. 

SUMMARY: Congress has directed the 

Copyright Office to conduct a study on 

the desirability and means of bringing 

sound recordings fixed before February 

15, 1972, under Federal jurisdiction. 

Currently, such sound recordings are 

protected under a patchwork of State 

statutory and common laws from their 

date of creation until 2067. This notice 

requests written comments from all 

interested parties regarding Federal 

coverage of pre-1972 sound recordings. 

Specifically, the Office seeks comments 

on the likely effect of Federal protection 

upon preservation and public access, 

and the effect upon the economic 

interests of rights holders. The Office 

also seeks comments on how the 

incorporation of pre-1972 sound 

recordings into Federal law might best 

be achieved. 

DATES: Initial written comments must be 

received in the Office of the General 

Counsel of the Copyright Office no later 

than December 20, 2010. Reply 

comments must be received in the 

Office of the General Counsel of the 

Copyright Office no later than December 

3, 2010. 

ADDRESSES: The Copyright Office 

strongly prefers that comments be 

submitted electronically. A comment 

page containing a comment form is 

posted on the Copyright Office Web site 

at http://www.copyright.gov/docs/

sound/comments/comment-submissionindex.html. The Web site interface 

requires submitters to complete a form 

specifying name and organization, as 

applicable, and to upload comments as 

an attachment via a browse button. To 

meet accessibility standards, each 

comment must be uploaded in a single 

file in either the Adobe Portable 

Document File (PDF) format that 

contains searchable, accessible text (not 

an image); Microsoft Word; 

WordPerfect; Rich Text Format (RTF); or 

ASCII text file format (not a scanned 

document). The maximum file size is 6 

megabytes (MB). The name of the 

submitter and organization should 

appear on both the form and the face of 

the comments. All comments will be 

posted on the Copyright Office Web site, 

along with names and organizations. 

If electronic submission of comments 

is not feasible, comments may be 

delivered in hard copy. If hand 

delivered by a private party, an original 

and five copies of a comment or reply 

comment should be brought to the 

Library of Congress, U.S. Copyright 

Office, Room LM–401, James Madison 

Building, 101 Independence Ave., SE., 

Washington, DC 20559, between 8:30 

a.m. and 5 p.m. The envelope should be 

addressed as follows: Office of the 

General Counsel, U.S. Copyright Office. 

If delivered by a commercial courier, 

an original and five copies of a comment 

or reply comment must be delivered to 

the Congressional Courier Acceptance 

Site (‘‘CCAS’’) located at 2nd and D 

Streets, SE., Washington, DC between 

8:30 a.m. and 4 p.m. The envelope 

should be addressed as follows: Office 

of the General Counsel, U.S. Copyright 

Office, LM–403, James Madison 

Building, 101 Independence Avenue, 

SE., Washington, DC 20559. Please note 

that CCAS will not accept delivery by 

means of overnight delivery services 

such as Federal Express, United Parcel 

Service or DHL. 

If sent by mail (including overnight 

delivery using U.S. Postal Service 

Express Mail), an original and five 

copies of a comment or reply comment 

should be addressed to U.S. Copyright 

Office, Copyright GC/I&R, P.O. Box 

70400, Washington, DC 20024. 

FOR FURTHER INFORMATION CONTACT: 

David O. Carson, General Counsel, or 

Chris Weston, Attorney Advisor. 

Copyright GC/I&R, P.O. Box 70400, 

Washington, DC 20024. Telephone: 

(202) 707–8380. Telefax: (202) 707– 

8366. 

SUPPLEMENTARY INFORMATION: 

Introduction 

The Copyright Office is conducting a 

study on ‘‘the desirability of and means 

for bringing sound recordings fixed 

before February 15, 1972, under federal 

jurisdiction.’’ When it enacted the 

Omnibus Appropriations Act of 2009, 

Congress directed the Register of 

Copyrights to conduct such a study and 

seek comments from interested parties. 

H. Comm. On Appropriations, H.R. 

1105, Public Law 111–8 [Legislative 

Text and Explanatory Statement] 1769 


jlentini on DSKJ8SOYB1PROD with NOTICES
67778 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices 

1See generally Rob Bamberger and Sam 

Brylawski, National Recording Preservation Board, 

The State of Recorded Sound Preservation in the 

United States: A National Legacy At Risk in the 

Digital Age (2010). 

2Tim Brooks, National Recording Preservation 

Board, Survey of Reissues of U.S. Recordings 7 

(2005). For more recent years in that period, the 

percentage of recordings that were available 

reached 33 percent. 

(Comm. Print 2009). With this notice, 

the Copyright Office explains the 

background to the study and seeks 

public comment on whether pre-1972 

sound recordings should be brought 

within the Federal copyright statute. 

The Office also poses a number of 

questions on specific topics relevant to 

the overall inquiry. 

Background 

Sound recordings are ‘‘works that 

result from the fixation of a series of 

musical, spoken, or other sounds, but 

not including the sounds accompanying 

a motion picture or other audiovisual 

work, regardless of the nature of the 

material objects, such as disks, tapes or 

other phonorecords, in which they are 

embodied.’’ 17 U.S.C. 101. Until 1972, 

sound recordings were not among the 

works of authorship protected by the 

Federal copyright statute; they enjoyed 

protection only under State law. In 

1971, Congress passed the Sound 

Recording Amendment, which provided 

that sound recordings first fixed on or 

after February 15, 1972, would be 

eligible for protection under Federal 

copyright law. Sound recordings first 

fixed prior to that date (pre-1972 sound 

recordings) continued to be protected 

under State law. 

In 1976, when Congress passed the 

Copyright Revision Act, it created a 

unitary system of copyright, by bringing 

unpublished works (until then protected 

by State law) under the Federal 

copyright law, and preempting all State 

laws that provided rights equivalent to 

copyright. 17 U.S.C. 301(a). However, it 

explicitly excluded State laws 

concerning pre-1972 sound recordings 

from the general preemption provision, 

allowing those laws to continue in effect 

until 2047. 17 U.S.C. 301(c). That date 

was later extended by the Copyright 

Term Extension Act (CTEA) until 2067. 

Public Law 105–298, 112 Stat. 2827 

(1998). On February 15, 2067, all State 

law protection for pre-1972 sound 

recordings will be preempted by Federal 

law and will effectively cease. 

Thus, there are currently two primary 

regimes of protection for sound 

recordings: State law protects pre-1972 

recordings, and Federal copyright law 

protects sound recordings of U.S. origin 

first fixed on or after February 15, 1972. 

Federal law also protects pre-1972 

sound recordings of foreign origin that 

were eligible for copyright restoration 

under the Uruguay Round Agreements 

Act (URAA). Public Law 103–465, 108 

Stat. 4809, 4973 (1994). This legislation, 

passed in 1994 in order to implement 

U.S. obligations under the TRIPS 

(‘‘Trade Related Aspects of Intellectual 

Property’’) Agreement, ‘‘restored’’ 

copyright protection to certain works of 

foreign origin that were in the public 

domain in the United States on the 

effective date, which for most works 

was January 1, 1996. Because most other 

countries provide a 50-year term of 

protection for sound recordings, 

generally only those foreign sound 

recordings fixed in 1946 and after were 

eligible for restoration under the URAA. 

One consequence of the continued 

protection under State law of pre-1972 

sound recordings is that there are 

virtually no sound recordings in the 

public domain in the United States. Pre1972 sound recordings, no matter how 

old, can have State law protection until 

2067, so that some sound recordings 

will conceivably be protected for more 

than 170 years. Even pre-1972 foreign 

sound recordings that were ineligible for 

copyright restoration because their term 

of protection had expired in their home 

countries are eligible for State law 

protection, at least in New York. See 

Capitol Records, Inc. v. Naxos of 

America, Inc., 830 N.E.2d 250 (N.Y. 

2005). Those sound recordings that do 

have Federal copyright protection will 

not enter the public domain for many 

years. For example, sound recordings 

copyrighted in 1972 will not enter the 

public domain until the end of 2067. 

State law protection for pre-1972 

sound recordings is provided by a 

patchwork of criminal laws, civil 

statutes and common law. Almost all 

States have criminal laws that prohibit 

duplication and sale of recordings done 

knowingly and willfully with the intent 

to sell or profit commercially from the 

copies. Most States also have some form 

of civil protection, sometimes under the 

rubric of ‘‘common law copyright,’’ 

sometimes under ‘‘misappropriation’’ or 

‘‘unfair competition,’’ and sometimes 

under ‘‘right of publicity.’’ Occasionally 

these forms of protection are referred to 

collectively as ‘‘common law copyright’’ 

or ‘‘common law protection,’’ but in fact 

not all civil protection for sound 

recordings is common law—some States 

have statutes that relate to unauthorized 

use of pre-1972 sound recordings—and 

a true ‘‘common law copyright’’ claim 

differs from a claim grounded in unfair 

competition or right of publicity. In 

Capitol Records, Inc. v. Naxos of 

America, Inc., the New York Court of 

Appeals (the highest court of the State) 

explained that a common law copyright 

claim in New York ‘‘consists of two 

elements: (1) The existence of a valid 

copyright; and (2) unauthorized 

reproduction of the work protected by 

copyright.’’ Id. at 563. It went on to state 

that ‘‘[c]opyright law is distinguishable 

from unfair competition, which in 

addition to unauthorized copying and 

distribution requires competition in the 

marketplace or similar actions designed 

for commercial benefit.’’ Id. 

The scope of civil protection varies 

from State to State, and even within a 

State there is often uncertainty because 

there are few court decisions that have 

defined the scope of the rights and the 

existence and scope of exceptions. What 

is permissible in one State may not be 

in another. This uncertainty is 

compounded by the unsettled state of 

the law concerning the activities that 

subject an entity to a State’s jurisdiction. 

In general, Federal law is better 

defined, both as to the rights and the 

exceptions, and more consistent than 

State law. In some respects Federal law 

provides stronger protection. For 

example, owners of copyrighted works 

who timely register are eligible for 

statutory damages and attorneys fees. 17 

U.S.C. 412, 504, and 505. In addition, 

copyright-protected sound recordings 

are eligible for protection under 17 

U.S.C. 1201, which prohibits 

circumvention of technological 

protection that protects access to a 

copyrighted work. At the same time 

Federal law provides a more consistent 

and well-articulated set of exceptions. 

While some States include exceptions in 

their laws protecting sound recordings, 

the Federal ‘‘fair use’’ and library and 

archives exceptions—17 U.S.C. 107 and 

108, respectively—are likely much more 

robust and effective in providing safety 

valves for the unauthorized but socially 

valuable use of copyrighted works. 

The Copyright Office Study 

Faced with the uncertain patchwork 

of State laws that cover pre-1972 

recordings, libraries, archives and 

educational institutions have voiced 

serious concerns about their legal ability 

to preserve pre-1972 recordings, and 

provide access to them to researchers 

and scholars.1 A 2005 study concluded 

that copyright owners had, on average, 

made available on CD only 14 percent 

of the sound recordings they control 

that were released from 1890 through 

1964.2 Reissues of recordings from 

before World War II are particularly 

scarce. While the statistics and 

conclusions from that report are now 

five years old, the Copyright Office 

knows of no reason to believe that the 


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situation has changed significantly since 

that time. 

Copies of many recordings from these 

eras reside in libraries and archives. 

Their custodians, however, are 

concerned that without the certainty of 

Federal copyright exceptions, the 

reproduction and distribution activities 

necessary to preserve and provide 

access to these recordings will lack clear 

legal bases. As a result, some have urged 

that consideration be given to bringing 

pre-1972 sound recordings under 

Federal copyright law, so that users 

have to contend with only a single set 

of laws. 

When it directed the Register of 

Copyrights to conduct a study on the 

desirability of and means for bringing 

sound recordings fixed before February 

15, 1972 under Federal jurisdiction, 

Congress specifically stated: 

The study is 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 

is also to examine the means for 

accomplishing such coverage. 

H.R. 1105, Public Law 111–8 

[Legislative Text and Explanatory 

Statement] 1769. As part of the study, 

the Register is to provide an opportunity 

for interested parties to submit 

comments. The Register’s report to 

Congress on the results of the study is 

to include any recommendations that 

the Register considers appropriate. 

The body of pre-1972 sound 

recordings is vast. Commercially 

released ‘‘popular’’ recordings come 

most readily to mind—from Rudy Vallee 

to Frank Sinatra and Ella Fitzgerald to 

the Beatles and the Rolling Stones. But 

pre-1972 commercial recordings 

encompass a wide range of genres: 

ragtime and jazz, rhythm and blues, 

gospel, country and folk music, classical 

recordings, spoken word recordings and 

many others. There are, in addition, 

many unpublished recordings such as 

journalists’ tapes, oral histories, and 

ethnographic and folklore recordings. 

There are also recordings of old radio 

broadcasts, which were publicly 

disseminated by virtue of the broadcast, 

but in many cases are technically 

unpublished under the standards of the 

U.S. Copyright Act. 

The Copyright Office requests that 

parties with an interest in the question 

of whether to protect pre-1972 sound 

recordings as part of the Federal 

copyright statute submit their comments 

on the issue and, in those comments, 

respond to the specific questions below. 

A party need only address those issues 

on which it has information or views, 

but the Office asks that all answers be 

as comprehensive as possible. 

Specific Questions 

Preservation of and Access to Pre-1972 

Sound Recordings 

The following questions are meant to 

elicit information about how Federal 

protection of pre-1972 sound recordings 

will affect preservation and public 

access. 

Preservation 

1. Do libraries and archives, which are 

beneficiaries of the limitations on 

exclusive rights in section 108 of the 

Copyright Act, currently treat pre-1972 

sound recordings differently from those 

first fixed in 1972 or later (‘‘copyrighted 

sound recordings’’) for purposes of 

preservation activities? Do educational 

institutions, museums, and other 

cultural institutions that are not 

beneficiaries of section 108 treat pre1972 sound recordings any differently 

for these purposes? 

2. Would bringing pre-1972 sound 

recordings under Federal law—without 

amending the current exceptions—affect 

preservation efforts with respect to 

those recordings? Would it improve the 

ability of libraries and archives to 

preserve these works; and if so, in what 

way? Would it improve the ability of 

educational institutions, museums, and 

other cultural institutions to preserve 

these works? 

Access 

3. Do libraries and archives currently 

treat pre-1972 sound recordings 

differently from copyrighted sound 

recordings for purposes of providing 

access to those works? Do educational 

institutions, museums, and other 

cultural institutions treat them any 

differently? 

4. Would bringing pre-1972 sound 

recordings under Federal law—without 

amending the current exceptions—affect 

the ability of such institutions to 

provide access to those recordings? 

Would it improve the ability of libraries 

and archives to make these works 

available to researchers and scholars; 

and if so, in what way? What about 

educational institutions, museums, and 

other cultural institutions? 

5. Currently one group of pre-1972 

recordings does have Federal copyright 

protection—those of foreign origin 

whose copyrights were restored by law. 

(See the discussion of the URAA above.) 

In order to be eligible for restoration, 

works have to meet several conditions, 

including: (1) They cannot be in the 

public domain in their home country 

through expiration of the term of 

protection on the date of restoration; (2) 

they have to be in the public domain in 

the United States due to noncompliance 

with formalities, lack of subject matter 

protection (as was the case for sound 

recordings) or lack of national 

eligibility; and (3) they have to meet 

national eligibility standards, i.e., the 

work has to be of foreign origin. 17 

U.S.C. 104A(h)(6). In determining 

whether a work was in the public 

domain in its home country at the time 

it became eligible for restoration, one 

has to know the term of protection in 

that country; in most countries, sound 

recordings are protected under a 

‘‘neighboring rights’’ regime which 

provides a 50-year term of protection. 

As a result, most foreign sound 

recordings first fixed prior to 1946 are 

not eligible for restoration. To be of 

foreign origin, a work has to have ‘‘at 

least one author or rightholder who was, 

at the time the work was created, a 

national or domiciliary of an eligible 

country, and if published, [must have 

been] first published in an eligible 

country and not published in the United 

States during the 30-day period 

following publication in such eligible 

country.’’ 17 U.S.C. 104A(h)(6)(D). 

Does the differing protection for this 

particular group of recordings lead to 

their broader use? Have you had any 

experience with trying to identify which 

pre-1972 sound recordings are (or may 

be) so protected? Please elaborate. 

6. Are pre-1972 sound recordings 

currently being treated differently from 

copyrighted sound recordings when use 

is sought for educational purposes, 

including use in connection with the 

distance education exceptions in 17 

U.S.C. 110(2)? Would bringing pre-1972 

sound recordings under Federal law 

affect the ability to make these works 

available for educational purposes; and 

if so, in what way? 

7. Do libraries and archives make 

published and unpublished recordings 

available on different terms? What about 

educational institutions, museums, and 

other cultural institutions? Are 

unpublished works protected by State 

common law copyright treated 

differently from unpublished works 

protected by Federal copyright law? 

Would bringing pre-1972 sound 

recordings under Federal law affect the 

ability to provide access to unpublished 

pre-1972 sound recordings? 

Economic Impact 

Likely economic impact is an 

important consideration in determining 

whether pre-1972 sound recordings 

should be brought under Federal law, 

and how that change might be 

accomplished. The questions below are 

intended to elicit information regarding 


jlentini on DSKJ8SOYB1PROD with NOTICES
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3The types of works that can qualify as 

commissioned works for hire include: A 

contribution to a collective work, a part of a motion 

picture or other audiovisual work, a translation, a 

supplementary work, a compilation, an 

instructional text, a test, answer material for a test, 

or an atlas. 17 U.S.C. 101(2). 

what revenue expectations copyright 

owners have with respect to pre-1972 

sound recordings, and how these 

expectations would be affected by 

bringing these recordings under Federal 

protection. These questions are also 

intended to elicit information 

concerning the determination of 

ownership in such recordings. 

Value of the Recordings 

8. Are there commercially valuable 

sound recordings first fixed before 1923 

(e.g., that would be in the public 

domain if the ordinary Federal term of 

protection applied) that would be 

adversely affected? Please describe these 

recordings, including whether or not 

they are currently under commercial 

exploitation (and if not, why not) and 

elaborate on the nature and extent of 

their commercial value. 

9. Are there commercially valuable 

sound recordings first fixed from 1923– 

1940 that would be adversely affected? 

Please describe these recordings, 

including whether or not they are 

currently under commercial 

exploitation (and if not, why not) and 

elaborate on the nature and extent of 

their commercial value. 

10. With regard to commercial 

recordings first fixed after 1940: What is 

the likely commercial impact of 

bringing these works under Federal 

copyright law? 

11. Would there be any negative 

economic impact of such a change, e.g., 

in the scope of rights, or the certainty 

and enforceability of protection? 

12. Would there be any positive 

economic impact of such a change, e.g., 

in the scope of rights, or the certainty 

and enforceability of protection? 

13. What would be the economic 

impact of bringing pre-1972 sound 

recordings into the section 114 statutory 

licensing mechanism applicable to 

certain digital transmissions of sound 

recordings? Would there be other 

advantages or disadvantages in bringing 

pre-1972 sound recordings within the 

scope of the section 114 statutory 

license? 

14. Does the uncertainty of different 

regimes under State law make it less 

practical for rights holders to bring suit 

under State law? Are you aware of any 

infringement suits concerning pre-1972 

sound recordings brought in the past 10 

years? 

15. Would business arrangements 

concerning sampling of sound 

recordings be affected by bringing pre1972 recordings under Federal law; and 

if so, how would they be affected? Are 

pre-1972 sound recordings currently 

treated differently with respect to 

sampling? 

Ownership of Rights in the Recordings 

It is worthwhile to explore State law 

principles applicable to authorship and 

ownership of rights in sound recordings 

to determine whether there would be 

any tension with Federal copyright law 

principles. 

16. Under Federal law the owner of 

the sound recording will generally be, in 

the first instance, the performer(s) 

whose performance is recorded, the 

producer of the recording, or both. Do 

State laws attribute ownership 

differently? If so, might that lead to 

complications? 

17. Under Federal law, some 

copyrighted sound recordings qualify as 

works made for hire, either because (1) 

they are works prepared by employees 

in the scope of their employment, or (2) 

they were specially ordered or 

commissioned, if the parties agree in 

writing that the works will be works 

made for hire, and the works fall within 

one of nine specific categories of works 

eligible to be commissioned works made 

for hire. 17 U.S.C. 101.3 If a work 

qualifies as a work made for hire, it is 

the employer or commissioning party 

who is the legal author and initial rights 

holder, rather than the individual 

creator of the work. Prior to the January 

1, 1978, the courts recognized the work 

for hire doctrine with respect to works 

created by employees in the course of 

their employment, and particularly from 

the mid-1960s on, they recognized 

commissioned works made for hire, 

under such standards as whether the 

work was created at the hiring party’s 

‘‘instance and expense’’ or whether the 

hiring party had the ‘‘right to control’’ or 

exercised ‘‘actual control’’ over the 

creation of the work. 

To what extent does State law 

recognize the work made for hire 

doctrine with respect to sound 

recordings? To what extent does State 

law recognize commissioned works for 

hire, and under what standard? Have 

State laws in this respect changed over 

time? Is there any likelihood that, if 

Federal standards were applied, 

ownership of pre-1972 sound recordings 

would be attributed differently? Is there 

any reason to believe that, if pre-1972 

sound recordings were to become 

protected under Federal copyright law, 

their ownership would then become 

subject to Federal work-made-for-hire 

standards? 

18. Under Federal copyright law, 

ownership of rights is distinct from 

ownership of the material object in 

which the copyrighted work is 

embodied. Transferring ownership of 

such an object, including the ‘‘original,’’ 

i.e., the copy or phonorecord in which 

the copyrighted work was first fixed, 

does not convey rights in the copyright. 

17 U.S.C. 202. A transfer of copyright 

ownership must be made in a writing 

signed by the owner of the rights or her 

authorized agent. Id. 204. 

Some State laws provide (or for a 

period of time provided) that 

transferring the original copy of a work 

could operate as a transfer of copyright 

ownership, unless the rights holder 

specifically reserved the copyright 

rights. To what extent have these State 

law principles been applied with 

respect to ‘‘master recordings’’? How if at 

all would they affect who would own 

the Federal statutory rights, if pre-1972 

sound recordings were brought under 

Federal law? 

19. If pre-1972 sound recordings were 

to be given protection under the Federal 

copyright statute, how would or should 

copyright ownership of such recordings 

be determined? Has the issue arisen 

with respect to pre-1978 unpublished 

works that received Federal statutory 

copyrights when the Copyright Act of 

1976 came into effect? 

20. What other considerations are 

relevant in assessing the economic 

impact of bringing pre-1972 sound 

recordings under Federal protection? 

Term of Protection and Related 

Constitutional Considerations 

Term of Protection 

21. If pre-1972 sound recordings are 

brought under Federal copyright law, 

should the basic term of protection be 

the same as for other works—i.e., for the 

life of the author plus 70 years or, in the 

case of anonymous and pseudonymous 

works and works made for hire, for a 

term of 95 years from the year of its first 

publication, or a term of 120 years from 

the year of its creation, whichever 

expires first? Can different treatment for 

pre-1972 sound recordings be justified? 

22. Currently, States are permitted to 

protect pre-1972 sound recordings until 

February 15, 2067. If these recordings 

were incorporated into Federal 

copyright law and the ordinary statutory 

terms applied, then all works fixed prior 

to 1923 would immediately go into the 

public domain. Most pre-1972 sound 

recordings, including all published, 

commercial recordings, would 

experience a shorter term of protection. 

However, as the date of the recording 

approaches 1972, the terms under 


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices 67781 

Federal and State law become 

increasingly similar. For example, a 

sound recording published in 1940 

would be protected until the end of 

2035 instead of February 15, 2067; one 

published in 1970 would be protected 

until the end of 2065 instead of 

February 15, 2067. In the case of one 

category of works—unpublished sound 

recordings whose term is measured by 

the life of author—there would actually 

be an extension of term if the author 

died after 1997. For example, if the 

author of an unpublished pre-1972 

sound recording died in 2010, that 

sound recording would be protected 

under Federal law until the end of 2080. 

In the 1976 Copyright Act, Congress 

made all unpublished works being 

brought under Federal law subject to the 

ordinary statutory term that the 1976 

Act provided for copyrighted works: life 

of the author plus 50 years (later 

extended by the CTEA to life of the 

author plus 70 years). However, 

Congress was concerned that for some 

works, applying the ordinary statutory 

copyright terms would mean that 

copyright protection would have 

expired by the effective date of the 1976 

Copyright Act, or would expire soon 

thereafter. Congress decided that 

removing subsisting common law rights 

and substituting statutory rights for a 

‘‘reasonable period’’ would be ‘‘fully in 

harmony with the constitutional 

requirements of due process.’’ H.R. Rep. 

No. 94-1476, at 138–39 (1976). 

Accordingly, the 1976 Copyright Act 

included a provision that gave all 

unpublished works, no matter how old, 

a minimum period of protection of 25 

years, until December 31, 2002. 17 

U.S.C. 303. If those works were 

published by that date, they would get 

an additional term of protection of 25 

years, to December 31, 2027 (later 

extended by the CTEA to 2047). 

If pre-1972 sound recordings were 

brought under Federal copyright law, 

should a similar provision be made for 

those recordings that otherwise would 

have little or no opportunity for Federal 

copyright protection? If so, what would 

be a ‘‘reasonable period’’ in this context, 

and why? If not, would the legislation 

encounter constitutional problems (e.g., 

due process, or Takings Clause issues)? 

Increasing the Availability of Pre-1972 

Sound Recordings 

23. If the requirements of due process 

make necessary some minimum period 

of protection, are there exceptions that 

might be adopted to make those 

recordings that have no commercial 

value available for use sooner? For 

example, would it be worthwhile to 

consider amending 17 U.S.C. 108(h) to 

allow broader use on the terms of that 

provision throughout any such 

‘‘minimum period?’’ Do libraries and 

archives rely on this provision to make 

older copyrighted works available? If 

not, why not? 

24. Are there other ways to enhance 

the ability to use pre-1972 sound 

recordings during any minimum term, 

should one be deemed necessary? 

25. How might rights holders be 

encouraged to make existing recordings 

available on the market? Would a 

provision like that in section 303—an 

extended period of protection 

contingent upon publication—be likely 

to encourage rights holders to make 

these works publicly available? 

Partial Incorporation 

26. The possibility of bringing pre1972 sound recordings under Federal 

law only for limited purposes has been 

raised. For example, some stakeholders 

seek to ensure that whether or not pre1972 sound recordings receive Federal 

copyright protection, they are in any 

event subject to the fair use doctrine and 

the library and archives exceptions 

found in sections 107 and 108, 

respectively, of the Copyright Act. 

Others would like to subject pre-1972 

sound recordings to the section 114 

statutory license, but otherwise keep 

them within the protection of State law 

rather than Federal copyright law. 

Is it legally possible to bring sound 

recordings under Federal law for such 

limited purposes? For example, can 

(and should) there be a Federal 

exception (such as fair use) without an 

underlying Federal right? Can (and 

should) works that do not enjoy Federal 

statutory copyright protection 

nevertheless be subject to statutory 

licensing under the Federal copyright 

law? What would be the advantages or 

disadvantages of such proposals? 

Miscellaneous Questions 

27. Could the incorporation of pre1972 sound recordings potentially affect 

in any way the rights in the underlying 

works (such as musical works); and if 

so, in what way? 

28. What other uses of pre-1972 

recordings, besides preservation and 

access activities by libraries and other 

cultural institutions, might be affected 

by a change from State to Federal 

protection? For example, to what extent 

are people currently engaging in 

commercial or noncommercial use or 

exploitation of pre-1972 sound 

recordings, without authorization from 

the rights holder, in reliance on the 

current status of protection under State 

law? If so, in what way? Would 

protecting pre-1972 sound recordings 

under Federal law affect the ability to 

engage in such activities? 

29. To the extent not addressed in 

response to the preceding question, to 

what extent are people currently 

refraining from making use, commercial 

or noncommercial, of pre-1972 sound 

recordings in view of the current status 

of protection under State law; and if so, 

in what way? 

30. Are there other factors relevant to 

a determination of whether pre-1972 

sound recordings should be brought 

under Federal law, and how that could 

be accomplished? 

Dated: October 29, 2010. 

David O. Carson, 

General Counsel. 

[FR Doc. 2010–27775 Filed 11–2–10; 8:45 am] 

BILLING CODE P 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

Records Schedules; Availability and 

Request for Comments 

AGENCY: National Archives and Records 

Administration (NARA). 

ACTION: Notice of availability of 

proposed records schedules; request for 

comments. 

SUMMARY: The National Archives and 

Records Administration (NARA) 

publishes notice at least once monthly 

of certain Federal agency requests for 

records disposition authority (records 

schedules). Once approved by NARA, 

records schedules provide mandatory 

instructions on what happens to records 

when no longer needed for current 

Government business. They authorize 

the preservation of records of 

continuing value in the National 

Archives of the United States and the 

destruction, after a specified period, of 

records lacking administrative, legal, 

research, or other value. Notice is 

published for records schedules in 

which agencies propose to destroy 

records not previously authorized for 

disposal or reduce the retention period 

of records already authorized for 

disposal. NARA invites public 

comments on such records schedules, as 

required by 44 U.S.C. 3303a(a). 

DATES: Requests for copies must be 

received in writing on or before 

December 3, 2010. Once the appraisal of 

the records is completed, NARA will 

send a copy of the schedule. NARA staff 

usually prepare appraisal 

memorandums that contain additional 

information concerning the records 

covered by a proposed schedule. These, 

too, may be requested and will be 


jlentini on DSKJ8SOYB1PROD with NOTICES
appendix b	 Supplemental Public Notice
Federal Register / Vol. 75, No. 230 / Wednesday, December 1, 2010 / Notices 74749 

Permanent Membership 

Chair—Deputy Secretary—Seth D. 

Harris 

Vice-Chair—Assistant Secretary for 

Administration and Management—T. 

Michael Kerr 

Executive Secretary—Director, 

Executive Resources—Crystal Scott 

Alternate Vice-Chair—Director, Human 

Resources Center—Eugenio (Gene) 

Ochoa Sexton 

Rotating Membership 

ASP Kathleen E. Franks, Director, 

Office of Regulatory and 

Programmatic Policy—appointment 

expires on 09/30/12 

BLS John M. Galvin, Associate 

Commissioner, Office of Employment 

and Unemployment Statistics— 

appointment expires on 09/30/2013 

EBSA Sharon S. Watson, Director, 

Office of Participant Assistance— 

appointment expires on 9/30/12 

EBSA Jonathan Kay, Regional 

Administrator (New York)— 

appointment expires on 9/30/13 

ETA Grace A. Kilbane, Administrator, 

Office of Workforce Investment— 

appointment expires on 09/30/11 

ILAB Marcia M. Eugenio, Director, 

Office of Child Labor, Forced Labor 

Human Trafficking—appointment 

expires on 09/30/12 

MSHA Maureen Walsh, Director, 

Administration and Management— 

appointment expires on 09/30/12 

OASAM Charlotte A. Hayes, Deputy 

Assistant Secretary for Policy— 

appointment expires on 09/30/12 

OASAM Milton A. Stewart, Director, 

Business Operations Center— 

appointment expires on 09/30/12 

OASAM Ramon Suris-Fernandez, 

Director, Civil Rights Center— 

appointment expires on 09/30/11 

OCFO Karen Tekleberhan, Deputy 

Chief Financial Officer—appointment 

expires on 09/30/2013 

OFCCP Sandra S. Zeigler, Regional 

Director (Chicago)—appointment 

expires on 9/30/12 

OLMS Stephen J. Willertz, Director, 

Office of Enforcement and 

International Union Audits— 

appointment expires on 09/30/2012 

OWCP Rachel P. Leiton, Director, 

Energy Employees’ Occupational 

Illness Compensation—appointment 

expires on 09/30/11 

SOL Katherine E. Bissell, Associate 

Solicitor for Civil Rights and Labor 

Management—appointment expires 

on 09/30/11 

SOL Michael D. Felsen, Regional 

Solicitor, Boston—appointment 

expires on 09/30/12 

SOL Deborah Greenfield, Deputy 

Solicitor—appointment expires on 

9/30/12 

SOL Jeffrey L. Nesvet, Associate 

Solicitor for Federal Employees’ and 

Energy Workers’ Compensation— 

appointment expires on 09/30/13 

VETS Ismael Ortiz, Jr., Deputy 

Assistant Secretary—appointment 

expires on 9/30/12 

WHD Cynthia C Watson, Regional 

Administrator (Dallas)—appointment 

expires on 09/30/13 

FOR FURTHER INFORMATION CONTACT: Ms. 

Crystal Scott, Director, Office of 

Executive Resources, Room C5508, U.S. 

Department of Labor, Frances Perkins 

Building, 200 Constitution Ave., NW., 

Washington, DC 20210, telephone: (202) 

693–7628. 

Signed at Washington, DC, on 24th day of 

November 2010. 

Hilda L. Solis, 

Secretary of Labor. 

[FR Doc. 2010–30210 Filed 11–30–10; 8:45 am] 

BILLING CODE 4510–23–P 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. 2010–4] 

Federal Copyright Protection of Sound 

Recordings Fixed Before February 15, 

1972 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of inquiry: Extension of 

comment period; extension of reply 

comment period. 

SUMMARY: The Copyright Office of the 

Library of Congress is extending the 

time in which comments and reply 

comments can be filed in response to its 

Notice of Inquiry requesting public 

input on the desirability and means of 

bringing sound recordings fixed before 

February 15, 1972, under Federal 

jurisdiction. 

DATES: Initial written comments must be 

received in the Office of the General 

Counsel of the Copyright Office no later 

than January 31, 2011. Reply comments 

must be received in the Office of the 

General Counsel of the Copyright Office 

no later than March 2, 2011. 

ADDRESSES: The Copyright Office 

strongly prefers that comments be 

submitted electronically. A comment 

page containing a comment form is 

posted on the Copyright Office Web site 

at http://www.copyright.gov/docs/ 

sound/comments/comment-submissionindex.html. The Web site interface 

requires submitters to complete a form 

specifying name and organization, as 

applicable, and to upload comments as 

an attachment via a browse button. To 

meet accessibility standards, each 

comment must be uploaded in a single 

file in either the Adobe Portable 

Document File (PDF) format that 

contains searchable, accessible text (not 

an image); Microsoft Word; 

WordPerfect; Rich Text Format (RTF); or 

ASCII text file format (not a scanned 

document). The maximum file size is 

6 megabytes (MB). The name of the 

submitter and organization should 

appear on both the form and the face of 

the comments. All comments will be 

posted on the Copyright Office Web site, 

along with names and organizations. 

If electronic submission of comments 

is not feasible, comments may be 

delivered in hard copy. If hand 

delivered by a private party, an original 

and five copies of a comment or reply 

comment should be brought to the 

Library of Congress, U.S. Copyright 

Office, Room LM–401, James Madison 

Building, 101 Independence Ave., SE., 

Washington, DC 20559, between 

8:30 a.m. and 5 p.m. The envelope 

should be addressed as follows: Office 

of the General Counsel, U.S. Copyright 

Office. 

If delivered by a commercial courier, 

an original and five copies of a comment 

or reply comment must be delivered to 

the Congressional Courier Acceptance 

Site (‘‘CCAS’’) located at 2nd and D 

Streets, SE., Washington, DC between 

8:30 a.m. and 4 p.m. The envelope 

should be addressed as follows: Office 

of the General Counsel, U.S. Copyright 

Office, LM–403, James Madison 

Building, 101 Independence Avenue, 

SE., Washington, DC 20559. Please note 

that CCAS will not accept delivery by 

means of overnight delivery services 

such as Federal Express, United Parcel 

Service or DHL. 

If sent by mail (including overnight 

delivery using U.S. Postal Service 

Express Mail), an original and five 

copies of a comment or reply comment 

should be addressed to U.S. Copyright 

Office, Copyright GC/I&R, P.O. Box 

70400, Washington, DC 20024. 

FOR FURTHER INFORMATION CONTACT: 

David O. Carson, General Counsel, or 

Chris Weston, Attorney Advisor. 

Copyright GC/I&R, P.O. Box 70400, 

Washington, DC 20024. Telephone: 

(202) 707–8380. Telefax: (202) 707– 

8366. 

SUPPLEMENTARY INFORMATION: To assist 

in the preparation of its study on federal 

protection for pre-1972 sound 

recordings, the Office published a 

Notice of Inquiry seeking comments on 

many detailed questions regarding 

various aspects of the study. See 75 FR 

67777 (November 3, 2010). Initial 


jlentini on DSKJ8SOYB1PROD with NOTICES
74750 Federal Register / Vol. 75, No. 230 / Wednesday, December 1, 2010 / Notices 

1SGI is a form of sensitive, unclassified, securityrelated information that the Commission has the 

authority to designate and protect under Section 

147 of the AEA. 

comments were due to be filed by 

December 20, 2010; reply comments 

were due to be filed by January 19, 

2011. 

The Copyright Office has received a 

request from the Recording Industry 

Association of America to extend the 

comment period to January 31, 2011, in 

order to allow sufficient time to gather 

relevant information from its member 

companies and to provide the Office 

with comprehensive comments. Given 

the need for more factual data regarding 

pre-1972 sound recordings, and the 

complexity of the issues raised by the 

Notice of Inquiry, the Office has decided 

to extend the deadline for filing 

comments by a period of 42 days, 

making initial comments due by January 

31, 2011. The period for filing reply 

comments will be similarly extended, 

making reply comments due by March 

2, 2011. 

Dated: November 24, 2010. 

David O. Carson, 

General Counsel. 

[FR Doc. 2010–30213 Filed 11–30–10; 8:45 am] 

BILLING CODE 1410–30–P 

NUCLEAR REGULATORY 

COMMISSION 

[EA–10–152; Project No. 52–0001; NRC– 

2010–0368] 

In the Matter of Toshiba America 

Nuclear Energy Corporation and All 

Other Persons Who Seek or Obtain 

Access to Safeguards Information 

Described Herein; Order Imposing 

Safeguards Information Protection 

Requirements for Access to 

Safeguards Information (Effective 

Immediately) 

I 

On June 12, 2009, the U.S. Nuclear 

Regulatory Commission (the 

Commission or NRC) published a 

rulemaking in the Federal Register (74 

FR 28112), that requires applicants for 

a variety of licensing activities, 

including nuclear power plant 

designers, to perform a design-specific 

assessment of the effects of a large, 

commercial aircraft impact and to 

incorporate design features and 

functional capabilities into the nuclear 

power plant design to provide 

additional inherent protection with 

reduced operator actions. Section V of 

the Federal Register notice contains 

specific requirements for applicants for 

new nuclear power reactors. To assist 

designers in completing this assessment, 

the Commission has decided to provide 

the detailed aircraft impact 

characteristics that reactor vendors and 

architect/engineers who have the need 

to know and who meet the NRC’s 

requirements for the disclosure of such 

information should use as reasonable 

input in studies of the inherent 

capabilities of their designs. 

The NRC derived these characteristics 

from agency analyses performed on 

operating reactors to support, in part, 

the development of a broadly effective 

set of mitigation strategies to combat 

fires and explosions from a spectrum of 

hypothetical aircraft impacts. Although 

the NRC did not select these detailed 

characteristics as a basis for designing 

new reactors, the staff is suggesting that 

designers use them as a starting point 

for aircraft impact assessments. As 

stated in the rulemaking, the 

Commission will specify, in a 

safeguards information (SGI) guidance 

document, the detailed aircraft impact 

characteristics that should be used in a 

required assessment of the new reactor 

designs. The agency is working to 

finalize the form and values of those 

detailed characteristics. On July 10, 

2009, the NRC issued Draft Regulatory 

Guide (DG)–1176, ‘‘Guidance for the 

Assessment of Beyond-Design-Basis 

Aircraft Impacts,’’ to assist applicants in 

the completion of the assessment. The 

agency did not receive any comments 

on DG–1176. The staff is currently 

finalizing the regulatory guide. In 

addition, the staff recognizes that no 

national or international consensus has 

been reached on the selection of 

appropriate characteristics for such 

analyses. Therefore, applicants should 

consider the information preliminary 

and subject to authorized stakeholder 

comment. The detailed aircraft 

characteristics that are the subject of 

this Order are hereby designated as 

SGI,1 in accordance with Section 147 of 

the Atomic Energy Act of 1954, as 

amended (AEA). 

On October 24, 2008, the NRC revised 

Title 10 of the Code of Federal 

Regulations (10 CFR) Part 73, § 73.21, 

‘‘Protection of Safeguards Information: 

Performance Requirements,’’ to include 

applicants in the list of entities required 

to protect SGI (73 FR 63546). The NRC 

is issuing this Order to Toshiba America 

Nuclear Energy Corporation (TANE) to 

impose requirements for the protection 

of SGI in addition to the requirements 

in the revised 10 CFR 73.21. These 

additional requirements include 

nomination of a reviewing official, 

restrictions on the storage of SGI, and 

access to SGI by certain individuals. 

To implement this Order, TANE must 

nominate an individual, known as the 

‘‘reviewing official,’’ who will review the 

results of the Federal Bureau of 

Investigation (FBI) criminal history 

records check to make SGI access 

determinations. The reviewing official 

must be someone who seeks access to 

SGI. Based on the results of the FBI 

criminal history records check, the NRC 

staff will determine whether this 

individual may have access to SGI. If 

the NRC determines that the individual 

may not be granted access to SGI, the 

enclosed Order prohibits that individual 

from obtaining access to any SGI. Once 

the NRC determines that the nominated 

individual may have access to SGI, and 

after TANE has completed the 

background check on the reviewing 

official and has determined that he or 

she is trustworthy and reliable, and has 

approved the individual as the 

reviewing official, that reviewing 

official, and only that reviewing official, 

can make SGI access determinations for 

other individuals who have been 

identified by TANE as having a need to 

know SGI and who have been 

fingerprinted and have had a criminal 

history records check in accordance 

with this Order. The reviewing official 

can only make SGI access 

determinations for other individuals; he 

or she cannot approve other individuals 

to act as reviewing officials. If TANE 

wishes to nominate a new or additional 

reviewing official, the NRC must first 

determine whether that individual may 

have access to SGI before he or she can 

act in the capacity of a reviewing 

official. 

The regulations at 10 CFR 73.59, 

‘‘Relief from Fingerprinting, 

Identification and Criminal History 

Records Checks and Other Elements of 

Background Checks for Designated 

Categories of Individuals,’’ relieve 

certain categories of individuals from 

fingerprinting requirements. Those 

individuals include: (1) Federal, State, 

and local law enforcement personnel, 

(2) Agreement State inspectors who 

conduct security inspections on behalf 

of the NRC, (3) members of Congress, 

(4) employees of members of Congress 

or congressional committees who have 

undergone fingerprinting for a prior U.S. 

Government criminal history check, and 

(5) certain representatives of the 

International Atomic Energy Agency or 

certain foreign government 

organizations. In addition, the NRC has 

determined that individuals who have 

had a Favorably-decided U.S. 

Government criminal history check 

within the last 5 years or individuals 


jlentini on DSKJ8SOYB1PROD with NOTICES
appendix c Notice of Public Meeting
Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices 26769 

Department of Justice, Washington, DC 

20044–7611 or by faxing or e-mailing a 

request to Tonia Fleetwood 

(tonia.fleetwood@usdoj.gov), fax no. 

(202) 514–0097, phone confirmation 

number (202) 514–1547. In requesting a 

copy from the Consent Decree Library, 

please enclose a check in the amount of 

$32 for complete Consent Decree or 

$15.75 for the Consent Decree without 

the appendices (25 cents per page 

reproduction cost) payable to the U.S. 

Treasury or, if by e-mail or fax, forward 

a check in that amount to the Consent 

Decree Library at the stated address. 

Robert E. Maher, Jr., 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 2011–11174 Filed 5–6–11; 8:45 am] 

BILLING CODE 4410–15–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Workforce Investment Act of 1998 

(WIA); Notice of Incentive Funding 

Availability Based on Program Year 

(PY) 2009 Performance 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice. 

SUMMARY: The Department of Labor, in 

collaboration with the Department of 

Education, announces that four states 

are eligible to apply for Workforce 

Investment Act (WIA) (Pub. L. 105–220, 

29 U.S.C. 2801 et seq.) incentive grant 

awards authorized by section 503 of the 

WIA. 

DATES: The four eligible states must 

submit their applications for incentive 

funding to the Department of Labor by 

June 23, 2011. 

ADDRESSES: Submit applications to the 

Employment and Training 

Administration, Office of Policy 

Development and Research, Division of 

Strategic Planning and Performance, 200 

Constitution Avenue, NW., Room N– 

5641, Washington, DC 20210, Attention: 

Karen Staha and Luke Murren, 

Telephone number: 202–693–3733 (this 

is not a toll-free number). Fax: 202–693– 

2766. E-mail: staha.karen@dol.gov and 

murren.luke@dol.gov. Information may 

also be found at the ETA Performance 

Web site: http://www.doleta.gov/ 

performance. 

SUPPLEMENTARY INFORMATION: Four 

states (see Appendix) qualify to receive 

a share of the $10.2 million available for 

incentive grant awards under WIA 

section 503. These funds, which were 

contributed by the Department of 

Education from appropriations for the 

Adult Education and Family Literacy 

Act (AEFLA), are available for the 

eligible states to use through June 30, 

2013, to support innovative workforce 

development and education activities 

that are authorized under title IB 

(Workforce Investment Systems) or Title 

II (AEFLA) of WIA, or under the Carl D. 

Perkins Career and Technical Education 

Act of 2006 (Perkins IV), 20 U.S.C. 2301 

et seq., as amended by Public Law 109– 

270. In order to qualify for a grant 

award, a state must have exceeded its 

performance levels for WIA title IB and 

adult education (AEFLA). (Due to the 

lack of availability of PY 2009 

performance data under the Carl D. 

Perkins Vocational and Technical 

Education Act of 1998 (Perkins III), the 

Department of Labor and the 

Department of Education did not 

consider states’ performance levels 

under the Perkins Act in determining 

incentive grants eligibility.) The goals 

included employment after training and 

related services, retention in 

employment, and improvements in 

literacy levels, among other measures. 

After review of the performance data 

submitted by states to the Department of 

Labor and to the Department of 

Education, each Department determined 

for its program(s) which states exceeded 

their performance levels (the Appendix 

at the bottom of this notice lists the 

eligibility of each state by program). 

These lists were compared, and states 

that exceeded their performance levels 

for both programs are eligible to apply 

for and receive an incentive grant 

award. The amount that each state is 

eligible to receive was determined by 

the Department of Labor and the 

Department of Education, based on the 

provisions in WIA section 503(c) (20 

U.S.C. 9273(c)), and is proportional to 

the total funding received by these 

states for WIA Title IB and AEFLA 

programs. 

The states eligible to apply for 

incentive grant awards and the amounts 

they are eligible to receive are listed in 

the following chart: 

State Amount of 

award 

1. Arizona ............................. $3,000,000 

2. Minnesota ......................... 3,000,000 

3. North Dakota .................... 1,210,964 

4. Texas ................................ 3,000,000 

Dated: May 2, 2011. 

Jane Oates, 

Assistant Secretary for Employment and 

Training. 

[FR Doc. 2011–11191 Filed 5–6–11; 8:45 am] 

BILLING CODE 4510–FN–P 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. 2010–4] 

Federal Copyright Protection of Sound 

Recordings Fixed Before February 15, 

1972 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of public meeting. 

SUMMARY: The Copyright Office will 

host a public meeting to discuss the 

desirability and means of bringing 

sound recordings fixed before February 

15, 1972 under Federal jurisdiction. The 

meeting will provide a forum, in the 

form of a roundtable discussion, for 

interested parties to address the legal, 

policy, and factual questions raised so 

far regarding pre-1972 sound recordings. 

It will take place on June 2 and 3, 2011 

at the Copyright Office in Washington, 

DC. In order to participate in the 

meeting, interested parties should 

submit a request via the Copyright 

Office Web site. 

DATES: The public meeting will take 

place on Thursday, June 2, 2011 from 9 

a.m. to 5 p.m. and Friday, June 3, 2011 

from 9 a.m. to 1:30 p.m. Requests for 

participation must be received in the 

Office of the General Counsel of the 

Copyright Office no later than Monday, 

May 16, 2011 at 5 p.m. E.D.T. 

ADDRESSES: The public meeting will 

take place in the Copyright Office 

Hearing Room, Room LM–408 of the 

Madison Building of the Library of 

Congress, 101 Independence Ave., SE., 

Washington, DC. The Copyright Office 

strongly prefers that requests for 

participation be submitted 

electronically. A public meeting page 

containing a request form is posted on 

the Copyright Office Web site at http:// 

www.copyright.gov/docs/sound/. 

Persons who are unable to submit a 

request electronically should contact 

Attorney-Advisor Chris Weston at 202– 

707–8380. 

FOR FURTHER INFORMATION CONTACT: 

David O. Carson, General Counsel, or 

Chris Weston, Attorney-Advisor, 

Copyright GC/I&R, P.O. Box 70400, 

Washington, DC 20024. Telephone: 

(202) 707–8380. Telefax: (202) 707– 

8366. 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

26770 Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices 

SUPPLEMENTARY INFORMATION: 

Background 

Congress has directed the U.S. 

Copyright Office to conduct a study on 

the desirability and means of bringing 

sound recordings fixed before February 

15, 1972 under Federal jurisdiction. 

Currently, such sound recordings are 

protected under a patchwork of state 

statutory and common laws from their 

date of creation until 2067. The 

legislation mandating this study states 

that it is 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 is also to 

examine the means for accomplishing such 

coverage. 

H.R. 1105, Public Law 111–8 

[Legislative Text and Explanatory 

Statement] 1769. 

On November 3, 2010, the U.S. 

Copyright Office published a Notice of 

Inquiry seeking comments on the 

question of bringing pre-1972 sound 

recordings under Federal jurisdiction. 

75 FR 67777 (November 3, 2010). The 

notice provided background as to why 

state law protection of pre-1972 sound 

recordings has not been preempted, 

unlike state law protection of other 

kinds of potentially copyrightable 

works. It also discussed the belief of 

some in the library and archives 

community that the absence of a Federal 

protection scheme for sound recordings 

has impeded the preservation and 

public availability of these recordings. 

In an attempt to understand the various 

effects that federalizing protection for 

pre-1972 sound recordings might have, 

the notice posed 30 specific questions to 

commenters regarding preservation and 

access, economic impact, term of 

protection, constitutional 

considerations, and other aspects of 

federalization. 

The Copyright Office received 58 

comments in response to its inquiry, 

along with 231 copies of a form letter. 

The Office subsequently received 17 

reply comments. All comments, along 

with the notice of inquiry, are available 

at http://www.copyright.gov/docs/ 

sound/. The comments ran the gamut 

from general policy arguments to 

proposals for new legislative language 

and, as anticipated, illuminate a variety 

of experiences and perspectives. Some 

comments raised new legal questions, 

and others deepened the Office’s 

understanding of the number and 

variety of pre-1972 sound recordings at 

issue. The Copyright Office is holding a 

public meeting in order to permit 

interested parties to present their views 

and discuss areas of agreement and 

disagreement through a roundtable 

discussion. 

Requests for Participation 

The Office has divided up the topics 

it wishes to discuss into nine sessions— 

five on June 2, 2011 and four on June 

3, 2011—and briefly describes them 

below. These descriptions only note the 

major issues for each session and do not 

necessarily list every subject 

appropriate for discussion. 

Day 1, Session 1—Assessing the 

Landscape: What are the legal and 

cultural difficulties—as well as 

benefits—attributable to state law 

protection of pre-1972 sound 

recordings? 

Day 1, Session 2—Availability of Pre1972 Sound Recordings: What is the 

true extent of public availability of pre1972 sound recordings? In relation to 

the overall availability of such 

recordings, how significant are rightsholder reissue programs and recent 

donations to the Library of Congress? 

Day 1, Session 3—Effects of 

Federalization on Preservation, Access, 

and Value: What benefits would 

federalization have with respect to 

preservation of and public access to pre1972 sound recordings? Are those 

benefits quantifiable (i.e., in economic 

or cultural terms)? How would 

federalization affect the economic and 

cultural value of pre-1972 sound 

recordings? Are such effects 

quantifiable? 

Day 1, Session 4—Effects of 

Federalization on Ownership and 

Business Expectations: What effects 

would federalization have with respect 

to ownership status, publication status, 

contracts, termination rights, 

registration requirements, and other 

business aspects of pre-1972 sound 

recordings? To what extent would these 

results depend on the manner in which 

federalization might be effected? 

Day 1, Session 5—Effects of 

Federalization on Statutory Licensing: 

As a matter of logic, policy, and law, 

should pre-1972 sound recordings be 

eligible for the section 114 statutory 

license? Can and should they be subject 

to the section 114 statutory license if 

they are not otherwise brought into the 

Federal statutory scheme? 

Day 2, Session 1—Term of Protection: 

Assuming that copyright protection for 

pre-1972 sound recordings is 

federalized, what are the best options 

for the term of protection of federalized 

pre-1972 sound recordings? Should pre1923 recordings be considered 

separately? What about unpublished 

recordings? If federalized pre-1972 

sound recordings are given shorter 

terms than they had under state law, 

should term extensions be offered as an 

incentive to rights-holders who make 

their recordings publicly available 

within a specified period of time? 

Day 2, Session 2—Constitutional 

Considerations: Is it appropriate to grant 

Federal copyright protection to works 

already created, fixed, and in some 

cases published? Are there 

circumstances under which 

federalization of pre-1972 sound 

recordings would effect a ‘‘taking’’ under 

the Fifth Amendment? If so, how could 

this be addressed in the legislation? 

Day 2, Session 3—Alternatives to 

Federalization: What alternatives to 

federalization, if any, should be 

considered and why? 

Day 2, Session 4—Summing Up: In 

light of this public meeting and of the 

comments received, please sum up your 

views on (1) whether pre-1972 sound 

recordings should be brought within the 

protection of Federal copyright law and 

(2) in the case of federalization, what 

adaptations to existing law would be 

necessary or advisable. 

Requests to participate should be 

submitted online at http:// 

www.copyright.gov/docs/sound/. The 

online form asks for the requestor’s 

name, organization, title, postal mailing 

address, telephone number, fax number, 

and an e-mail address, although not all 

of the information is required. The 

requestor should also indicate, in order 

of preference, the sessions in which the 

requestor wishes to participate. 

Depending upon the level of interest, 

the Copyright Office may not be able to 

seat every participant in every session 

he or she requests, so it is helpful to 

know which topics are most important 

to each participant. In addition, please 

note that while an organization may 

bring multiple representatives, only one 

person per organization may participate 

in a particular session. A different 

person from the same organization may, 

of course, participate in another session. 

Requestors who have already 

submitted a comment, or who will be 

representing an organization that has 

submitted a comment, are asked to 

identify their comments on the request 

form. Requestors who have not 

submitted comments should include a 

brief summary of their views on the 

topics they wish to discuss, either 

directly on the request form or as an 

attachment. To meet accessibility 

standards, all attachments must be 

uploaded in either the Adobe Portable 

Document File (PDF) format that 

contains searchable, accessible text (not 

an image); Microsoft Word; 

WordPerfect; Rich Text Format (RTF); or 

ASCII text file format (not a scanned 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Notices 26771 

document). The name of the submitter 

and organization (if any) should appear 

on both the form and the face of any 

attachments. 

Nonparticipants who wish to attend 

and observe the discussion should note 

that seating is limited and, for 

nonparticipants, will be available on a 

first come, first served basis. 

Dated: May 4, 2011. 

Maria A. Pallante, 

Acting Register of Copyrights. 

[FR Doc. 2011–11224 Filed 5–6–11; 8:45 am] 

BILLING CODE 1410–30–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

[Notice (11–045)] 

NASA Advisory Council; Task Group 

of the Science Committee; Meeting 

AGENCY: National Aeronautics and 

Space Administration. 

ACTION: Notice of meeting. 

SUMMARY: In accordance with the 

Federal Advisory Committee Act, Public 

Law 92–463, as amended, the National 

Aeronautics and Space Administration 

(NASA) announces a meeting of the 

Task Group of the NASA Advisory 

Council (NAC) Science Committee. This 

Task Group reports to the Science 

Committee of the NAC. The Meeting 

will be held for the purpose of soliciting 

from the scientific community and other 

persons scientific and technical 

information relevant to program 

planning. 

DATES: Wednesday, May 25, 2 p.m. to 4 

p.m., Local Time. 

ADDRESSES: This meeting will take place 

telephonically and by WebEx. Any 

interested person may call the USA toll 

free conference call number 800–369– 

3194, pass code TAGAGMAY25, to 

participate in this meeting by telephone. 

The WebEx link is https:// 

nasa.webex.com/, meeting number 993 

198 285, and password tagag_May25. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Marian Norris, Science Mission 

Directorate, NASA Headquarters, 

Washington, DC 20546, (202) 358–4452, 

fax (202) 358–4118, or 

mnorris@nasa.gov. 

SUPPLEMENTARY INFORMATION: The 

agenda for the meeting includes the 

following topic: 

—Organizing Analysis Groups to Serve 

the Needs of More than One NASA 

Mission Directorate. 

It is imperative that the meeting be 

held on these dates to accommodate the 

scheduling priorities of the key 

participants. 

Dated: May 2, 2011. 

P. Diane Rausch, 

Advisory Committee Management Officer, 

National Aeronautics and Space 

Administration. 

[FR Doc. 2011–11163 Filed 5–6–11; 8:45 am] 

BILLING CODE 7510–13–P 

NUCLEAR REGULATORY 

COMMISSION 

[Docket Nos. 50–250 and 50–251; NRC– 

2011–0094] 

Florida Power & Light Company; 

Turkey Point, Units 3 and 4; Notice of 

Consideration of Issuance of 

Amendment to Facility Operating 

License, and Opportunity for a Hearing 

and Order Imposing Procedures for 

Document Access to Sensitive 

Unclassified Non-Safeguards 

Information 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Notice of license amendment 

request, opportunity to comment, 

opportunity to request a hearing, and 

Commission order. 

DATES: A request for a hearing must be 

filed by July 8, 2011. Any potential 

party as defined in Title 10 of the Code 

of Federal Regulations (10 CFR) 2.4 who 

believes access to Sensitive Unclassified 

Non-Safeguards Information (SUNSI) is 

necessary to respond to this notice must 

request document access by May 19, 

2011. 

ADDRESSES: Please include Docket ID 

NRC–2011–0094 in the subject line of 

your comments. Comments submitted in 

writing or in electronic form will be 

posted on the NRC Web site and on the 

Federal rulemaking Web site http:// 

www.regulations.gov. Because your 

comments will not be edited to remove 

any identifying or contact information, 

the NRC cautions you against including 

any information in your submission that 

you do not want to be publicly 

disclosed. 

The NRC requests that any party 

soliciting or aggregating comments 

received from other persons for 

submission to the NRC inform those 

persons that the NRC will not edit their 

comments to remove any identifying or 

contact information, and therefore, they 

should not include any information in 

their comments that they do not want 

publicly disclosed. 

You may submit comments by any of 

the following methods: 

• Federal Rulemaking Web site: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID 

NRC–2011–0094. Address questions 

about NRC dockets to Carol Gallagher 

301–492–3668; e-mail 

Carol.Gallagher@nrc.gov. 

You can access publicly available 

documents related to this notice using 

the following methods: 

• Mail comments to: Cindy Bladey, 

Chief, Rules, Announcements, and 

Directives Branch (RADB), Office of 

Administration, Mail Stop: TWB–05– 

B01M, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001. 

• NRC’s Public Document Room 

(PDR): The public may examine, and 

have copied for a fee, publicly available 

documents at the NRC’s PDR, Room O1– 

F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland 

20852. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): Publicly available documents 

created or received at the NRC are 

available online in the NRC’s Library at 

http://www.nrc.gov/reading-rm/ 

adams.html. From this page, the public 

can gain entry into ADAMS, which 

provides text and image files of NRC’s 

public documents. If you do not have 

access to ADAMS or if there are 

problems in accessing the documents 

located in ADAMS, contact the NRC’s 

PDR reference staff at 1–800–397–4209, 

301–415–4737, or by e-mail to 

pdr.resource@nrc.gov. The application 

for amendment, dated October 21, 2010, 

contains proprietary information and, 

accordingly, those portions are being 

withheld from public disclosure. A 

redacted version of the application for 

amendment, dated December 14, 2010, 

is available electronically under 

ADAMS Accession No. ML103560167. 

• Federal Rulemaking Web site: 

Public comments and supporting 

materials related to this notice can be 

found at http://www.regulations.gov by 

searching on Docket ID: NRC–2011– 

0094. 

FOR FURTHER INFORMATION CONTACT: 

Jason C. Paige, Project Manager, Plant 

Licensing Branch II–2, Division of 

Operating Reactor Licensing, Office of 

Nuclear Reactor Regulation, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555. Telephone: 

301–415–5888; fax number: 301–415– 

2102; e-mail: Jason.Paige@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The U.S. Nuclear Regulatory 

Commission (NRC or the Commission) 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

appendix d List of Parties Submitting Initial Comments
APPENDIX D: INITIAL COMMENTS 

Document Organization/Comment 

1 Michael Fitzgerald 

2 Bill Hebden

3 Courtney Chartier

4 Phil Gries

5 R. Fay

6 Susan Hoffius

7a Starr Gennett Foundation

7b David J. Fulton, Starr-Gennett Foundation

8 Aaron A. Fox

9 Al Schlachtmeyer

10 Alison Stankrauff

11 Tanya Merchant

12 Benjamin Irwin

13 Darren Walters

14 Jean Dickson

15 Zoe Waldron

16 Deborah Campana

17 Dale Cockrell

18 Jodi Allison-Bunnell

19 Michael Burch

20 Lynn Hooker

21 Cristobal Diaz Ayala

22 Cynthia Varady

23 Henry Sapoznik

24 Peggy Davis

25 Sherry L. Mayrent

26 Abigail O. Garnett

27 Brian Lee Corber

28 Doug Pomeroy
29 Mark Slobin

30 Demetrio Wazar

31 Geoff Canyon

32 Louis Zell

33 Julie King

34 Max Cantor

35 Nathan Lambson

36 Maurice Saylor

37 Robert C. Lancefield

38 Nicola Battista

39 Helen R. Tibbo, Society of American Archivists

40 Rachel Evangeline Barham

41 Thad E. Garrett

42 Tim Brooks, Association of Recorded Sound Collections

43 Winston Barham

44 Eric Harbeson, Music Library Association

45 K. Matthew Dames, Syracuse University 

46 Kenneth Crews

47 Lizabeth A. Wilson, University of Washington Libraries

48 Patrick Feaster

49 Patrick Loughney, Library of Congress

50 Randy Silverman & Alison Mower, University of Utah

51 Recording Industry Association of America and American Association of 

Independent Music

52 Stephanie M. Roach

53 Steven R. Englund, Sound Exchange, Inc.

54 Abigail Phillips, Electronic Freedom Foundation

55 Joel Brian Kellum - Comment 1 and Comment 2

56 Alex Cummings

57 Grooveshark form letter

58 Steven Smolian
appendix e List of Parties Submitting Reply Comments
APPENDIX E: REPLY COMMENTS 

Document Organization/Comment 

1 James A. Armstrong

2 Ivan Hoffman

3 Ryland Hawkins, Author Services, Inc. 

4 Eric N. Burns, Conversation in Black

5 Eric D. Leaner, VAPAC Music Publishing, Inc.

6 Helen R. Tibbo, Society of American Archivists

7 The Association of Research Libraries and the American Library Association

8 Eric Harbeson, The Music Library Association (MLA)

9 Tim Brooks, Association for Recorded Sound Collections

10 Patrick Loughney, The Library of Congress

11 Future of Music Coalition

12 David Oxenford & Jane Mago, National Association of Broadcasters

13 Elizabeth Townsend Gard & the 2011 Copyright Class at Tulane University Law 

School

14 Recording Industry Association of America and American Association of 

Independent Music

15 Bruce Rich & Cynthia Greer, Sirius XM Radio, Inc.

16 J. Gregg Gautereaux, Artist's Reprieve LLC

17 Joel Kellum
appendix f List of Meeting Participants
APPENDIX F: PUBLIC MEETING PARTICIPANTS 

Gil Aronow, Sony Music Entertainment 

Richard Bengloff, American Association of Independent Music 

Tim Brooks, Association for Recorded Sound Collections 

Sam Brylawski, Society for American Music 

Peggy Bulger, American Folklife Center, Library of Congress 

Brandon Butler, Association of Research Libraries 

Dwayne Buttler, University Libraries, University of Louisville 

Susan Chertkof, Recording Industry Assn of America 

Michael DeSanctis, SoundExchange, Inc. 

Elizabeth Townsend Gard, Tulane University Law School 

Eric Harbeson, Music Library Association 

Ivan Hoffman, attorney 

Adam Holofcener, Future of Music Coalition 

Tomas Lipinski, School of Library & Information Science, Indiana University 

Patrick Loughney, Library of Congress 

Steve Marks, Recording Industry Association of America 

David Oxenford, National Association of Broadcasters 

Jennifer Pariser, Recording Industry Association of America 

Jay Rosenthal, National Music Publishers Association 

Charles Sanders, Songwriters Guild of America 

Eric Schwartz, Recording Industry Association of America