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 


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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 


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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 


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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 


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