Federalization of Pre-1972 Sound Recordings:  A Debate about Uncertainty and Public Access

When most people think of their favorite song, they are likely envisioning a particular artist who recorded it with their unique style and voice, and not the writer.  While the song would be nothing without the words, that’s often not what connects the public to music… it’s the recording.  Think of “Heartbreak Hotel”: are you conjuring up visions of Elvis Presley twisting and gyrating, or of the lesser known writers of that song, Tommy Durden and Mae Boren Axton?

Federal copyright law did not include protection for sound recordings until 1972.  Any recording from before then is governed by an amalgamation of state laws.  These state laws cover a range of things, including knowing duplication and sale, misappropriation, and right of publicity.  As a result, we have a system where sound recordings are protected by either state or federal law depending on the date it was fixed.  Initially, state law protected copyrighted recordings indefinitely.  That meant pre-1972 recordings would never go into the public domain.  Luckily, in 1976 Congress set an expiration date (later extended to February 15, 2067).  I’ll be eagerly awaiting that day (assuming, I’m around to see it).

An added complexity is the fact that underlying works (musical composition and lyrics) have always been covered under federal law.  A song has only one underlying work but there can be multiple sound recordings, each with its own individual copyright.  Under the terms of federal law, underlying works from before 1923 are already in the public domain, but their recorded performance counterparts, covered by state law, are not.  That means the recognizable renditions of great American classics like “Give My Regards To Broadway” and “Danny Boy” are not available for public use and won’t be for a long time.

There has been little public access and use of pre-1972 sound recordings because of the convoluted nature of the laws.  This lack of clarity has impacted libraries and music archives who are trying to preserve this part of American culture and provide access to the public.  They are confused about what their legal rights are under the variety of state laws.  Therefore, early recordings that should be accessible for the public to listen to, learn from, and create new works, are not.

The list of known sound recordings from the pre-1972 era is long and includes Simon & Garfunkel, Bob Dylan, Jimi Hendrix, The Jackson 5, most Motown stars, and hundreds, if not thousands of other artists both world-famous and obscure.

The state of pre-1972 sound recording copyright protection has created two separate concerns: access and uncertainty regarding the laws.  Recognizing these challenges, Congress asked the Copyright office to look into fixing the problem.  The Copyright Office is conducting a study on the potential effects on preservation and access efforts as well as the economic interests of rights holders of bringing pre-1972 sound recordings under federal copyright laws.

Copyright Office recently held a meeting on federalizing Pre-1972 recordings

A few weeks ago, the U.S. Copyright Office held a public meeting on the desirability and options for providing federal copyright protection to pre-1972 sound recordings. The purpose of the meeting was to get input for its study.  The two-day panel discussion featured representatives of various libraries, music archives, and recording industry groups including the RIAA & American Association of Independent Music (A2IM), a trade organization representing several independent music labels.  Librarians largely favored full federalization while the RIAA supported keeping the state protection system intact. 

Libraries and archives are tasked with preserving early U.S. sound recordings but state copyright law presents challenges.

Under the current protection system, pre-1972 sound recordings are governed by a collection of state common law and statutory provisions.  Libraries face significant challenges in their preservation efforts because state copyright laws are unclear about what preservation activities libraries can pursue without risk of liability.  Preserving pre-1972 sound recordings may require archivists to make digital copies of copyrighted works.  Additionally, libraries are interested in providing access to these works but are uncertain about the availability of this option under state law.

Often, funders won't provide grants to support libraries' preservation efforts when there is uncertainty regarding the scope of activities they can pursue without violating state copyright law.  Institutions’ legal counsel tend to be risk-averse and generally prefer to have libraries err on the side of caution in the face of uncertainty about the law.  Unfortunately, this often means that when there is doubt there is no preservation.

Early sound recordings include a vast array of genres, including ragtime, jazz, and rhythm and blues, as well as classical and spoken word works.  Recordings of this era comprise a key component of American cultural and historical heritage, but they are at risk of being lost forever.  Many early recordings are deteriorating because they were fixed in fragile, inaccessible analog formats such as wire recordings, cylinders, and instantaneous lacquer discs. 

Modern digital sound technology presents a great opportunity to preserve and ensure continued availability of these recorded works.  Congress recognized the importance of this issue (passing the National Recording Preservation Act of 2000) and tasked the Library of Congress with establishing a National Recording Preservation Board, creating a National Recording Registry, and developing a national plan to preserve and expand access to sound recordings. Libraries are working to meet this mandate but the state of copyright law, especially with respect to pre-1972 recordings, presents a challenge.

For libraries, federal protection is the optimal solution because it would eliminate uncertainty and establish a uniform body of laws that governs all sound recording copyright. Federal law, unlike most state laws, includes explicit exceptions that accommodate the preservation and public access needs of libraries. Interpretation of fifty different systems of exceptions would be daunting for lawyers, much less non-legal professionals, who are often the ones that get tasked with this duty at many libraries and organizations.  Even university lawyers, who may be available to provide advice to libraries in their institutions, may not have the copyright expertise that is needed to navigate the patchwork system that governs pre-1972 sound recordings.

“Devil you know better than the one you don’t”: RIAA concerned with future uncertainty and impact on business model

This issue made strange allies of groups normally on opposing sides, like the RIAA and the National Association of Broadcasters (NAB).  They, along with other groups with a connection to the commercial music industry, were united in their opposition to federal copyright protection of pre-1972 recordings.  Opponents fear possible negative effects on record labels, artists, broadcasters, and publishers from federalization and see no need for change.  The meme repeated by these groups during the meeting was “don’t upset the apple cart.” 

The music industry’s business model depends on certainty and stability and any proposed changes to the existing protection scheme will create worries. Federalization could disrupt their businesses by creating doubt about rights ownership, scope of protection, and remedies.  Interestingly, most of their points focused on the consequences of change rather than making the case for why the state system was better or necessary.

While state law is acceptable to the music industry because it keeps things the same, it presents many of the same challenges to industry that libraries often face.  The variation in protection from state to state hinders the ability to have a consistent business approach regarding rights ownership. The scope of protection and what would constitute acceptable use have to be tested due to the lack of detailed precedent.  Additionally, state law does not have provisions that account for modern technology that circumvents copyright protections that are placed on recorded works.  Lastly, state law does not provide the recording industry with the option of statutory damages.   

Copyright Law Uncertainty:  Which side is better positioned to bear the burden?

Parties on both sides are concerned with the potential economic impact of operating in a world of uncertainty.  So, the Copyright Office started a brief discussion about which group could afford to operate despite uncertainty.  The RIAA and A2IM said they were the only ones that had invested the money to produce these materials and bring them to market, therefore they shouldn’t be the ones left with new burdens.  They stated that their industry was “under siege” currently and could not bear the burden of uncertainty.  Industry believes that because it has already invested by allowing for many of these historical works to even exist, they should not be asked to shoulder the burden of any potential harm to their business model or having to litigate any issues that might come up from a change in the protection system. 

Libraries disputed this argument and explained that through their efforts, taxpayers have made significant investment into preservation of recordings that they can only provide limited access to.  Libraries cannot take the risk of trying to preserve pre-1972 sound recordings without some level of certainty about how the law works to ensure they don’t face lawsuits.  Industry recognizes that it has something libraries want and seems more than willing to let them pay for much of the preservation work.  Libraries may be used to gauge the public interest in older music or preserve recordings that industry later releases for monetary gain (one great example is the  Thelonious Monk recording that was released for sale after it was found in a Library of Congress collection).  It seems likely that whatever decision is made, one group of stakeholders will bear some burden of uncertainty.  Hopefully, that cost doesn’t go to the public.

Federal copyright protection is far from perfect

The RIAA raised legitimate concerns about the impact of federal copyright law on preservation efforts.  Proponents often equate federalization with an improved system of exceptions and elimination of current ambiguities about copyright law.  Support for federalization is focused largely on acceptable exceptions for preservation and access with partial acceptance of the underlying provisions of a law.  One main challenge presented by the base federal provisions is the availability of extremely large statutory damages.  These automatic damage awards could hinder preservation efforts by exacerbating fears of liability.  Damage options may increase legal challenges of preservation and access efforts in the hopes of a quick payout.  Furthermore, the Section 108 library exemption also has limitations because it does not cover all preservation activities that archivists and libraries would like to conduct. 

Therefore, proponents are not asking for full and complete application of all current federal copyright law to pre-1972 sound recordings.  In actuality, they want extension of federal protection to come with tweaks to the law as it applies to all sound recordings.  This approach has challenges because it would require Congress to do more than simply preempt state law.  Proposed changes to the existing statute would require major legislative discussion to overhaul the copyright system.  While this may be a laudable goal, it is probably unachievable in the near future due to more pressing Congressional priorities and an impending Presidential election. Previous efforts to get changes to Section 108 exception in federal copyright law (read about the Library of Congress Section 108 study group) have not seen Congressional action.                                                        

Some alternative solutions to federalization

Although the meeting’s purpose was to get input from various stakeholders, the Copyright Office tried to find areas of compromise between the parties. That didn’t happen. Stakeholders stuck to their original positions throughout the discussion.  Still, there were some proposals for alternate solutions.

The American Research Library proposed two avenues for remaining under the state system.  Both proposals are aimed at establishing fair use and other exceptions under state law.  They are founded in the belief that fair use is a built-in First Amendment protection in copyright law.  Thus, states have to recognize fair use principles because state law cannot preempt constitutional provisions.

The first consideration involved drafting a model exception provision for state law reform that is based on existing federal copyright provision.  The goal would be to make state copyright law more uniform with respect to exceptions for preservation and fair use.  The other suggestion requires the Copyright Office to conduct a survey of the fifty state laws with a detailed analysis of fair use exceptions availability under state law. Federal law would then preempt any state interpretation that did not accommodate fair use.

While these proposals present viable alternatives and are worthy of further discussion, they do not seem likely to remove the uncertainty faced by library groups.  Advocating for reform of fifty different state laws would require significant time and resources with no guarantee of success.  Similarly, if the Copyright Office finds that the state laws should apply concepts of fair use that does not mean they can guarantee librarians and archivists that they will be free from potential litigation or that they will fare well in court unless there are clear statutory provisions or judicial precedent.  To date, only one state court has affirmed the existence of fair use provisions within state law.  While it is possible that other state courts will look to this case and find fair use under state law, this is possibility is not enough to remove preservationists’ uncertainty.

With respect to access, the RIAA argued that this issue should be left to the marketplace.  They used the example of the National Jukebox (see our previous post) as an example of a private agreement that could serve as a model for future public-private partnerships. However, as the Library of Congress noted, the National Jukebox is a great tool, but those kinds of agreements cannot serve as the basis for all public access. The suggestion of marketplace solutions raises concerns about whether industry wants libraries to pay for a license to provide public access to pre-1972 sound recordings.  The public as a whole needs to have access to content and not every library or archive is a position where they have the resources to negotiate licenses.

Does preservation mean anything without the ability to provide access to the public?

The RIAA stressed that the sole goal of the study is to identify ways to deal with preservation concerns, which is an objective they support. To date, no library has been sued for basic efforts to preserve sound recordings, even making digital copies (of course, that is not a guarantee that such a suit will not occur in the future).  According to state protection supporters, libraries have no need to worry about copyright liability under state law for preservation activities.  While this is not their preferred approach, the recording industry was willing to concede to federal library exemption schemes being brought into state law to encourage preservation.  However, they attempted to avoid addressing librarian concerns about public access.

The Library of Congress explained that preservation without considerations for access to the public was pointless.  They are interested in gaining access rights for the American public as a whole and do not think special access arrangements for certain libraries is sufficient.   The RIAA has reservations about allowing for fair use under state law.  They are concerned about applying an interpretation of fair use exemptions that is too broad.  They consider attempts to allow for downloading or streaming of content to be unacceptable. 

Discussion of placing any pre-1972 sound recordings in the public domain was a complete non-starter for opponents of federalization.  A number of works protected under state copyright law would automatically enter the public domain upon federalization and this is a major concern for the recording industry.  Also, federal law allows for libraries to make and use copyrighted works in their last 20 years of protection, so much of the pre-1972 works would also be available for limited public access.  State protection of pre-1972 sound recordings has meant that there are almost no sound recordings in the public domain.  Advocates for federalization are not proposing that all pre-1972 sound recordings be placed into the public domain, but the complete lack of access is frustrating.

Wrapping it up…

There was a general lack of focus on the needs of the public consumers of this information.  The industry representatives in particular seemed to focus on the needs of libraries while disregarding the interests of the public, the ultimate beneficiaries of preservation activities. The goal of the Copyright Clause as written into the Constitution was to encourage creativity and ensure the public had access to creative works.  Copyright is intended to give a limited monopoly.  Therefore, the idea of works entering the public domain should not been seen as heretical.

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” – Article I, Section 8, Clause 8

This whole discussion raises the question: Is there something inherently unique about pre-1972 sound recordings that require protection under state law compared to all other copyrighted works?  The fact is, modern sound recordings hold the most economic value and they are currently protected by federal copyright law.  Yet, members of the industry have not raised concerns about the state of federal protection for these recordings.  If modern recordings are sufficiently protected under the federal scheme why wouldn’t it do the same for pre-1972 ones?

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