MLA Works to Federalize Copyright in Pre-1972 Sound Recordings
Eric Harbeson, Chair, Legislation Committee
The MLA Legislation Committee has been working hard to advocate MLA’s interests in the question of copyright in pre-1972 sound recordings. In January, in response to a call for comments from the United States Copyright Office (USCO), the committee drafted a 16-page document explaining our position and asking the USCO to recommend that Congress bring consistency to the law by including pre-1972 sound recordings in federal law. In April, the committee filed further comments in response to an opposing position taken by the Recording Industry Association of America (RIAA) and American Association for Independent Music (A2IM). In June, committee chair Eric Harbeson participated in two days of hearings hosted by the USCO and newly-appointed Register of Copyrights, Maria Pallante.
As many MLA members are aware, recordings are unique in U.S. copyright law in that an enormous number of recordings are subject to state, rather than federal copyright laws. When Congress passed federal protection of sound recordings in 1972, it declined to make that protection retroactive, leaving the earlier recordings subject to state law. In the Copyright Act of 1976, Congress moved to preempt all state copyright laws; however, Congress was concerned that preemption of state record piracy laws would remove all protection from pre-1972 sound recordings—effectively placing them in the public domain. This notion turned out to be mistaken—it simply would have moved protection from state to federal law—but the concern was sufficient for Congress to carve out an exception to the law, leaving pre-1972 sound recordings under state jurisdiction until 2067, when all such recordings will become subject to federal law and enter the public domain.
Because common laws in the states are perpetual and many states do not incorporate term limits, nearly every recording ever made is under some form of copyright. In addition, the exceptions to the law—especially the fair use doctrine and Section 108 exemptions—do not apply uniformly at the state level. Some states have enacted provisions for libraries, but many have not. As a result, the ability of libraries to preserve and provide access to these recordings, even wax cylinders from the 1890s, is badly limited. In addition, because common law protection can reside in any of several places in a given state’s laws, it is difficult for librarians even to know when a use is legal or not. These concerns led Tim Brooks and the Association of Recorded Sound Collections, in partnership with MLA and the Society of American Music, to seek legislative change. In 2009, as a direct result of these efforts and a host of studies showing how precarious the state of recorded sound collections is, president Obama signed legislation which directs the Copyright Office to study “the desirability and means of bringing sound recordings fixed before February 15, 1972, under federal jurisdiction.”
MLA’s position is that there is nothing special about sound recordings that should cause them to receive special treatment and perpetual copyright terms. Every other form of copyrightable work—movies, maps, musical works, books, paintings, etc.—is subject to copyright only for limited terms. For works made before 1978 that term is limited to a maximum of 95 years from the date of creation, and for works made since 1978 it is 70 years after the death of the author (95 years from the creation date for works of corporate authorship). Works published prior to 1923 have entered the public domain.
MLA’s position is that sound recordings should be no different, with one exception. An existing exception in the law gives libraries additional rights to reproduce, distribute, perform, and display works when they are in the last 20 years of their copyright term and not being commercially exploited. MLA is advocating that this be extended to the last 45 years of the copyright term for sound recordings. This is partly because of the accelerated rate in which sound recordings formats deteriorate, and partly in order to harmonize U.S. law with the “neighboring rights” laws in other countries which give sound recordings copyright terms which are shorter than those for other works. In Europe, the neighboring rights terms last 50 years; similarly, the MLA proposal would give libraries extra flexibility in use of unexploited recordings beginning 50 years after the recordings have been fixed.
The hearings at the Copyright Office were thought-provoking and at times animated. Many MLA members may have followed the Twitter stream posted by K. Matthew Dames (“@copycense”). Along with MLA, the majority of those testifying supported federalization in some form. Among those speaking in favor were Sam Brylawski (representing SAM) and Tim Brooks (ARSC) who gave enlightening testimony on many questions posed by the USCO staff, including the history of sound recordings and the degree to which they are commercially available. Copyright scholars Tomas Lipinski, Dwayne Buttler, and Elizabeth Townsend Gard also advocated for federalization.
Eric Schwartz and Steve Marks, two attorneys representing the RIAA, recognized the preservation problems encountered by libraries, but advocated strongly for a solution which preserves state law jurisdiction. Brandon Butler, from the Association of Research Libraries, also advocated a state-based solution, arguing that federal law might create a chilling effect for libraries by introducing statutory damages (up to $30,000 per infringement). MLA’s position in response is that there are many parts of the law which need updating to help libraries, but that the state law regime currently governing sound recordings already creates a chilling effect, and federal law already gives libraries powerful tools to avoid statutory damages, so federalization would be a net benefit to libraries even if it isn’t a perfect solution.
The Copyright Office is expected to release its report and recommendations by the end of this year, after which it will be up to Congress to make any changes. More information about the process, including links to the comments filed and hearing transcripts, may be found on the MLA’s Web site, Copyright for Music Librarians (copyright.musiclibraryassoc.org).

Sam Brylawski, Peggy Bulger (American Folklife Center), Tim Brooks,
Eric Harbeson at the hearings, taken by Andy Moyer.
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