The Copyright Office has just released a Notice of Inquiry asking whether Federal protection should be extended to sound recordings recorded prior to 1972. A sound recording is a song as recorded by a particular artist. Sound recordings were first protected under Federal law in 1972. Prior to that, unauthorized recordings or reproductions of an artist’s recoding were policed under various state criminal and civil law. While the Copyright Act has provided for the protection of pre-1972 sound recordings first registered in other countries, US sound recordings recorded prior to 1972, have not received Federal copyright protections. Many have assumed that this also exempts pre-1972 sound recordings from royalty requirements under Section 114 of the Copyright Act – i.e. the royalties paid by Internet and satellite radio and other digital music providers under the statutory license. How would a change in the law affect Internet radio operators?
That is one of the questions that is asked by the Notice of Inquiry. Many Internet radio operators have not excluded pre-1972 recordings from royalty payments based on any exception that may exist for pre-1972 sound recordings, as the possibility has not been widely publicized. Moreover, some copyright holders have suggested that the digitization of older songs may somehow bring pre-1972 recordings under the coverage of the Copyright Act, or that there may be state remedies that are somehow the equivalent of the Federal public performance right. Others may just not want to go to the trouble of determining which copyrighted songs are subject to the Uruguay Round Agreements Act (making the non-US pre-1972 sound recordings subject to US Federal law). The Copyright Office’s Notice of Inquiry asks what impact the inclusion of pre-1972 sound recordings would have on many undertakings – including the archiving and restoration of sound recordings, and on the current benefits that copyright holders and others enjoy under state laws. In addition, it asks about the benefits and issues that would arise under Section 114 of the Copyright Act – the section that sets out the statutory license under which most Internet radio companies operate.
This is a complicated issue, and Internet radio operators should carefully consider, with counsel, the issue of whether Section 114 royalties are due for pre-1972 sound recordings. The issues raised in the Notice shows how complex this issue is, and the question of what to do with pre-1972 sound recordings cannot be resolved by the Copyright Office itself. Any change in the Copyright Act to fully address the Federal laws that would apply to these sound recordings would have to be made by Congress. The comments filed in this proceeding will help inform the record that will be created in connection with the Copyright Office making a recommendation to Congress about any suggested change in the law. Comments on this issue are due on December 20, with replies 30 days later.