Copyright Office; Federal Copyright Protection of Sound Recordings Fixed Before February 15, 1972, 67777-67781 [2010-27775]

Download as PDF Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices jlentini on DSKJ8SOYB1PROD with NOTICES 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 VerDate Mar<15>2010 19:21 Nov 02, 2010 Jkt 223001 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 Copyright Office, Library of Congress. ACTION: Notice of inquiry. AGENCY: 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 SUMMARY: PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 67777 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 E:\FR\FM\03NON1.SGM 03NON1 67778 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices jlentini on DSKJ8SOYB1PROD with NOTICES (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’’ VerDate Mar<15>2010 19:21 Nov 02, 2010 Jkt 223001 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 PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 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 1 See 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). 2 Tim 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. E:\FR\FM\03NON1.SGM 03NON1 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices 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: jlentini on DSKJ8SOYB1PROD with NOTICES 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, VerDate Mar<15>2010 19:21 Nov 02, 2010 Jkt 223001 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) PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 67779 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 E:\FR\FM\03NON1.SGM 03NON1 67780 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices jlentini on DSKJ8SOYB1PROD with NOTICES 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? VerDate Mar<15>2010 19:21 Nov 02, 2010 Jkt 223001 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? 3 The 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). PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 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 E:\FR\FM\03NON1.SGM 03NON1 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Notices jlentini on DSKJ8SOYB1PROD with NOTICES 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 VerDate Mar<15>2010 19:21 Nov 02, 2010 Jkt 223001 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 PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 67781 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 National Archives and Records Administration (NARA). ACTION: Notice of availability of proposed records schedules; request for comments. AGENCY: 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 SUMMARY: E:\FR\FM\03NON1.SGM 03NON1

Agencies

[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Notices]
[Pages 67777-67781]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27775]


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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.

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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-submission-index.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

[[Page 67778]]

(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. Pre-1972 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

[[Page 67779]]

situation has changed significantly since that time.
---------------------------------------------------------------------------

    \1\ See 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).
    \2\ Tim 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.
---------------------------------------------------------------------------

    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 pre-1972 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

[[Page 67780]]

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 pre-1972 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.
---------------------------------------------------------------------------

    \3\ The 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).
---------------------------------------------------------------------------

    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

[[Page 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 pre-1972 sound recordings under 
Federal law only for limited purposes has been raised. For example, 
some stakeholders seek to ensure that whether or not pre-1972 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 pre-1972 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