Upon Congress’s prompting, the U.S. Copyright Office has begun a study on the desirability of bringing sound recordings fixed before February 15, 1972, under federal jurisdiction. In a notice of inquiry, the Copyright Office has requested written comments from all interested parties.

Sound recordings were protected solely under state law until 1971, when Congress provided that sound recordings first fixed on or after February 15, 1972, would be eligible for federal protection. Pre-1972 recordings of U.S. origin were left behind, protected only by state law regimes. But mark your calendars, preemption of state law protection is set for February 15, 2067. . .unless the public motivates Congress to take action sooner.

With thin distribution by rights-holders and a thinner public domain, access to pre-1972 recordings is largely in the hands of libraries and archives. Given the patchwork of state and federal coverage, libraries and archives have been uncertain about their legal ability to preserve and provide access to pre-1972 recordings. The clock is ticking as phonorecords, and the culture and history pressed into them, deteriorate. Records

Along with the concerns of preservationists, the Copyright Office is eager to hear the tune that rights holders and licensees are singing, as well. After all, the public domain, copyright ownership, and the applicability of statutory royalties would be altered with the endowment of pre-1972 recordings with federal jurisdiction.

As a fan of the 1971 recordings “Ain’t No Sunshine” and “American Pie,” you may be eager to make your voice heard on this issue. The submission form is available as of November, 3, 2010, and comments are due on December 20, 2010. However, by floating questions about preservation, economic impact, terms of protection, and constitutionality, the Copyright Office will have plenty of feedback to sift through.

Kelly Donley

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