Pre-1972 sound recordings should be brought under federal copyright protection,...

before 1972 are subject to varying state statutory and common laws. Universal Music Group nearly two years ago took the rare step of suing an alleged copyright scofflaw, Grooveshark, in New York state court for infringing its pre-1972 recordings (WID Jan 12/10 p5). When Congress first gave federal protection to sound recordings in 1972, it “did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so,” the report said. Federalization would better serve libraries and archives, giving them “more certainty and, in general, more opportunity than state laws to preserve and make available” old sound recordings, though the office acknowledged libraries and archives don’t care for the exceptions and limitations in Copyright Act sections 107 and 108. The concerns of record labels that federalizing would “cast a cloud over existing ownership of rights ... is not insurmountable,” the office said: Congress would simply have to “expressly” provide that ownership would “vest in the person who owned the rights under state law just prior” to the 1972 update. Pre-1972 recordings would be governed not only by federal law for digital public performances, fair use, safe-harbor liability for ISPs and statutory licenses for streaming and other transmissions, but also “future applicable rights and limitations” Congress may enact, such as the long-sought solution to orphan works, the report said. The office recommended giving authors of pre-1972 recordings the right to “terminate grants of transfers or licenses of copyright” made after the start date for federal protection -- but not termination rights for grants prior to federalization, which would raise “serious issues with respect to retroactivity and takings.” Pre-1972 recordings should get 95 years of protection from publication, or 120 years from “fixation” if the work hadn’t been published prior to federal protection. But “in no case” would protection continue past Feb. 15, 2067, the original date Congress set for all recordings to come under federal protection, except in cases where the terms would expire before 2067 -- the rightsholder could then apply for a longer term. The office recommended a “transition period” of six to 10 years for recordings published between 1923 and 1972, during which a rightsholder can make a pre-1972 recording available to the public at a “reasonable price” and get protection until 2067. For pre-1923 recordings, the office recommended a three-year transition period during which the rightsholder can make a recording available to the public for a reasonable price for the next 25 years, after which it will lose copyright protection. The report doesn’t attempt to set parameters for what constitutes a “reasonable price,” except to say that pre-1972 rightsholders should have the “ability to legitimately exploit economically viable assets, but not to prevent third parties from using” those recordings “in ways consistent with federal copyright law."