Protecting Sound Recording Artists and Getting It Right This Time

[Commentary] In an op-ed published in USA Today on Dec. 3, 2013, Rep John Conyers (D-MI), the ranking Democrat on the House Judiciary Committee, argued that federal copyright protection should be extended to pre-1972 sound recordings, which at present only receive copyright protection under state law. Extending federal copyright to pre-1972 sound recordings makes a lot of sense, but not for the exact reasons Rep Conyers articulates. But pre-1972 sound recordings are subject to confusing law.

While there is only one federal government, there are 50 state governments. Different states might have slightly (or sometimes very) different laws, making it very difficult to keep them all straight. Before the last major overhaul of federal copyright law, in 1976, dual federal and state copyright law systems were the norm, a situation that Congress described as “anachronistic, uncertain, impractical, and highly complicated.” So yes, we could use an update to the Copyright Act that brings pre-1972 recordings under the umbrella of federal law, if it’s written in such a way as to put a stop to the multiplying state lawsuits that threaten to limit the public’s access to the recordings.

Before we go and bless the application of federal copyright law to pre-1972 recordings, though, let’s think about what that might look like.

• Lifetime terms. Why not bring older recordings under federal copyright protection for a shorter period of time than the term that new works receive?
• Locating authors. Why not provide a window of time when artists must come forward to receive federal copyright protection of their pre-1972 works?
• More robust statutory licensing. Why not provide for a streamlined licensing system so that licenses for pre-1972 recordings can be secured quickly and easily?
• Reasonable damages. Why not do away with exorbitant statutory damages for the infringement of copyright in pre-1972 sound recordings?