We should give pre-1972 sound recordings federal copyright protection that preempts state law. In the process, let’s take a fresh look at our current copyright system and address some of the biggest problems.
In an op-ed published in USA Today on Monday, U.S. House Representative John Conyers of Michigan, 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 Conyers articulates.
Pre-1972 Sound Recordings Are Subject to Confusing Law
While there is only one federal government, there are 50 state governments. This can cause serious headaches where the law is concerned. 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.”
To address this, the 1976 Act did away with most state law, replacing it with a more comprehensive federal system. Oddly, though, Congress left state law intact with respect to sound recordings fixed before 1972, when the law was written. This means that where older recordings are concerned, federal law is mute and state law governs.
And because it’s much easier to get a license for sound recordings under the federal system than under the state system, and it’s not even clear that a license is always required under most state law, the result is that satellite radio services and online streaming services are generally very good about getting licenses to play songs recorded after 1972, but sometimes don’t even bother to try with pre-1972 songs. So as Conyers points out, Dionne Warwick gets paid for streams of I’ll Never Love This Way Again (1979), but not for streams of Walk On By (1964).
The Anachronistic State Law System Gives Rise to Legal Battles that Threaten to Restrict the Public’s Access to Pre-1972 Songs
But although Conyers suggests that this state of affairs benefits everyone else at the expense of the recording artists, legal uncertainty isn’t good for anyone. As Sherwin posted about a few months ago, The Turtles have filed suit against SiriusXM for playing songs recorded before 1972 without licenses, first in California, and then also in Florida and New York. You can read more about the negative upshot of these legal battles in Sherwin’s post, but in short, the worst-case scenario is that they could cause many pre-1972 recordings to all but disappear from the air (or internet stream, as the case may be).
To further complicate things, a state court in New York recently found that where pre-1972 recordings are concerned, a provision of the Digital Millennium Copyright Act that normally protects service providers on the internet from infringement claims based on the actions of their users, does not apply. In other words, if playing pre-1972 recordings without permission does in fact violate the copyright laws of some states, websites and online services could find themselves as liable under those laws as their users who actually post or share the songs.
All of this would be very bad for the music-listening public. And the public, need we remind ourselves (and Rep. Conyers), are who copyright is all about. Copyright restricts the free speech of the public, but we have it anyway, not out of a sense of fairness or respect for artists, but “to promote the progress of science and useful arts.” Copyright is designed, first and foremost, to facilitate the distribution of creative works so that the public may benefit from them.
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.
What Would Federal Copyright for Pre-1972 Sound Recordings Look Like?
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. Because let’s face it: there are a lot of problems with our current copyright system. Creating federal copyright where none has existed before gives us a chance to take a fresh look at copyright and fix some of those problems. And given that pre-1972 recordings have historically received no federal copyright protection and only limited state protection, perhaps they should be subject to a somewhat less restrictive version of federal copyright.
· Lifetime terms. Why not bring older recordings under federal copyright protection for a shorter period of time than the term that new works receive? New works are protected for the life of the author plus another 70 years. We recommend a term that ends with the life of the author for pre-1972 recordings. This would redress the concern, expressed by Conyers, that the artists themselves are not duly compensated for their works, without restricting the public’s access to the works for longer than necessary.
· Locating authors. Why not provide a window of time when artists must come forward to receive federal copyright protection of their pre-1972 works? This would ensure that those artists who really need compensation for their old recordings can get it, but would also help prevent the problem of orphan works. The public would have unfettered access to old recordings whose creator cannot be located or that no one really cares to claim.
· 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? As Jodie wrote a few months ago, under the current system, a licensee may need to deal with 10-15 licensors to secure a license, a process that can take as long as 15 months. Such a long process is a major barrier for anyone who’s not a big company to get a license.
· Reasonable damages. Why not do away with exorbitant statutory damages for the infringement of copyright in pre-1972 sound recordings? The statutory damages provision in our current system often leads to unjust results. And where new rights are being created, it would make sense to give potential infringers the benefit of the doubt and not sue their pants off.
Bringing pre-1972 sound recordings under the umbrella of federal copyright law could be beneficial, but if it is to be done, it should be done carefully and reasonably. Before we go expanding the scope of federal copyright law, let’s think about how we can limit some of its provisions for the good of the public.
Original image by flickr user istolethetv