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Pre 72 Report

Pre 72 Report

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Published by Ars Technica
Pre 72 Report
Pre 72 Report

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Published by: Ars Technica on Apr 19, 2014
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A number of commenters, particularly ARSC, asserted that reissuing early (meaning, for

the most part, acoustical-era) recordings is unlikely to be profitable. This point was made in the

service of the argument that the movement of such early recordings into the public domain under

federal protection would not negatively affect the record companies’ bottom line.395

In response,

members of the right holder community maintained that (1) there is no way to truly know what

old music styles will become popular again, and (2) it is necessary to retain state protection until

2067 because the so-called “long tail” phenomenon suggests that these older works take longer to

earn a return on their investment.396


17 U.S.C. § 106(6).


See Brylawski T1 at 174-75.


See ARSC at 4.


Bengloff T1 at 31, 33-34; see also Chris Anderson, THE LONG TAIL: WHY THE FUTURE OF BUSINESS IS

United States Copyright Office



ASRC, citing to the Brooks Study findings that 4% of pre-1925 recordings have been

reissued by right holders, with an increase to 12% for 1925-1939 recordings,397

argued that these

numbers showed that right holders historically have not put a lot of stock in the earning potential

of early music reissues.398

Both A2IM and NMPA made the point that one can never assume

what will ultimately prove commercially viable, particularly for smaller labels catering to niche


and that it is too risky to base federal policy upon a presumption as to which pre-

1972 sound recordings will have value in the future.400

Additionally, A2IM explained that under the “long tail” theory, a large number of

heretofore-“niche” cultural products will earn as much as the small number of blockbuster works

when viewed over a longer period of time, because it has become easier to exploit niche markets.

Hence, it argued, pre-1972 sound recordings that would have been allowed to go out of print in

the past are now being kept in the marketplace on the theory that they and their audience will find

each other.401

However, A2IM stated that bringing a high quality recording to market requires a

financial investment, and in order for early recordings to earn the requisite return on investment

they cannot be allowed to go into the public domain.402

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