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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
Copyright:Traditional Copyright: All rights reserved


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The Copyright Office appreciates stakeholders’ efforts to devise ways to encourage

preservation and public access to pre-1972 sound recordings without amending the Copyright

Act. Those suggestions include “partial federalization” – i.e., applying only selected portions of

federal copyright law to pre-1972 sound recordings, limiting remedies for infringement of orphan

works, reforming the existing state laws governing pre-1972 sound recordings, confirming that

the fair use defense is applicable to claims of violation of state laws protecting sound recordings –

and negotiated agreements between record companies and libraries. However, each of the

suggested alternatives falls short of federalization in terms of promoting legal uniformity,

preservation, and public access.

The Office agrees with those stakeholders who opposed the concept of “partial

federalization,” or only applying sections 107 and 108 to pre-1972 sound recordings. Such an

approach would only increase confusion regarding what parts of pre-1972 sound recording

protection are governed by state law and what parts fall under federal law. This result would not

promote clarity and consistency. Moreover, the Office sees no benefit in retaining state law rules

for all aspects of protection for pre-1972 sound recordings other than certain selected exceptions

United States Copyright Office



and limitations. Pre-1972 sound recordings should either be part of the federal statutory scheme

or they should not be part of that scheme.

Regarding the proposal of limiting remedies for good-faith preservation and public access

uses of pre-1972 sound recordings that are also orphan works,497

the Office agrees that an orphan

works provision would be a valuable addition to federalization, but it is not a substitute. An

approach consisting only of limiting remedies for this group of works would leave too many non-

orphan works unaddressed, and would, like partial federalization, increase confusion as to where

to draw the line between federal and state protection.

Reforming state laws rather than amending federal copyright law is simply impractical,

given the effort and uncertainty involved in trying to obtain consistent statutory reforms in all

fifty states. Such an endeavor would be time-consuming and expensive, and achieving

uniformity is highly unlikely. Moreover, even if uniformity in state statutory law were achieved,

there would be no way to ensure uniformity in the decisions of the courts of all fifty states.498

Additionally, only one state would have to reject a proposed model law for the purpose of the

project to falter. Finally, given the Office’s strong belief that the correct policy choice is to unify

all copyright law under federal control, a state-by-state approach would be a major step in the

wrong direction.

ALA and ARL have requested that the Office “confir[m] the availability of a flexible fair

use doctrine under state law in all 50 states.”499

Given that we are aware of only a single state

court case – from a trial court – that has actually applied fair use to a common law copyright


See supra Chapter IV.E.2.


While it is true that various federal district courts and courts of appeals may interpret federal laws
differently, the Supreme Court ultimately can resolve those differences. But the Supreme Court has no
power to resolve issues of state law, even in cases where the laws of all states are identical.


ARL/ALA Reply at 1.

United States Copyright Office




that is a rather ambitious request. Of course, the Copyright Office has no authority to

confirm the substance of state law. Nonetheless, the Office believes that, under proper facts, it is

likely that any state court would find that fair use is a defense that can be considered and applied

under principles of state common law copyright. Note, however, that traditionally fair use was

not available for unpublished works501

– and for the most part state common law copyright has

protected only unpublished works. But at least with respect to commercially distributed sound

recordings, arguments based on the unpublished nature of a work are not very persuasive.

Moreover, because fair use is a judge-made doctrine (merely codified after the fact in the

Copyright Act of 1976), there is no reason to believe that state courts considering common law

copyright claims would not find that the defense does exist under appropriate circumstances.

As noted above,502

common law copyright is not the primary means by which pre-1972

sound recordings are protected under state law. The states more frequently protect those

recordings under theories of unfair competition, which typically do not include a fair use defense,

and through statutes that include no such defense.503

However, some courts have constructed

analogous defenses to torts separate from but similar to copyright.504

It seems likely that in any

case in which an action by a library or archives would be considered a fair use under federal

copyright law, it would also likely be considered permissible under state law.

Finally, the Office applauds the recent agreements between record companies and the

Library of Congress. Such agreements, however, should take place against the backdrop of


EMI Records, supra note 140.


See Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539 (1985); EMI Records, supra

note 140.


Chapter II.E.3.


However, as discussed above, many activities that would qualify as fair use under federal law may not
even be embraced in the tort. See id.


See, e.g., Comedy III Prods. v. Gary Saderup, Inc., 25 Cal.4th 387, 408, 21 P.3d 797, 106 Cal.Rptr.2d
126 (2001) (recognizing a modified fair use defense to a claim of violation of the right of publicity).

United States Copyright Office



federal protection of all sound recordings, so that federal copyright exceptions can facilitate

reasonable uses of recordings that are not covered by a use agreement.

United States Copyright Office



Wire recorder



It is not enough to conclude that pre-1972 sound recordings should be protected under

federal copyright law. A number of decisions must be made with respect to how they are brought

into the federal system, including issues involving ownership, term of protection, and registration.

Indeed, an understanding of how these issues are to be addressed is crucial not only to

determining whether it is feasible to federalize protection, but also to determining how to do so.

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