[Libs-Or] INFORMATION: U.S. Copyright Office Approves Fix for Sound Recordings

Diedre Conkling diedre08 at gmail.com
Fri Dec 30 10:47:23 PST 2011

Copyright Office Approves Fix for Sound Recordings
Posted on December 30,
by crussell <http://www.districtdispatch.org/author/crussell/>

The United States Copyright Office has recommended that pre-1972 sound
recordings should be protected by federal copyright law in its *Report on
Federal Copyright Protection for Pre-1972 Sound
these older sound recordings are protected by state laws under
which copyright exceptions such as library and archival preservation and
fair use are uncertain. This uncertainty leads to caution on the part of
music librarians and archivists to actively preserve sound recordings— some
in fragile or obsolete formats and extremely rare.

The American Library Association (ALA) and the Association of Research
Libraries (ARL) argued in their
the Copyright Office that—while federalization of pre-1972 sound
recordings would help clarify that library and archives are free to
preserve sound recordings— an equally effective solution to the problem be
supported. Since any legislative change to the copyright law is fraught
with uncertainty, a simple clarification from the Copyright Office that
fair use doctrine applies to state-protected works would be more definite.

The library associations concerns about federalization are two-fold. First,
any attempt to amend the copyright law would involve negotiations with
rights holders who would fight to narrow library exceptions. The primary
copyright exception that would be affected by federalization is Section
108— the copyright exception that allows libraries and archives to make
reproductions of protected works under certain conditions. This exception
is essential to many library services including interlibrary loan,
replacement and preservation. Previous attempts to reach consensus among
stakeholders on changes to Section 108 have proven to be very controversial
and far from successful as witnessed in the Section 108 Study

Second, with federalization of pre-1972 sound recordings comes increased
risk for librarians and archivists to be subject to copyright infringement
remedies, including impoundment of copies and statutory damages of $750 to
$30,000 *per work *infringed for registered works. This risk would have a
particularly chilling effect on mass digitization efforts. Conversely,
state law remedies are small in comparison.

The Copyright Office ultimately decided that benefits of federalization of
pre-1972 sound recordings outweighed the problems and said that
federalization conformed with the intent of Congress to unify all works
under one federal law.

Whether Congress will act on the Copyright Office recommendations is
unknown. But this seemingly minor course of action—protecting pre-sound
recordings under federal law rather than state law—highlights the
complexity of any legislative change to the copyright law. Not only are the
end results of legislation indefinite, the effects of legislative change
carry significant risk.

One very positive note – the Copyright Office said that “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.” (Report, p.136-137) This
recognition of fair use at the state level will be valuable to music
librarians and archivists going forward, regardless of what Congress
ultimately decides regarding federalization.

A handy survey of state
sound recording is also available in the report.


*Diedre Conkling**
Lincoln County Library District
P.O. Box 2027
Newport, OR 97365
Phone & Fax: 541-265-3066
Work email**: **diedre at lincolncolibrarydist.org*<diedre at lincolncolibrarydist.org>
Home email: **diedre08 at gmail.com* <diedre08 at gmail.com>

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