[This blog post was co-authored by Scott Oranburg, Adam Holofcener and Liz Allen]

Recently, there have been some talks about changing the copyright law a bit in a way that we really dig, and we thought you’d like to know about it. See, sound recordings from after 1972 are all copyrighted federally. This means they are protected by certain special protections that are unique to national law, and there is one, uniform copyright code that applies to all sound recordings from 1972 to present day. In contrast, sound recordings from pre-1972 are  based in state law, and this often makes it unclear and confusing to figure out how to legally use them. This is particularly confusing for institutions such as libraries, archives and universities that want to use a sound recording without fully understanding what the limitations and protections are.

Well, back in April, we at FMC submitted a Reply Comment to the Copyright Office, arguing that copyrights for sound recordings created before 1972 should now be put under federal protection.  We firmly believe that artists, listeners and the general public would benefit from increased access to the sound recordings that define much of our national heritage. We also believe that the best way to provide greater access and preservation of such sound recordings is through a streamlining of our copyright law, which will reduce confusion by increasing continuity.

This past Thursday and Friday, June 2nd and 3rd, the Copyright Office held a public meeting to discuss the potential move into federal law.  Our much beloved policy intern, Adam Holofcener, represented FMC at two of the panels to discuss “effects of federalization on preservation, access, and value” and “effects of federalization on ownership and business expectations.”  Each panel began with opening remarks by panelists that included representatives from the RIAA, A2IM, the Library of Congress and the Music Library Association. FMC’s Google Policy Fellow, Liz Allen, and Communications Intern, Scott Oranburg, were on hand to document these panels and live tweet them.

It quickly became clear that two camps have formed on the issue: libraries, archives, and universities want federalization for pre-1972 sound recordings while record labels — both major and independent — are against it.  Patrick Loughney, Chief of the Packard Campus for Audio Visual Conservation at the Library of Congress, argued that federalization would benefit the institutions that preserve sound recordings, and it would also make the recordings more valuable themselves due to increased access. Tim Brooks of the American Association for Recorded Sound Collections echoed our opinion that the current state of copyright law is harming our cultural heritage because so many historical works are inaccessible due to the confusion accompanying state statutory law.  And on a similar note, Eric Harbeson of the Music Library Association noted that federal law permits libraries and archives to utilize post-1972 works for purposes of preservation and archive, so federalizing all copyright would uniformly extend those protections to pre-1972 works as well.  Harbeson also noted that this transition would put some really old works directly into the public domain, but even those will not become valueless because of the possibility to profit from publishing and distribution.

On the other hand, Susan Chertkof of the RIAA argued against legislation. She maintained that new legal concerns would arise if pre-1972 sound recordings were federalized. Additionally, it would cost record labels about $35 to register each album with the copyright office, and Ms. Chertkof argued this burden should not fall on the shoulders of the record labels. While $35 per album may sound like peanuts for major labels, it could add up to a hefty sum if labels choose to register their full catalogs.

One thing is certain: the current system of statutory copyright is causing a ton of confusion because there is so little certainty and continuity among all 50 states.  Both copyright holders and the public will have to make some concessions while trying to fix these problems, but we at FMC believe that an equitable balance can be struck between all parties.  For example, a similar balance must always be reached between copyright holders, who hold a limited monopoly over their work, and listeners, who hope to eventually interact freely with the work when it enters the public domain — we believe that balance can be reached in this case as well. Additionally, because the countless pre-1972 sound recordings are so varied (e.g. John Philip Sousa to The Beatles),  the public meeting was often tenuous when considering a uniformly federalized law. While this is a fair concern, we expect the Copyright Office and Congress to appreciate the differences between a “Stars and Stripes Forever” and “Eleanor Rigby” and act accordingly.

Congress had originally commissioned this inquiry by the Copyright Office, and we will keep you updated with the Copyright Office’s next move.