Reason Behind the Limited Protection for Sound Recordings 03/11/2012

        When I came across the limitation of the protection for sound recording, I had a hard time to understand the reason behind the limited protection. However, what I understood from is that I first have to understand more about the laws specifically on sound recordings. Therefore, I read some law papers written about the sound recording laws.
        According to George M. Borkowski, "The reasons for the exclusion of sound recordings from the Copyright Act until 1972 are not entirely clear.  To protect sound recordings created prior to 1972, record companies and other rights holders had to rely on a variety of state statutory and common law, which is specifically permitted by the Copyright Act.  In California, for example, Civil Code section 980 grants the author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, exclusive ownership of the sound recording until February 15, 2047. This situation obviously makes it more difficult for owners of pre-1972 sound recordings to protect their rights to those recordings.  State laws that may offer some protection have been described as a patchwork of often vague and inconsistent rights.  In addition, there is no presumption of validity that is accorded by a copyright registration from the Copyright Office, and chain of title thus may be more difficult to establish.  This is a significant limitation, given that these are older works and include, for example, recordings of old radio broadcasts."

        Therefore, the reason behind limited protection is unclear. However, I believe there is a journal out there that states one of his of her opinion on why the law protecting sound recordings was limited in 1972. So, I will continue to find and learn about it. On the other hand, what came across my interest was the recommendation of how to improve the protection by the copyright office.

        The study has now been completed, and the Copyright Office has released several recommendations based on its results. These recommendations include the following:

  §  Federal copyright protection should apply to sound recordings fixed before February 15, 1972.  (Special provisions will be needed to address ownership issues, term of protection, and registration.)

§  All rights and limitations of the Copyright Act applicable to post-1972 sound recordings would apply to pre-1972 recordings, including a public performance right for digital audio transmissions, fair use, DMCA safe harbor for Internet service providers, and the anti-circumvention provisions of the DMCA.

 § Authors of pre-1972 sound recordings would have the right to terminate grants of transfers or licenses of copyright that are made after (but not before) the date federal protection starts.

§ The term of protection for pre-1972 sound recordings would be 95 years from publication, but in no event beyond February 15, 2067.

§ A transitional period would be instituted during which owners of pre-1972 sound recordings would be able to seek statutory damages and attorneys’ fees in infringement litigation notwithstanding the lack of registration of those works prior to filing suit.