Re: [ARSCLIST] Orphan Works Article in Billboard

[Jon Noring <jon@xxxxxxxxxxx>]

Tim Brooks wrote:

> For those who might be interested there is a feature story in this
> week's issue of Billboard (May 14) about the Copyright Office
> "orphan works" inquiry. It talks about the problem of older
> recordings whose owners can't be found, and liberally quotes our own
> Sam Brylawski (and incidentally me).  It also mentions that
> organizations such as AFTRA and the AFM are urging a limited
> compulsory license for out-of-print recordings, which would allow
> the artists, at least, to legally reissue those recordings
> themselves.  The author, Billboard investigative reporter Bill
> Holland, really seems to "get it."

I went to billboard.com to see if the article is online, but I did not
find it. (That doesn't mean it's not there, however.)

The interesting issue with sound recordings is that there are (at
least) two copyrights to consider for each recording: 1) the song
composition/lyrics/arrangement, and 2) the fixed sound recording
itself.

Song compositions are, of course, copyrighted the normal way, and
they usually are not an issue vis-a-vis being "orphaned". With
compulsory licensing laws, it's even less of an issue.

So let's look at the sound recording copyrights.

Interestingly, in the U.S., Federal copyright law does NOT even apply
to recordings made before 15 February 1972. Rather, they are covered
by a hodgepodge of State laws, both statutory and common law.

It won't be until Febrary 15, 2067 (by Section 301(c) of Title 17)
when Federal Copyright law preempts State law protections on sound
recordings. At that time, as Federal copyright terms currently apply,
the sound recordings will pass into the public domain. Since some
State laws are much more strict in copyright and copyright-like
protections than Federal copyright law, *all* the pre-1972 U.S.
sound recordings, even as far back as the first commercial recordings
in 1889, are still protected in the U.S. (theoretically at least.)

I'm not sure of the mandate of the Copyright Office in studying the
"orphan" issue, but the Copyright Office can do nothing with respect
to sound recording copyrights except to advise Congress to amend
Section 301(c) of Title 17 to bring pre-1972 U.S. sound recordings
under Federal copyright protection (and thereby pre-empt State laws),
something that I don't expect will happen unless the major recording
companies who own the rights to the old recordings actually push for
it. And I don't expect this since State law protections of sound
recordings appear to be even more robust compared to Federal Law.

For an article I wrote on this almost two years ago, refer to:

http://www.teleread.org/blog/2003_10_26_archive.html#106768614604144566


Jon Noring