Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings

Besek, June M.; Subotnik, Eva E.

The typical complaint about intellectual property laws is that they are sluggish in responding to technological change. An unfolding question in the contemporary era, however, is the degree to which the threat of constitutional challenge will lead Congress to further adhere to the status quo. In the wake of the patent law overhaul several years ago, for example, the wisdom and scope of those amendments were widely debated, but concern about their constitutional soundness was also expressed in some quarters. Likewise, the latter concern is in play with respect to a proposed amendment of the law that applies to sound recordings. Amidst the waves of technological innovation affecting access to music, the eyes and ears of the music industry, library associations, policy makers and others are focused on a legislative decision made some four decades ago. Specifically, these parties are staking out their positions on the possibility of extending federal copyright protection to pre-1972 sound recordings. Those sound recordings are currently protected through 2067 by a patchwork of state laws, and after that date all pre-1972 sound recordings will enter the public domain. The U.S. Copyright Office has issued a report recommending that pre-1972 sound recordings be brought under federal copyright protection in the near future. There are sound reasons for doing so. The Office’s proposal would result in a shorter term of protection for some recordings and effect other changes in the rights and responsibilities of right holders and users.


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Columbia Journal of Law & the Arts

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July 24, 2015