july11b.indd


C&RL News July/August 2011  430

$750 to $30,000 per infringed work—that 
are not limited to only commercial uses. In 
addition, courts can determine to impound 
and destroy copies making preservation of 
works a worthless activity. 

There are other reasons to be skeptical 
about federalization of pre-1972 sound re-
cordings. Consider the limitations of Section 
108, the exception to copyright law that al-
lows nonprofit libraries and archives to make 
preservation and replacement copies. Pres-
ervation under Section 108 can only occur 
for nonpublished works and does not allow 
for the making of digital copies necessary to 
preserve works over time. Replacement un-
der Section 108 only allows libraries to make 
a copy of a work after it has been damaged 
or is deteriorating. That is too late if the goal 
is to preserve important cultural artifacts. In 
addition, even when making a digital copy of 
a work is allowed, the resulting copy cannot 
be made available outside of the premises 
of the library. One can argue that, at least 
under federal law, one has fair use, but the 
ALA counters that state law already provides 
for a fair use determination by state courts. 
To provide clarity, ALA recommends that the 
Copyright Office make a statement that fair 
use exists in state law. 

The Recording Industry Association of 
America (RIAA) was well represented at the 
public meetings in opposition to the federaliza-
tion of pre-1972 sound recordings but willing 
to develop a state law solution that would 
be mutually beneficial. Eric Schwartz of the 
RIAA made a few comments near the end of 
the session that were illuminating, including 
that fair use in state law is “on the table,” that 
they would consent not to sue libraries and 
archives that are preserving works, and that 
“non-profits need to be able to assess risk like 
the for-profits do all of the time.” 

Stakeholder consensus over the protec-
tion of pre-1972 recordings seems to be a real 
possibility, with the Copyright Office urging 
that we continue the dialogue. 

Jenni Terry is press officer at ALA’s Washington Office, 
e-mail: jterry@alawash.org

W a s h i n g t o n  H o t l i n eJenni Terry

ALA’s take on pre-1972 sound recordings 
and copyright law
Carrie Russell, director of program on public 
access to information for OITP

The U.S. Copyright Office conducted a day 
and a half of meetings in June to hear stake-
holder comments on whether pre-1972 sound 
recordings, currently protected by state law, 
should be protected by federal copyright law. 

This quirk in copyright law is a result of 
the fact that Congress did not recognize sound 
recordings as protected works until 1972. All 
sound recordings created prior to 1972 have 
been, and continue to be, protected under 
state law that does not move works into the 
public domain until 2067.

Music librarians have dealt with the con-
fusing situation of not being able to preserve 
sound recordings and make them available 
to the public because state laws do not 
have express statutory exceptions available 
in federal law. Instead state law is “judge 
made law,” created through court rulings 
that establish precedent in the state. How-
ever, many reports studying the effect of 
the pre-1972 oddity state that no library or 
archives has violated state common law. Thus 
even though state law lacks the exceptions 
available to libraries and archives, no legal 
action has been taken against libraries and 
archives that have been preserving pre-1972 
sound recordings. This is due to the fact that 
nearly all state laws focus on violations that 
are commercial in nature. For the most part, 
library and archive preservation activities 
make nonprofit uses of works that are no 
longer commercially viable. 

ALA’s position is that the federalization 
of pre-1972 sound recordings will make the 
situation worse than it is presently. Federal-
ization causes more problems, namely sub-
jecting libraries to statutory damages—from