53 Pages Posted: 6 Sep 2012 Last revised: 16 Jun 2015
Date Written: 2014
Amidst the waves of cutting-edge 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 by a patchwork of state laws, which will not be preempted by federal copyright until 2067, when all pre-1972 sound recordings will enter the public domain.
The U.S. Copyright Office recently issued a report recommending that federal law be amended to bring pre-1972 sound recordings under federal copyright protection in the near future. 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 of pre-1972 sound recordings. This article examines the constitutional implications of such a change. In particular, we consider whether, in the face of a challenge that might be brought by affected stakeholders, such a legislative amendment could violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution.
Keywords: Copyright, Sound Recordings, Pre-1972 Sound Recordings, Music Industry, Copyright Office, Constitution, Fifth Amendment, Takings, Due Process, Preemption
Suggested Citation: Suggested Citation
Subotnik, Eva E. and Besek, June M., Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings (2014). 37 COLUM. J.L. & ARTS 327 (2014) ; St. John's Legal Studies Research Paper No. 15-0014. Available at SSRN: https://ssrn.com/abstract=2141818 or http://dx.doi.org/10.2139/ssrn.2141818