By FMC Interim Executive Director Casey Rae

If you’re a copyright nerd (wait, you’re not?), you may have come across the issue of “pre-’72s.” In a nutshell, recordings made before February 15, 1972 are not protected by federal law, which can complicate how—or whether—royalties are paid for certain uses, like plays on internet or satellite radio.

Many people are unaware that there wasn’t even a copyright for recordings until 1972. Well, that’s not entirely true—some sound recordings made before ’72 are copyrighted at the state level. Still, federal protections are relatively new. At least when compared to compositions, which have been protected since the early 1800s (public performances of musical works came under federal law in 1897).

Debates about pre-’72 recordings might seem arcane, but there are major implications for today’s music ecosystem. First there’s artist compensation. The absence of a performance right for pre-’72s means that there’s no guarantee that recording artists are going to get paid fairly for the use of their work when played on Internet or satellite radio. (AM/FM broadcasters aren’t obligated to pay performers anything, though they do pay songwriters; more info on this crazy loophole here.) The lack of federal recognition also makes it more complicated for services to obtain a license to play music—and where there is no permission, there’s potential liability.

This stuff isn’t theoretical. The three major record labels are currently suing satellite radio broadcaster Sirius/XM for playing pre-’72 recordings without paying for the privilege. The legal question is whether California laws—where the suit is filed—include a public performance right for the recordings in question. To this end, the labels have filed a request for clarification of the law, the results of which could determine whether satellite radio is on the hook for infringement. But the actions aren’t just coming from the labels: Baroque-pop legends The Turtles also filed suits with similar objectives in California, New York and Florida.

Even though all of this could be fixed through legislation establishing federal protections for pre-’72 sound recordings, labels (including some independents) have argued against such a solution. For the majors, this could be part of a strategy to force digital broadcasters to cut direct deals on more favorable terms than what comes out of federal rate proceedings. It also may have something to do with the “safe harbors” for Internet sites, which shield online companies from user infringment provided the services comply with notice-and-takedown requirements outlined in the Digital Millennium Copyright Act (DMCA). Some might argue that the DMCA doesn’t apply to pre-’72s, in which case, any number of online service providers could be facing massive damages. Legal opinions here vary, but it’s likely that major labels are keen to exploit any grey area.

You might wonder why, when enacting laws in 1972 to protect sound recordings, Congress chose not to apply retroactive protections. Many theories abound. The 1972 federalization was a stopgap measure with a sunset provision—Congress was in the midst of hammering out the numerous stipulations that would become the 1976 Copyright Act. Meaning, Congress may have intended to return to the issue later, but somehow it fell through the cracks. Back in 1972, the labels were pushing for federal protections as a means to combat piracy. It’s unclear why they wouldn’t want these protections to apply to earlier recordings, but they may have just been trying to get what they could get as quickly as they could get it.

As to why retroactive federalization didn’t happen under the 1976 Act, well, that’s a bit fuzzier. It is difficult to divine the intent of Congress under most circumstances; this omission could have been intentional or accidental. They may have simply run out of time to establish a functional protocol for older recordings that already exist under a patchwork of state statute and case law. And given that federal protections for post-72s were so new, it was probably difficult for legislators to comprehend market impact, let alone perceive future market failures.

But that doesn’t mean that it isn’t important to address the issue now.

The Tennessee state legislature is attempting to do just that with the introduction of a bipartisan bill to create a digital public performance royalty for pre-’72s. Some see this bill as an encouragement for the US Congress to do something, but it remains to be seen whether federal legislators respond. In the meantime, the United States Copyright Office issued a comprehensive report in 2011 that covers pretty much every angle and recommends a process to achieve federalization. FMC participated in the roundtable hearings that informed this report; if Congress picks up the mantle, we’ll be on top of it.