This review of the laws concerning pre-1972 sound recordings suggests that in most cases, it is unlikely that a library would be liable under federal or state law for preservation copying or limited streaming for research and scholarship of pre-1972 sound recordings that were never commercially distributed.
Still, in some cases libraries do risk liability, even if the possibility that a lawsuit would be filed—and would ultimately be successful—is small. For that reason, it is neither realistic nor practicable to create categorical rules of use applicable to all pre-1972 sound recordings, or even to all pre-1972 unpublished sound recordings, without reference to when, where, and by whom they were created and under what circumstances, by whom they are currently owned, and what they contain.
Sound recordings differ in many respects, and the nature of the legal protection that applies to them differs too. The laws are inconsistent and uncertain, and particularly in the case of common law, can change to respond to the equities of a particular situation. Sound recordings should be addressed individually or in groups, where appropriate, to evaluate whether there are legal risks to the library in streaming and how those risks can be minimized. And, of course, institutions vary in the amount of risk they incur in undertaking potentially infringing activities, and in the amount of risk they are willing to incur.
There are many areas where the law is under development, in the legislature and in the courts. Areas of law that are uncertain today may be resolved in the near future.
Greater certainty could be achieved by bringing sound recordings into the federal copyright scheme. Whether the political will exists to do so is another matter. The Section 108 Study Group made no recommendations with respect to pre-1972 sound recordings, but there will likely be an opportunity for further input as the Copyright Office, and then Congress, considers amending the federal copyright law to update library exceptions. Even if pre-1972 sound recordings were brought under federal copyright law, however, federal law contains ambiguities and unanswered questions about the scope of permissible use. Some of these questions may be addressed as the effort to reform section 108 proceeds.
A single federal system of protection for bootlegged sound recordings may be even less realistic, at least until the constitutionality of federal protection for these recordings is finally resolved. And the current federal antibootlegging law does not encompass all of the types of recordings that state law protects, since it is limited to recordings of musical performances. But uncertainty surrounding federal antibootlegging law could be significantly diminished by an amendment that made clear that copyright exceptions, particularly those available to libraries and archives, are available with respect to scholarly and research uses of bootlegged recordings.
This report has focused on libraries generally. The Library of Congress, however, occupies a unique position under the law and, like many national libraries around the world, has special privileges. It also occupies a unique position in our national culture, and its past practices have made it a particularly trusted institution in the United States, earning it the confidence and respect of libraries, right holders, and users. The Library of Congress’s special role might allow it to obtain legislation that would enable it to provide off-premises streaming of sound recordings to researchers and scholars, with appropriate limitations.207
Finally, legislation is one tool to provide more clarity, but there are other possibilities, such as agreements with relevant right holders, or best practices established with input from relevant interests.
207 At the same time, if the Library were to proceed based on a very aggressive interpretation of the law, it might jeopardize its status as a uniquely trusted institution and its ability to achieve special legislation in the future.