How Copyright Law Affects Reissues of Historic Recordings (Summary)

Overview

This article by Tim Brooks explores the complex relationship between U.S. copyright law and the availability of historic sound recordings. Drawing from a detailed study commissioned by the Council on Library and Information Resources (CLIR) and the National Recording Preservation Board (NRPB), Brooks quantifies how copyright laws restrict public access to older recordings and evaluates who is actually making these recordings available today.

Historical Context of Copyright Law

The U.S. Constitution allows Congress to grant creators exclusive rights to their works for a limited time, to encourage innovation while ensuring public access through a vibrant public domain. However, over the past century, the term of copyright protection has been significantly extended:

The 1790 Act provided a 14-year term, renewable once.

By 1909, the maximum term had increased to 56 years.

After multiple extensions, the current term is:

- Life of the author + 70 years, or
- For corporate-owned works: 95 years from publication.

In addition, recordings made before 1972 were not protected by federal copyright at all and instead remain under state law until 2067 — laws that may confer permanent rights in some cases.

Dual Copyrights on Sound Recordings

Sound recordings are covered by two copyrights:

The musical composition (the song) — governed by federal law.

The sound recording itself — protected by:

Federal law for recordings from 1972 onward.

State and common law for recordings made before 1972.

As a result, no U.S. sound recording made before 1972 will enter the public domain until at least 2067 — and possibly later, depending on future legislation.

The Problem of "Orphan Works" and Ownership Ambiguity

Modern copyright law does not require:

Renewal

Registration

Clear marking of ownership

This has led to the rise of so-called “orphan works” — recordings whose rights holders are unknown or untraceable. This legal ambiguity has deterred institutions and individuals from reissuing older material, even when there's little commercial incentive for the original rights holders to do so themselves.

Availability and Reissues

Brooks conducted a study of 1,500 recordings released in the U.S. between 1890 and 1964. Key findings include:

84% of these recordings are still under copyright.

Rights holders have reissued only 14% of the protected recordings.

Non-rights holders (mainly foreign or independent labels) have made an additional 22% available through unlicensed reissues.

Thus, non-rights holders have contributed more than rights holders to making older U.S. recordings publicly available — particularly recordings from before 1945.

By genre:

Classical, country, and jazz/gospel recordings are the most heavily protected.

Blues, gospel, and show music are best represented among reissues, primarily thanks to non-rights holders.

Ethnic recordings are poorly served by both rights holders and independents.

Impact on Access and Preservation

Due to restrictive laws and uncertainty around ownership:

Many early recordings are difficult or impossible to access legally.

Institutions often avoid reissue projects to mitigate legal risks.

Important recordings risk permanent loss due to format obsolescence and lack of public dissemination.

Some collectors avoid donating their archives out of fear the material will never be made public.

Brooks emphasizes that dissemination is preservation — and that without legal means to share rare recordings widely, preservation efforts may fail.

Recommendations and Policy Implications

Brooks outlines several reforms to rebalance the interests of creators, rights holders, and the public:

Reintroduce registration or marking requirements to clarify ownership.

Allow compulsory licensing for unused recordings (similar to compulsory mechanical licenses for musical compositions).

Adopt a “use it or lose it” principle, where works not commercially exploited after a certain period revert to the public domain.

He argues that large corporate rights holders cannot be expected to reissue low-profit recordings out of altruism — the law should instead enable libraries, scholars, and independent producers to do so legally.

Conclusion

The article concludes that current U.S. copyright law has unintentionally created a system where much of America’s recorded cultural heritage is legally inaccessible. While non-rights holders have played an essential role in preservation, their work is increasingly discouraged or driven offshore. A more balanced legal framework is urgently needed to support preservation, scholarship, and public access to historic recordings.

Sources

Brooks, Tim. How Copyright Law Affects Reissues of Historic Recordings: A New Study. ARSC Journal XXXVI / ii 2005. Association for Recorded Sound Collections.

Council on Library and Information Resources (CLIR): https://www.clir.org/

National Recording Preservation Board (NRPB), Library of Congress: https://www.loc.gov/programs/national-recording-preservation-board/

Full study available at: https://www.clir.org/pubs/reports/pub133/

Berne Convention and TRIPS Agreement, WTO Legal Texts: https://www.wto.org/english/docs_e/legal_e/legal_e.htm