Kelvin Smith Library
Until 2020, the United States did not have a public domain for sound recordings. This changed with passage of the Music Modernization Act. MMA created a procedure for noncommercial use of pre-1972 sound recordings and includes a rolling timeline for pre-72 recordings to enter the public domain, even as recordings continue to receive protection for at least 95 years after production.
Prior to MMA, pre-1972 recordings had been covered under state common law, which holds them as property in perpetuity. EU copyright has been for 50 years from date of release, but has recently been increased to 70 years (though each of the member countries has to ratify the change).
Another feature of the MMA is creation of a mechanical licensing collective (“MLC”) by the US Copyright Office, which will maintain a database of all works available for compulsory licensing. The MLC is meant to identify works and copyright holders, distribute royalties, and create a process for the use of orphan works, which are works whose copyright owners cannot be identified or located.
The conceptual legitimacy of intellectual property as property has been vigorously debated on the Internet. Under present law, there is a chasm between the needs of scholars and preservationists, and the needs of the recording companies and the law. Put simply, any digitization of a commercial recording not done by the copyright holder is probably a violation of copyright, and the archivist may be forced to choose between what is ethical and what is legal. Those who digitize and wish to share their files should be aware of current law.