Copyright

Musicians, scholars, and the librarians that serve these patrons all routinely come into contact with and create materials protected by copyright law. The creation and use of protected materials illustrate a continual balancing act between protecting the intellectual property of creators and ensuring proper compensation while allowing for use of the materials and spurring on new creative endeavors. For its seemingly foundational place within the performing arts community and libraries that serve these materials, many still find navigating copyright law and the legal use of materials daunting, while our continually evolving technological and digital landscape further complicates the matter.

As the creation, dissemination, and use of works found in the music library has shifted with the digital turn, reactive legislation by Congress attempts to keep pace with the changing artistic landscape. This article examines two relatively recent legal interventions affecting music librarians: the Music Modernization Act and the establishment of the Copyright Claims Board. Looking forward into a speculative future, this article also engages in a discussion of AI-generated musical works with regards to copyright law as a topic of growing concern.

MUSIC MODERNIZATION ACT

The Orrin G. Hatch–Bob Goodlatte Music Modernization Act was signed into law in 2018.¹ It is composed of three separate titles. The first and third titles deal primarily with royalty disbursements to creators. Title I: Musical Works Modernization Act updated royalties earned through streaming by setting up a non-profit governing agency to disperse royalties to composers and lyricists as well as updating the court process regarding royalty rate disputes. Title III: Allocation for Music Producers Act provides the ability for music producers, mixers, and sound engineers to receive royalties for the use of sound recordings from the non-profit agency Sound Exchange.

Title II: Classics Protection and Access Act (CPAA), more directly impacts library materials. This title addresses sound recordings fixed in a tangible medium before 15 February 1972. Previously, sound recordings fixed before this date were not subject to federal law, leaving the majority of twentieth-century sound recordings subject to debates over whether they were themselves even subject to copyright law, or viewed as mere reproductions of their underlying musical works. With pre-1972 sound recordings in limbo, regulations, including claims of Fair Use and use by libraries and archives appeared murky, and left up to a patchwork of inconsistent state-based regulations.²

While the CPAA is complex, reflecting a series of discussion and input from groups including the US Copyright Office, the National Recording Preservation Plan, and multiple players within the recording industry. Nevertheless, it successfully brings pre-1972 sound recordings into unified federal protection, for a period of ninety-five years after the year of first publication of the recording, with some further stipulations that slowly release works into the public domain. They are:

• • Recordings first published before 1923 entered the public domain on 1 January 2022.

• • Recordings first published between 1923 and 1946 are granted five years in addition to the ninety-five-year term.

• • Recordings first published between 1947 and 1956 are granted fifteen years in addition to the ninety-five-year term.

• • The transition period ends for all other recordings first fixed before 15 February 1972 on 15 February 2067.

These protections are tempered with exceptions. The two most pertinent for music librarians and the patrons they serve are Section 107 (Fair Use) and Section 108 (exceptions for libraries and archives). The formal extension of Fair Use to pre-1972 sound recordings allows for the use of these works under the same regulations that allow for the use of protected musical works. While Fair Use is still subjected to the four factors and not all cases are judged the same, it does create a federal standard for use.³

The exceptions for libraries and archives authorize these institutions to make reproductions of sound recordings for preservation and access activities specifically defined in the act, which includes interlibrary loan allowances and the reproduction, distribution, display, and performance of works in the last twenty years of their term, so long as the use doesn't commercially exploit the copyright owner.⁴ However, these exceptions for...