Sound recording copyright
A sound recording copyright is the copyright in a recorded fixation of sounds, as distinct from the underlying musical, literary, or dramatic work embodied in the recording. This type of copyright is often represented by the sound recording copyright symbol, .
The Geneva Phonograms Convention provides the international legal authority for countries to bring sound recordings under national copyright and related rights frameworks. Many common law countries, including the United States and United Kingdom, protect sound recordings under their traditional copyright regimes. Other countries provide protection to performers and producers of phonograms under systems of dedicated neighboring rights.
Copyrightable sound recordings include recorded music, radio programs, audiobooks, recordings of telephone calls, and podcasts. In the music industry, the sound recording copyright, also known as the master recording or master rights, is often owned by a separate entity than the musical composition, which is owned by one or more songwriters or publishers.
Terminology
''Sound recording''
Generally, a sound recording is a recording of a sequence of sounds, whether produced by the human voice, musical instruments, or other sources. In practice, many sound recordings embody a vocal or musical performance by a recording artist, and are treated as separate works from the musical, literary, or dramatic works being performed. However, not all sound recordings consist of performances of other works. For example, a field recording of bird songs lacks a human performer but is still considered a sound recording.The concept of a sound recording is defined differently in the copyright laws of individual countries. For example, under United States and Canadian law, the sounds accompanying motion pictures and other audiovisual works are excluded from the definition of sound recordings. U.S. law further distinguishes sound recordings from phonorecords, the material objects in which they can be embodied. Both the underlying literary, dramatic, or musical work and the sound recording are works that can be fixed on a phonorecord.
''Phonogram''
The term phonogram is used instead of sound recording in international agreements and by many countries besides the U.S. Under the Rome Convention, first signed in 1961, a phonogram is defined as "any exclusively aural fixation of sounds of a performance or of other sounds". Identical wording is used in the 1971 Geneva Phonograms Convention. In the WIPO Performances and Phonograms Treaty, a phonogram is defined as "the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work".Phonogram is also used in European Union copyright directives and in the official English translations of national laws such as those of Japan and South Korea.
''Copyright'' versus ''neighboring rights''
Jurisdictions differ as to whether they categorize protections for performers' and producers' rights in phonograms as "copyright" or "neighboring rights". United States copyright law treats sound recordings as copyrightable subject matter, "clearly within the scope of the 'writings of an author' capable of protection under the Constitution". A sound recording copyright vests in performers, producers, or both, who contribute original authorship. Similarly, Canadian law recognizes "copyrights" in both performances and sound recordings themselves.By contrast, many other countries treat the rights of performers and phonogram producers as neighboring rights, particularly in Europe. Philosophically, these rights were historically viewed as "lesser, economic right more akin to industrial property" rights such as design rights and database rights, as they are based on the investment of labor and capital needed to produce a phonogram rather than the personality rights of an author. Furthermore, performances are not subject to any threshold of originality for protection of the performers' neighboring rights, and the act of performing pre-existing material is perceived as less risky than creating new works of authorship. European Union copyright directives such as Directive 2011/77/EU categorize performers' and phonogram producers' rights as "related rights". However, the European Commission has referred to these rights as "copyright" in some of its public communications.
History
When the phonograph was invented in the 19th century, sound recordings were not protected by copyright law. Phonograph manufacturers in the United States sold cylinders and disks with pre-recorded performances of songs, speeches, and stories to promote the technical capabilities of their devices. In the absence of copyright protection, competitors often made and sold copies of these recordings without the authorization of the record companies that had produced them, a practice that drew criticism from recording artists such as Russell Hunting.When Congress passed the Copyright Act of 1909, it expanded the scope of copyright in musical works to cover mechanical reproductions, including piano rolls and phonograph records, but introduced a compulsory license whereby any record or music roll manufacturer could create their own mechanical reproductions of a copyrighted musical composition for a flat rate. However, the Act did not grant copyright protection to sound recordings themselves.
Introduction of sound recording copyright
The British Copyright Act 1911 extended copyright protection to sound recordings for the first time.In the 1960s, U.S. states began to pass laws criminalizing the unauthorized duplication and sale of sound recordings. New York became the first state to pass an anti-record piracy statute in 1967; California followed suit in 1968. Congress passed the Sound Recording Amendment on November 15, 1971, bringing sound recordings under federal copyright protection for the first time. The law came into effect on February 15, 1972, and protected sound recordings created on or after that date. Under this law, copyright owners have had an exclusive right to reproduce, distribute, and prepare derivative works based on a sound recording; however, the rights of reproduction and derivative works are circumscribed to cases involving the duplication of the actual sounds in the recording. The law did not introduce any exclusive right to public performance of sound recordings. Sound recordings fixed before February 15, 1972, remained subject to state-level protection rather than federal copyright law.
Subsequent developments
As part of the Uruguay Round Agreements Act of 1994, the United States "restored" copyright protection to certain foreign works that were still under copyright in their country of origin but were in the public domain in the United States. These works included sound recordings first fixed before February 15, 1972, as they had never been subject to federal copyright protection. Most restored works gained copyright protection on January 1, 1996, provided that they were still copyrighted in their home country on that date.Congress passed the Digital Performance Right in Sound Recordings Act in 1995, which extended copyright protection for sound recordings to public performances "by means of a digital audio transmission". The act also provided for a statutory license for non-interactive streaming services that transmit copyrighted sound recordings, such as Pandora and SiriusXM.
An amendment adding sound recordings to the list of categories that could qualify as works made for hire under the "specially ordered or commissioned" prong of the work for hire definition was passed by Congress in November 1999. This would allow record labels to own sound recordings outright for the entire copyright term, without any possibility for the artists or producers to reclaim their rights after 35 years, as with a normal copyright transfer. Recording artists criticized the amendment, as it would reduce their leverage in their dealings with record companies, and alleged that it was inserted into a bill without giving stakeholders a chance to debate it. But record companies argued that it was a technical amendment that merely clarified how existing law applied to industry practice, since the majority of sound recordings would have already qualified as contributions to collective works. The amendment was repealed in 2000 with the support of both recording artists and record labels.
The Performance Rights Act was introduced into the 110th United States Congress in 2007; the bill would have extended the public performance right in sound recordings to cover any audio transmission, over-the-air or digital. The bill was supported by MusicFIRST, a coalition of recording artists and record labels, and opposed by the National Association of Broadcasters. It was also supported by Marybeth Peters, then Register of Copyrights, when it was reintroduced in 2009. Similar bills have been introduced in subsequent meetings of Congress. Another bill, the Supporting the Local Radio Freedom Act, is a concurrent resolution stating that Congress should not extend public performance rights to over-the-air broadcasting of sound recordings; it has been introduced in every Congress since 2007.
The European Parliament passed Directive 2011/77/EU in 2009, extending the term of protection for performers' and producers' rights in sound recordings. The term of protection was kept at 50 years from the creation of the phonogram if it is not published or communicated to the public. If the phonogram is lawfully published or communicated to the public during that 50-year term, it remains protected for 70 years from such publication or communication to the public. The directive was subsequently passed by the Council of the European Union in 2011.
The United States Congress passed the Music Modernization Act in 2018; Title II, the CLASSICS Act, extended federal protection to sound recordings made before February 15, 1972, preempting state- and local-level copyright claims. The first cohort of sound recordings, those published before 1923, entered the public domain on January 1, 2022. All other pre-1972 recordings will enter the public domain by February 15, 2067.