This morning, the Copyright Office published a notice of inquiry (NOI) in the Federal Register that could lead to legislation increasing the cost of streaming sound recordings created before 1972. The Copyright Office announced that, at the direction of Congress, it is conducting a study on whether sound recordings fixed before February 15, 1972 should be protected under federal copyright law and, if so, to what extent. The Office is seeking comments from interested members of the public on this issue, with initial comments due on December 20 and reply comments due 30 days later. The full text of the Copyright Office's notice can be found here.
Under existing law, with certain exceptions, sound recordings created before February 15, 1972 are not protected by federal copyright,  but they are protected in varying ways under state law. Where state laws exist, they typically protect against the commercial distribution of copies but not against public performances or copies made to facilitate those performances. Because state laws typically do not provide a digital sound recording performance right, but federal copyright law does, the NOI is likely to be particularly important to those engaged in making digital performances of pre-1972 sound recordings (including by Internet streaming).
The Office has asked a list of 30 questions that relate to how offering federal copyright protection to pre-1972 sound recordings may affect (a) the preservation of and public access to such recordings, (b) the revenue expectations of copyright owners and (c) the term of protection for such recordings. The questions also ask whether the law should grant only limited federal copyright protection-e.g., by subjecting such recordings to the public performance right and license under 17 U.S.C. § 114 but otherwise keeping them subject to state, instead of federal protection.