Implementing the Music Modernization Act: Special Considerations for Promulgating Rules on Pre-1972 Ethnographic Sound Recordings

Mari Hulbutta

Background of the Noncommercial Use Exception and Timeline of Implementation

The purpose of the blog post is to summarize the recent administrative actions involving the U.S. Copyright’s implementation of the 2018 Music Modernization Act’s provisions for pre-1972 sound recordings. In addition, it is the goal of this post to facilitate understanding of the Act’s implications for Native Americans.

The Music Modernization Act updated the U.S. Federal copyright regime in many respects. One of the key functions of Title II of the Music Modernization Act, the Classics Protection and Access Act (CPAA), is the expansion of copyright infringement remedies to include owners of sound recordings with a fixation date before February 15, 1972.

Under the CPAA, certain noncommercial uses of pre-1972 sound recordings that are not being commercially exploited qualify for a safe harbor and will not be considered unauthorized use. In short, Section 1401(c) provides that noncommercial use of pre-1972 sound recordings is authorized if (1) the prospective noncommercial user makes a good faith, reasonable search for the sound recording to determine whether the it is being commercially exploited; (2) the prospective noncommercial user files a notice of noncommercial use identifying the sound recording and the nature of the use; and (3) the rights owner of the sound recording does not opt out of the noncommercial use by filing notice thereof within 90 days.

The U.S. Copyright Office (USCO) began promulgating regulations as directed under the statute within one week of the Act becoming law. On October 16, 2018, USCO published a notice of inquiry in the Federal Register on the noncommercial use of pre-1972 sound recordings. Specifically, the USCO sought input on (1) the specific, reasonable steps a user could take to constitute a good faith, reasonable search; and (2) means of establishing the form, content, and procedures for users to file notices of noncommercial use and rights owners to file opt-out notices. These two topics, discussed in greater detail below, generated ten initial comments and fifteen reply comments from stakeholders.

As discussed below, each of the USCO’s inquiries raises concerns about promulgating rules that satisfy statutory requirements yet account for the unique sensitive nature of pre-1972 sound recordings of Native Americans. Professors from throughout the U.S. and Canada as well as the National Congress of American Indians (NCAI), a prominent national organization that advocates on behalf of tribal governments, submitted comments highlighting implications of the USCO’s inquiries on Native American pre-1972 ethnographic recordings.

Based on the comments, the USCO issued a proposed rule on February 5, 2019. The proposed rule was largely organized around the same two inquiries posited in the initial notice. The most recent development concerning this matter is NCAI’s comments on the proposed rule.

Concerns for tribes surrounding a prospective user’s good faith, reasonable search

Statutory requirements.

In order to determine that a pre-1972 sound recording is not being commercially exploited, a prospective noncommercial user must first conduct a good faith, reasonable search for the sound recording in both the USCO’s index of pre-1972 schedules and on music services offering a comprehensive set of sound recordings for sale or streaming. (See 1401(c)(1)(A)). Following a reasonable search, a prospective noncommercial user may file a notice of noncommercial use with the USCO, which will then be indexed into the public record.

Unique cultural and legal based concerns surrounding Native American sound recordings.

Professors specializing in the fields of law, anthropology, and sociology submitted comments in response to USCO’s notice of inquiry explaining that “while ownership interests in pre-1972 ethnographic sound recordings are presumed to have vested in and remained with the performers who recorded them under the common-law rule, holding institutions are typically the ones who possess the master recordings and any copies, and exercise de facto control over their use today.” This dynamic illustrates a need for USCO to consult with tribes to discuss ways of reconciling tribal law principles where they are at odds with copyright law principles. For example, tribal law may dictate that use recordings of culturally sensitive practices must adhere to community standards whereas copyright law fails to consider the sensitive nature of ethnographic recordings. Where an ethnographic sound recording contains information that a tribe would not want exploited, it would be prudent for the owner of the sound recording to acknowledge and respect the tribe’s wishes regarding use even if use is non commercial. Accordingly, NCAI recommends the following language be added to the proposed rule: “The Copyright Office acknowledges that tribal laws and custom apply to all aspects of pre-1972 sound recordings of American Indian and Alaska Native tribes.”

Suggested tribal certification element of search requirement.

The professors responded to the USCO’s inquiry about what would constitute a reasonable search by proposing a tribal certification process to confirm the accuracy of information returned by the prospective users’ search. The proposed certification procedure would also place the cost burden on the user applying for noncommercial use. This model, in the professors’ view, would help address challenges resulting from the lack of a comprehensive service to identify ethnographic sound recordings. Ultimately, the professors maintain “a user should not qualify for the safe harbor unless the relevant Native American tribe or tribes has certified the identity of the sound recording, its owner(s), and its current commercial uses.”

USCO’s proposed search step for pre-1972 sound recordings of Alaska Native or American Indian tribes or communities.

Claiming to have created a practical rule that responds to public comments, the USCO proposed a rule identifying five steps that a prospective noncommercial user can take in order to meet the good faith, reasonable search standard. While the proposed rule creates a sixth step claiming to be “tailored” for searches involving Alaska Native and American Indian sound recordings, the proposed rule expressly rejects the suggested tribal certification process. USCO justifies the rejection by saying that it must “be careful not to exceed its regulatory authority, by, for example, imposing a requirement that the user obtain certification of the identity of the sound recording and its owner before making use of the safe harbor.”

The sixth step provides that if the prospective user does not locate the relevant sound recording in the USCO schedules, the user should contact the Alaska Native or Native American tribe and, if known, the relevant holding institution to determine whether the sound recording is being commercially exploited.

An immediately apparent problem is the ambiguity surrounding the USCO’s phrasing of “pre-1972 sound recordings of Alaska Native or American Indian tribes or communities.” As NCAI explains in its reply comments to the proposed rule, this phrasing warrants clarification as to the scope of populations the rule implicates. NCAI’s position is that the term “communities” is redundant if it refers to tribes, but if the USCO uses the term to refer to something broader than tribes, there should be a definition.

A related issue is that the rule suggests the user locate tribal contact information in NCAI’s tribal directory, which includes information on both state and federally recognized tribes, yet the statute and rulemaking actions thus far are silent as to the indigenous population(s) that the noncommercial use safe harbor applies to (e.g., federally recognized tribes, state recognized tribes, and/or Native Hawaiians). If the USCO and tribes determine the scope of indigenous rights owners is limited to federally recognized tribes, USCO should direct prospective users to contact tribes listed in the Bureau of Indian Affairs’ tribal leader directory. Notably, in its reply comments to the proposed rule, NCAI recommends that USCO direct users to rely on the Bureau of Indian Affairs resource rather than its own directory.

An additional concern raised by the proposed rule’s user notification step for tribal sound recordings is that notice implies less of a dialogue and more of a one way communication between the user and the tribal stakeholder. The importance of a dialogue between a user and a tribal stakeholder is underscored by the Federal government’s responsibility to consult with tribes on a government-to-government basis.

Overall, the proposed rule indicates a need for further consultation with tribes to address some of the nuances that are likely to complicate the search process, including: contact by what means? What tribal office should users attempt to contact first? How should a user proceed in the search where a recording belonging to multiple federally recognized tribes is involved? Face-to-face consultation sessions between the USCO and tribes would help address these questions and serve as an opportunity for tribal stakeholders to further educate the USCO on how to be a strong Federal partner to Indian Country.

Discussion of issues surrounding owner opt-out process and other procedures

Statutory Requirement.

After the prospective user conducts a good faith, reasonable search and files a notice of noncommercial use, it becomes incumbent upon the rights owner to file an opt-out notice within 90 days of the filing of the noncommercial use notice in order to object to the noncommercial use. If a rights owner does not file an opt-out notice, noncommercial use is permitted.

Federal duty to consult with tribes.

As an initial impression, the statutory requirement that the rights owner bear the burden of monitoring USCO filings concerning noncommercial use of its sound recordings seems problematic, especially for ethnographic sound recordings whose owners are a tribe, tribal community, or tribal member. The complicated history of researchers recording songs, prayers, and other oral cultural practices in Native American communities – sometimes without authorization – paired with the culturally sensitive nature of ethnographic sound recordings warrants opportunities for tribal stakeholders to educate the USCO on these concerns before a final rule is issued. In fact, as NCAI’s initial comments indicate, Executive Order 13175 requires the Federal government to engage in meaningful consultation with tribes on a government-to-government basis whenever Federal policies having tribal implications are being developed. Hence, the USCO has a duty to meaningfully consult with tribes in promulgating rules concerning noncommercial use of pre-1972 sound recordings, including the opt-out rules.

Burdens on rights owner to monitor USCO indexes and file opt-out notice.

Furthermore, tribal sovereignty complicates the requirements involving a “rights owner” because some bands of tribes are legally distinct yet have cultural practices originating from a single people. The United States’ Indian removal policies often resulted in dissolution of once cohesive tribal unit existing since time immemorial. Today, there are separate sovereign Seminole peoples, for example. This reality indicates a need for the USCO to clarify whether and how tribal stakeholders (and perhaps individual tribal members) should surveil USCO notices of noncommercial use for any works in which they might be considered a rights owner.

In practice, this requirement could be administratively exhausting to tribes because not all tribes have an office or person dedicated to monitoring intellectual property at all, let alone copyright notices specifically. As NCAI expressed in its comments replying to USCO’s notice of inquiry, “due to the circumstances of how these recordings were conducted . . . tribes today are unaware of much of the content that they potentially hold valid copyright claims over.” Although the proposed rule includes language directing that where a pre-1972 sound recording has multiple rights owners, only one rights owner needs to file an opt-out notice for purposes of section 1401(c)(5), USCO should consult with tribal stakeholders to determine whether this provision appropriately applies to Native American sound recordings, or whether a separate provision is needed.