If a recording artist transfers his copyright to a label and the label refuses to produce and sell records, can the artists do so himself? Under current copyright law, the answer is no, not without the label's permission. Once copyright in a work is transferred, the new owner can prevent any third party, even the author from exploiting the work leading to the problem of out-of-print works.
An out of print work is a copyrighted work whose owner refuses to exploit it. Copyrights in works last for the life of the author plus 70 years. As works get older, there may be less consumer demand for them and copyright owners might lose their incentive to invest in reprinting and distributing them. Because these works are still under copyright, third parties cannot re-issue them without the owner's permission. Thus, exclusive rights combined with inordinately long copyright terms result in obscuring works rather than making more of them available.
The case of sound recordings is worse than other copyrighted works because copyright protection for sound recordings may last longer than other types of works. Sound recordings were protected by federal copyright law in 1972. Before that, state law protected copyright in sound recordings and it is possible that many states granted perpetual protection. Current federal law preserves this state law protection until the year 2067. Thus sound recordings made in the early 1900s might still be under copyright protection.
Although there is significant historical and cultural interest in these recordings, a Library of Congress study finds that very few of them are re-issued. Many commercially released sound recordings are therefore unavailable to scholars, researchers, follow-on users and the general public. The study found that in many cases private citizens and organizations made these works available despite the risk involved. What is more, pre-1972 recordings, which may be orphaned, cannot be used because the orphan works bills would only apply to works protected under federal copyright law.
To solve the problem of out-of-print sound recordings, the Future of Music Coalition, in orphan works comment filed with the Copyright Office suggested that if a record label did not print a copy, press and sell records for two years, artists should be able to get a compulsory license to do so. These artists would take on the costs associated with the distribution, pay for any rights such as rights in the underlying music. They would also pay the label a portion of their profits.
One commenter, responding to FMC’s suggestion noted that the compulsory license should not be limited to artists or to situations where the label failed to release the record in physical format.
Empowering artists to distribute their works is a good first step towards solving the problem of out-of-print recordings. But any long-term solution has to be based on a concerted effort by artists to change the structure of record contracts. Contracts should be based on some sort of quid pro quo where failure to distribute records would result in a return of copyrights to the artists. In addition, the law needs to be amended to ensure availability of all types of out-of-print works in order to preserve culture that s in danger of disappearing.