U.S. Copyright Office Issues Final Rule Regarding the Noncommercial Use Exception to Unauthorized Uses of Pre-1972 Sound Recordings
Issue No. 761 - April 9, 2019

Pursuant to the Classics Protection and Access Act, title II of the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (“MMA”), the Copyright Office has issued a final rule regarding the noncommercial use exception to unauthorized uses of sound recordings fixed before February 15, 1972 (“Pre-1972 Sound Recordings”), effective May 9, 2019.

In connection with the establishment of federal remedies for unauthorized uses of Pre-1972 Sound Recordings, Congress established an exception for certain noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited. To qualify for this exemption, a user must file a notice of noncommercial use after conducting a good faith, reasonable search, and the rights owner of the sound recording must not object to the use within 90 days of the notice being indexed in the Copyright Office’s public record.

After soliciting public comments through a notice of inquiry and a notice of proposed rulemaking, the Office has issued a final rule identifying the specific steps that a user should take to demonstrate she has made a good faith, reasonable search. The proposed rule also details the filing requirements for the user to submit a notice of noncommercial use and for a rights owner to submit a notice objecting to such use.