Final Rule Regarding the Noncommercial Use Exception to Unauthorized Uses of Pre-1972 Sound Recordings
Pursuant to the Classics Protection and Access Act, title II of the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (“MMA”), the U.S. 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 (“NNU”) 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 three rounds of 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. If the user does not find the Pre-1972 Sound Recording after searching the categories below, her search is sufficient for purposes of the safe harbor in 17 U.S.C. 1401(c)(4), establishing that she made a good faith, reasonable search without finding commercial exploitation of the sound recording by or under the authority of the rights owner. The categories are:
- The Copyright Office’s database of Pre-1972 Schedules;
- One of the following major search engines: Google, Yahoo!, or Bing;
- One of the following major streaming services: Amazon Music Unlimited, Apple Music, Spotify, or TIDAL;
- YouTube, for authorized uses;
- The SoundExchange ISRC database;
- Amazon.com, and, where the prospective user reasonably believes the recording implicates a listed niche genre, an additional listed online retailer of physical product; and
- In the case of ethnographic Pre-1972 Sound Recordings of Alaska Native or American Indian tribes, searching through contacting the relevant tribe, association, and/or holding institution.
For more information regarding the specific steps that a user should take to demonstrate she has made a good faith, reasonable search, including more explanation regarding how to search each step, click here.
The final rule also details the filing requirements for a user to submit a notice of noncommercial use. Effective May 9, 2019, users desiring to make noncommercial use of Pre-1972 Sound Recordings may file notices of noncommercial use with the Office using the Excel spreadsheet form provided on the Office’s website. This format is required so that the Office can timely ingest the notices and index them into a searchable online database. For more information regarding the filings of notices of noncommercial use, click here.
The final rule also details the filing requirements for a rights owner to submit a notice opting out of (i.e., objecting to) a proposed noncommercial use. Rights owners may file opt-out notices with the Office using the Excel spreadsheet form provided on the Office’s website. This format is required so that the Office can timely ingest the notices and index them into a searchable online database. For more information regarding the filing of opt-out notices, click here.
In addition, the final rule specifies that persons may request timely notification of when NNUs are indexed by subscribing to a weekly email notification service, which will provide a link to the Office’s online database of indexed NNUs. The Office’s searchable database defaults to listing the NNUs with the most recent index dates first, so individuals should easily be able to identify recently indexed filings.