I filed reply comments on behalf of the Foundation in the US Copyright
Office's rulemaking on an exception for noncommercial uses of pre-1972
sound recordings. There's a copy online here:
In the comments, I wanted respond to some of the initial comments and make
sure that the US Copyright Office didn't make using the exception too hard.
Even though most of these uses likely wouldn't apply to Wikimedia Commons
uploads (since they wouldn't be free to use, just subject to a more limited
copyright exception), it seemed important to make sure that rules didn't
set an overly burdensome requirement on this, in case they become a model
for future orphan works proposals. These rules would govern a process by
which a user can make noncommercial uses of a pre-1972 sound recording if,
(1) after a good-faith, reasonable search, finds that the sound recording
isn't being commercially exploited, and (2) they post their intent to make
the use with the Copyright Office and wait 90 days to see if a rightsholder
In particular, I wanted to emphasize that the rules had to be usable for
most people. For instance, if you require a user to search to see if works
are not being commercially exploited, you should make sure that the user
can know when their search is done. Leaving it open-ended, as many
commenters recommended, doesn't help ordinary users, since there could
always be more places for them to look that they just don't know about.
Another example is making sure that the rules don't require paying for
searches, or detailed documentation to even apply for the
use--documentation should be useful if a dispute comes up later, but
someone shouldn't be barred from a use if no one objects just because they
failed to take enough screenshots of each search result (another
recommendation made by commenters).
Just wanted to let folks know one of the things we've been up to.
On Wed, Nov 28, 2018 at 10:18 AM Sherwin Siy <ssiy(a)wikimedia.org> wrote:
I wanted to let you know that the Copyright Office is seeking comments on
rules that should make it easier for people to make noncommercial uses of
pre-1972 sound recordings that aren't being commercially exploited.
Comments were filed on November 26, and now there's an opportunity to
respond to those comments by December 11.
The Copyright Office is looking for public input on rules it must create
under the Music Modernization Act (MMA), which was signed into law last
month. (We called attention to the threats that earlier versions MMA posed
to the public domain; the passed compromise version contains provisions
that actually improve
status quo in the public domain in some areas)
One part of the MMA lets a user make a noncommercial use of a sound
recording made before 1972 if they make a "good faith, reasonable search"
of Copyright Office databases and music services that offer a comprehensive
set of sound recordings for sale or streaming. If the user doesn't find the
work on those lists after their reasonable search, they can give notice to
the Copyright Office and wait 90 days to see if a rightsholder comes
forward and objects. If not, they can use the work.
The Copyright Office is writing the rules that define what a "good faith,
reasonable search" is, and it has more specific questions in its initial
ranging from music industry groups to the Internet Archive have filed
initial comments; (available here:
responses to those are due on December 11.
The Wikimedia Foundation may file some short reply comments replying to
some key points made in other submissions, or possibly join other
organizations' comments, depending upon feedback.
I'm posting this to the list because I thought it might be valuable for
the Copyright Office to hear the perspective of community members who
upload pre-1972 sound recordings to Wikimedia Commons, or make other
non-commercial uses of the works. Even if you're not likely to use this
particular provision for Wikimedia Commons yourself (given the
restrictions), it could be useful for them to understand what searching for
sources and availability looks like to a typical user, and not necessarily
someone in the music industry.
You can make those perspectives known by filing comments at
. Instructions on how to file in this proceeding from the
Copyright Office are here:
Happy to answer any questions people might have.
Senior Public Policy Manager
Senior Public Policy Manager