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Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings

Eva E. Subotnik, June M. Besek

This Article examines the constitutional implications of legislation to bring pre-1972 sound recordings under federal copyright protection (referred to hereafter as “federalizing legislation”).  In particular, we consider whether such an amendment could violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution. Using the Copyright Office’s approach as a springboard, we consider the issues that would likely arise under any federalizing legislation.  These issues, however, have implications far beyond the context of federalizing legislation for pre-1972 sound recordings.  Given the proliferation of assets subject to intellectual property laws and the increasing role those assets play in the U.S. economy, the questions addressed in this Article may bear on Congress’ overall ability to amend those laws.

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