from the yet-again... dept
A hodgepodge of 20th century state anti-piracy laws also has kept most sound files out of the public domain before U.S. copyright law was extended to sound recordings in 1972. The study found only 14 percent of commercially released recordings are available from rights holders. That limits how much preservation can be accomplished, Brylawski said.The full study (The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age (pdf)) suggests that copyright laws be changed to deal with the archival problem. The study mentions the famous (and mostly ignored) UK Gowers study that found that extending copyright was a mistake (Gowers later admitted, separate from the report, that the economic evidence clearly indicated copyright terms should be shortened). The study also quotes many researchers, academics and archivists who point out how copyright law has made it quite difficult for them to do basic research and other useful things without violating the law.
While fair use is frequently invoked, there is little case law interpreting its application to specific situations. Some archivists believe the lack of applicable case law discourages institutional general counsels from authorizing preservation and access programs on the basis of fair use. Fair-use provisions in the copyright law (Section 107) permit use of excerpts of copyrighted materials, including recordings, for educational and scholarly purposes, for citation in news reporting and criticism, and for nonprofit activities. However, the courts have interpreted fair use to be an affirmative defense. In other words, the burden is on the defendant to prove fair use; the plaintiff does not need to establish that the use falls outside fair use. Besek further notes that "favored uses are not automatically deemed fair, and other uses are not automatically unfair. The determination depends on the facts of a particular case."Separately, the report notes that DRM and the DMCA's anti-circumvention provision is a real problem for researchers and archivists.
Most witnesses at the hearings conducted in support of this study who were affiliated with educational institutions expressed a belief that copyright law as it applies to sound recordings is too complex to interpret easily, too restrictive, or both. Section 108, for example, which limits access to digital copies made available under that section to library premises, is too narrow to address all educational needs. One witness called for "premises" to be expanded to include network domain, in order to accommodate "the manner in which students and scholars use information in the current academic and scholarly environment. Increasingly, learning is occurring off-site, that is, at home, in the dorm or just anywhere on campus, in addition to the classroom and library."
In the end, the study says that copyright law needs to change to deal with this very real challenge:
Creation of new copyright laws or licensing procedures that acknowledge best practices in audio preservation and assure access to audio heritage is essential to ensure the preservation of that heritage and its understanding and appreciation by generations to come.It then repeats five suggestions made by The Association for Recorded Sound Collections (ARSC), such as changing the fact that pre-1972 recordings are all limited under ancient state laws, rather than federal copyright law (meaning they won't be in the public domain for much, much, much longer than more modern recordings). They also suggest moving copyright term back (just slightly) to 50 or 75 years, supporting orphan works legislation, enabling compulsory licensing to copyright holders for anyone wishing to reissue "abandoned" recordings and allowing non-profits to backup and archive sound recordings without violating copyright. The recommendations are, frankly, a bit weak, but in an era where the government only seems to want to strengthen copyright, it's nice to see at least some effort to push back in some areas. Of course, the likelihood of the Library of Congress actually following through on any of these recommendations seems slim at best.