Library Of Congress Hoping To Cut Through Tangled Copyright Laws In Order To Archive Historic Sound Recordings

Copyright

from the good-luck-with-that dept

The copyright laws governing sound recordings are a mess, especially here in the US. The steady march of copyright protection towards perpetuity hasn’t helped, extending protection on original recordings to the point where archiving decaying media is generally perceived to border on impossible.

In Europe, sound recordings enter the public domain 50 years after their initial release. Once that happens, anyone can reissue them, which makes it easy for Europeans to purchase classic records of the past. In America, by contrast, sound recordings are “protected” by a prohibitive snarl of federal and state legislation whose effect was summed up in a report issued in 2010 by the National Recording Preservation Board of the Library of Congress: “The effective term of copyright protection for even the oldest U.S. recordings, dating from the late 19th century, will not end until the year 2067 at the earliest.… Thus, a published U.S. sound recording created in 1890 will not enter the public domain until 177 years after its creation, constituting a term of rights protection 82 years longer than that of all other forms of audio visual works made for hire.“

We’ve discussed this problem here before. For instance, an entire library of 1930’s jazz recordings is locked up at the National Jazz Museum, available for listening by “appointment only.” While it’s being archived in an effort to preserve it, the recordings themselves cannot be accessed otherwise by the general public. Other works aren’t even that lucky. Historic audio recordings are degrading and disappearing, but the twisted maze of copyright laws governing these recordings has thwarted archival efforts. The Library of Congress, our nation’s largest archive, is hoping to prevent this from happening. Following up on its study on sound recording preservation from 2010, the Library has narrowed down the aspects of American copyright law that will need to change if this national archival plan is to become a reality.

As part of its preservation plan for sound recording, the Library of Congress has made three common-sense recommendations for copyright reform:

• “Bring sound recordings fixed before February 15, 1972, under federal copyright law.”
• “Enable recordings whose copyright owners cannot be identified or located to be more readily preserved and accessed legally.”
• “Revise section 108 of the U.S. Copyright Act of 1976 in order to facilitate preservation and expand public access to sound recordings.”

Bringing all recordings under federal law will (unbelievably) result in more of these works becoming public domain. A tangle of ancient state laws is to blame for the 177-year waiting period, although several legislative extensions of copyright length hasn’t helped.

A call for archiving of orphan works is rarely greeted with enthusiasm by proponents of the copyright industry — unless its their idea, in which case they’re more than willing to go right ahead and monetize unclaimed creations. But the moment anyone starts talking about “archiving” these works, hackles get raised and the word “exploitation” starts getting thrown around. So, that’s another hurdle the Library of Congress will have to leap.

Finally, Section 108 is in desperate need of revision. Its current wording limits access to any digital copies to “library premises,” making uploading these to a publicly accessible website infringement. This limitation ignores the reality of a digitally connected world and limits access to this sort of archive solely to those who can visit the actual “premises.”

Despite the importance of this work, it seems unlikely this will get off the ground anytime soon, if it happens at all. As the Wall Street Journal articles points out, given the current state of our economy (among other things), it’s hard to believe the administration will make this a priority.

Beyond that, there’s nothing in it for the copyright industry. As the laws stand now, it can control these works for well over one hundred years, even if “controlling” the catalog means little more than simply preventing others from releasing these works, either commercially or non-commercially. In these cases, copyright “protection” feels more like “protectionism,” allowing the incumbents to maintain the status quo with a minimum of expense or effort. And if there’s one thing incumbents like, it’s more of the same, something the Library of Congress’ plans would alter.

It’s a fight worth fighting but it’s highly doubtful the Library will find the allies it needs at this point. But one wonders why this fight even needs to be a fight? After all, as the article points out, books lapse into the public domain all the time and as they do, new publishers craft new copies, thus ensuring the work simply doesn’t degrade and disappear. Copyright protection that extends far past the vanishing point is only hurting our cultural history. The recording industry may be concerned about preserving its legacy, but every move its made up to this point has been entirely about self-preservation. Hopefully an effort like this will be greeted with enthusiasm rather than reticence by the rights holders.

Filed Under: copyright, librarian of congress, sound recordings