Why World War I Recordings Won't Enter The Public Domain Until 2049

from the that-doesn't-seem-right dept

In the past, we've pointed to the excellent (and useful) public domain tracker from Cornell, which helps you determine whether or not a work is in the public domain. In the past, I've generally focused on the top part of the chart, and forgot the ridiculous situation with sound recordings, which gets very little attention when it comes to copyright discussions. Basically, due to a quirk in the way US copyright law was constructed, sound recordings made prior to 1972 are treated quite differently than other works. I was reminded of this, thanks to Glyn Moody, pointing me to a discussion on an archivists' mailing list about the trouble of using World War I music. As copyright law stands today, works (in the non-sound recording division) published prior to 1923 are in the public domain. But that's not true for sound recordings:
The bad news is that no sound recording made before 1972 has federal copyright protection. They are instead protected by state common law copyrights, and will not enter the public domain until in most cases 1 January 2049, regardless of when they were recorded. .... Note that state protection is afforded even to European recordings, most of which enter the public domain in their home country after 50 years.
Understanding why this is really does highlight just how screwed up copyright law has become in this country, and how far it's come from its origins. That same discussion points people to Peter Jaszi's (a true expert on copyright and fair use) recent paper on pre-1972 sound recordings, where he details the history of all of this. In part, it's due to the fact that Congress did not include sound recordings in the 1909 Copyright Act. It's actually quite important to understand why they did not do so:
Although Congress subjected federal copyright protection to an overhaul by enacting the 1909 Copyright Act, it still failed to grant statutory copyright protection to sound recordings. Despite efforts by some members of Congress to raise the issue of sound recordings, the final bill declined to extend protection. Indeed, the report released with the Copyright Act expressly stated that Congress did not intend to protect sound recordings: "It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices." According to one commentator, Congress had two principal concerns about sound recordings, leading it to decline to protect them. First, Congress wondered about the constitutional validity of such protection. The Constitution allows Congress to protect "writings," and Congress was uncertain as to whether a sound recording could constitute a writing. Second, Congress worried that allowing producers to exclusively control both the musical notation and the sound recording could lead to the creation of a music monopoly.
That seems like an important paragraph to show to folks who insist that copyright on sound recordings must obviously be covered by copyright and/or that it's a "natural right" to include sound recordings under copyright. Clearly, even Congress felt it was likely to be unconstitutional for quite some time.

Congress (under tremendous pressure from exactly who you would imagine) finally added protection to sound recordings in 1972, but in the meantime, some states had passed local laws to deal with unauthorized copying and distribution of sound recordings. While Federal Copyright law in the 70s was designed to totally pre-empt state copyright laws, a court ruling in Goldstein v. California (over bootlegging) found otherwise -- and said that state laws did apply to sound recordings published prior to 1972. The different state laws vary quite a bit, and apparently a bunch of them do exempt personal use from those laws.

But, either way, because of this little quirk of history, where Congress mostly believed that sound recordings could not be subject to copyright on a Constitutional basis, many such works are effectively locked up for much, much long than they would be if under federal copyright law.


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    Leviathant (profile), Aug 4th, 2010 @ 11:27am

    Very interesting, I had no idea.

    I had always assumed sound recordings also fell under the 1923 public domain timeline. Thanks, and great insight into the pre-industry Congressional outlook on copyrighting.

    Copyright warehousing depresses the hell out of me.

     

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    DH's Love Child (profile), Aug 4th, 2010 @ 11:29am

    Ah, copyright

    Just as congress intended... *sigh*

     

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    Mr. LemurBoy (profile), Aug 4th, 2010 @ 11:30am

    Oh great. As if all the IP hurdles out there weren't confusing enough.

     

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    DB, Aug 4th, 2010 @ 11:40am

    Orphaned Works

    I just wonder how many of these recordings really orphaned works that no one could really lay claim to.

     

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    Flabbergasted, Aug 4th, 2010 @ 11:45am

    wow.

    Love this quote from the Goldstein ruling: "it is difficult to see how the concurrent exercise of the power to grant copyrights by Congress and the States will necessarily and inevitably lead to difficulty."

    The goldstein ruling even explicitly allows eternal state copyrights!

    The California statute (http://law.onecle.com/california/penal/653h.html ) doesn't include an expiration date. I don't see recordings prior to 1972 enter the public domain in 2049, or ever (at least in California). Where does the 2049 number come from? Is that when other states allow recordings into the public domain?

     

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      vivaelamor (profile), Aug 5th, 2010 @ 3:19pm

      Re: wow.

      "The California statute (http://law.onecle.com/california/penal/653h.html ) doesn't include an expiration date. I don't see recordings prior to 1972 enter the public domain in 2049, or ever (at least in California)."

      The expiration date is part of the California Civil Code: "The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047". The linked report references it in the section on California.

      I am unsure where 2049 comes from. The guy who said it has his own page, which suggests 2067 would be the correct date for other states.

       

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    Crosbie Fitch (profile), Aug 4th, 2010 @ 11:46am

    Recent corruption of 'public domain'

    You do know that the definition of 'public domain' as all published works not protected by copyright is very recent, don't you?

    All published works are supposed to be in the public domain, that was the original pretext behind copyright - to incentivise the delivery of original works into the public domain - for the public's benefit.

    Suggesting that copyright protected works are not in the public domain is casuistry we have to thank publishing corporations for.

     

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      nasch (profile), Aug 4th, 2010 @ 6:00pm

      Re: Recent corruption of 'public domain'

      Citation needed.

       

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        Crosbie Fitch (profile), Aug 5th, 2010 @ 1:46am

        Re: Re: Recent corruption of 'public domain'

        Nasch, it stands to reason (you don't need citation - you can read the history yourself).

        Even today, publication is supposed to be delivery to the public (into the public domain) of knowledge, art, facts, ideas, etc. An intellectual work is supposed to enter the public domain from the moment of its publication. Allegedly, this delivery is incentivised by copyright.

        It is only in the 20th century with the growing recognition by the public of the potential to utilise reproduction and communications technology to share and build upon published works that a work's copyright status enters the public consciousness.

        Prior to the 20th century only publishers (or those editors/authors expecting to produce and publish a translation, abridgement, compendium, derivative) were concerned about a published work's copyright, or as we'd put it today, whether the work's fixed expression was in the public domain as opposed to its ideas.

        So it's a very subtle perceptual shift that has occurred recently. Only today with a technologically enabled public is it more important to know whether a work's fixed expression is available to the public than whether its ideas are.

        And that's why it's only in the 20th century that 'public domain' has changed in meaning from 'All published works and everything otherwise known to or accessible by the public' to 'Anything not protected by copyright'.

        With such a gradual transition there is no single point at which the meaning flipped from one to the other.

         

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          nasch (profile), Aug 5th, 2010 @ 9:20am

          Re: Re: Re: Recent corruption of 'public domain'

          Are you talking about a change in law or a change in perception? Because at first it sounded like you meant the former, which is why I asked for a citation.

           

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            Crosbie Fitch (profile), Aug 5th, 2010 @ 10:33am

            Re: Re: Re: Re: Recent corruption of 'public domain'

            Law? The 'public domain' is not part of law. You'll be hard pushed to find any copyright law that even mentions it in passing, let alone that defines it.

            The definition of 'public domain' I'm talking about is the one in common parlance - the one that's changed from 'public possession' to 'not protected by copyright'. The latter is only recently the more popularly inferred - and the one that helps alienate the public from its own culture.

             

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    Steve R. (profile), Aug 4th, 2010 @ 11:57am

    Derivative Reproductions

    Learn something new everyday. I thought the quote below carried particular weight.

    "It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the control,..."

    Lets take the CD/DVD as an example. The content industry claims that copying the contents on a CD/DVD for your personal use requires (out-of-thin-air) additional permissions. The quote above seems to support the concept that an author retains a copyright privilege over the work itself, but in selling a "mechanical" copy property ownership to use the content on the CD/DVD is transferred to the buyer. Therefore, buyers are entitled to mix content for personal use as they fit. Unfortunately the content industry still seems able to create out-of-thin=-air "rights" for themselves that deprive the public of their rights.

     

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    Anonymous Coward, Aug 4th, 2010 @ 1:36pm

    First, Congress wondered about the constitutional validity of such protection. The Constitution allows Congress to protect "writings," and Congress was uncertain as to whether a sound recording could constitute a writing.

    Ok, I call bs here. Congress worrying about the Constitution when contemplating an action? No way!

     

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    Richard C, Aug 4th, 2010 @ 2:11pm

    "effectively locked up for much, much long than they would be"

    *longer

     

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    Tom The Toe, Aug 4th, 2010 @ 2:18pm

    Re:

    "Ok, I call bs here. Congress worrying about the Constitution when contemplating an action? No way!"

    Remember this was in 1909 when there was still a little integrity in Congress.

     

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    me, Aug 4th, 2010 @ 2:37pm

    well...

    So it is state by state then. Is there any list of each state then? And what of states that did not exist?

     

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      Anonymous Coward, Aug 4th, 2010 @ 3:01pm

      Re: well...

      It doesn't matter. Copyright is a federal law, so they would take the most restrictive view, I'm sure.

       

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      Sorpigal, Aug 5th, 2010 @ 6:20am

      Re: well...

      "So it is state by state then. Is there any list of each state then? And what of states that did not exist?"

      You're forgetting a little something called "full faith and credit." I don't imagine it would be difficult to argue in court in one state that the copyright law of another state applies to works created in that state even when copied in another state. This makes things very blurry indeed.

       

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    Joe sixpack, Aug 4th, 2010 @ 3:57pm

    I though the 1976 copyright act said 'screw you' to the state's copyright acts.

     

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    Suzanne Lainson (profile), Aug 4th, 2010 @ 4:07pm

    Recommendation 3

    I read the article. This is what I would do.

    Archivalia: US: Copyright of Sound Recordings of World War I Music: "3. Ignore the law. Note that many companies do exactly that, releasing copies of early recordings confident in the idea that no one cares about the copyright in those recordings anymore. Same thing with the many web sites that include recordings of WWI music. I wrote a blog posting awhile ago called 'Real Life Risk Assessment' (found at http://blog.librarylaw.com/librarylaw/2009/10/real-life-risk-assessment.html ) praising the Judaica Sound Archives for digitizing and making available much of their holdings, in spite of the fact that little is in the public domain. You could do the same."

     

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    average_joe (profile), Aug 4th, 2010 @ 7:26pm

    In part, it's due to the fact that Congress did not include sound recordings in the 1909 Copyright Act. It's actually quite important to understand why they did not do so...

    I think you're making the very mistake that Chief Justice Burger warned not to make in the Goldstein opinion:

    "To interpret accurately Congress' intended purpose in passing the 1909 Act and the meaning of the House Report petitioners cite, we must remember that our modern technology differs greatly from that which existed in 1909. The Act and the report should not be read as if they were written today, for to do so would inevitably distort their intended meaning; rather, we must read them against the background of 1909, in which they were written." Goldstein v. California, 412 U.S. 546, 564 (1973).

    First, Congress wondered about the constitutional validity of such protection. The Constitution allows Congress to protect "writings," and Congress was uncertain as to whether a sound recording could constitute a writing.

    Not sure how uncertain that really was. Chief Justice Burger indicates that the Court held in 1884 that Congress could interpret "writings" to mean pretty much whatever they wanted:

    "By Art. I, s 8, cl. 8, of the Constitution, the States granted to Congress the power to protect the ‘Writings' of ‘Authors.’ These terms have not been construed in their narrow literal sense but, rather, with the reach necessary to reflect the broad scope of constitutional principles. While an ‘author’ may be viewed as an individual who writes an original composition, the term, in its constitutional sense, has been construed to mean an ‘originator,’ ‘he to whom anything owes its origin.’ Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S.Ct. 279, 281, 28 L.Ed. 349 (1884). Similarly, although the word ‘writings' might be limited to script or printed material, it may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor. Ibid." Goldstein v. California, 412 U.S. 546, 561 (1973).

     

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    Paul, Aug 5th, 2010 @ 7:26am

    They seem to have interpreted the "copy" part of "copyright" as a noun like in the publishing industry, rather than a verb (to reproduce) like we usually think of it. In that context it makes sense that audio recordings are not copy and hence not subject to special rights granted to copy.

     

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    btr1701 (profile), Aug 5th, 2010 @ 9:36am

    Amazing

    > First, Congress wondered about the
    > constitutional validity of such protection.
    > The Constitution allows Congress to protect
    > "writings," and Congress was uncertain as
    > to whether a sound recording could constitute
    > a writing.

    Wow. Imagine that. There was actually a time when Congress read the Constitution and felt an obligation to abide by its restrictions on government power, rather than the current situation we have today where Congress does whatever it wants and only if challenged do they look at the Constitution and come up with some way to "interpret" it to justify their actions.

     

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    Jonnan, Aug 5th, 2010 @ 10:44am

    How very odd

    That none of our constitutional 'originalists' on the court have complained about this liberal copyright protections - after all, there *were* other items than just writing around at the time, obviously if the founders had intended anything else to be covered by copyright it would be explicit about it!

    All snark aside, this seems an obvious candidate for a federal supremacy argument; even the 'full faith and credit' clause doesn't really make sense in this context - I'm required to assume that records and judicial judgement in one state are valid in another (Driver's License, alimony, et al) but I'm hardly required to observe the contract laws in one state while residing in another.

    Jonnan

     

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    Jonathan, Aug 5th, 2010 @ 1:26pm

    Public Domain

    The notion of "public domain" is quintessentially a part of Common Law. Indeed, anything "public" is going to be Common Law. So the fact that it is not written anywhere is of no real consequence. A scarlet fish by any other name and all that.

    I do find it interesting that a recording that is out of copyright by the laws of other countries and by international convention can nonetheless be copyright according to a specific State. That would seem to fall under all kinds of restraint of trade and InterState Commerce rules, as it would imply that someone in one of those States could log onto a server in the EU, make the copy, and then download it to their machine.

    Arguably, that may fall under the rules intended to prevent circumvention of things like State and Federal gambling laws, which actually makes such an act quite a serious offense -- were anyone to actually prosecute and win. The significance of the State copyright law might not as important as the restrictions in place to prevent the use of the Internet or other communications networks from bypassing the legal system.

    (I say "might" because the gambling laws are presumably criminal in nature, whereas copyright is a civil offense. I am not even remotely a lawyer and can't even guess as to whether the anti-circumvention laws would be taken as intended to prevent any circumvention.)

    Then, what happens if a person from the EU goes to one of those States with a laptop crammed with copies of those recordings? Can "full faith and credit" apply when - explicitly - the treaty that ensures it does not?

     

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    Jardinero1, Aug 6th, 2010 @ 1:36pm

    The meaning of copy has changed over the years. Today it means "to reproduce" or "duplicate". In the eighteenth century it referred to the finished product on a page which you read.

     

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    Peter Hirtle, Aug 8th, 2010 @ 12:14pm

    You're right - 2067

    Now you know why I had to make the copyright chart in the first place - even I can't remember all the dates. U.S. sound recordings made before 1972 enter the public domain in 2067 at the earliest, except in California, where some will enter the public domain in 2047.

     

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