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

Latest Congressional Attempt To 'Fix' Mobile Phone Unlocking Just Punts The Issue Until Later

Politics

from the not-a-good-idea dept

Ah, Congress. Even when they’re doing something, they’re good at not really accomplishing much. We’ve already written about some various proposals on Capitol Hill to respond to the White House’s request for Congress to make phone unlocking legal, contrary to the Librarian of Congress’ decision to remove it from DMCA exemptions. So far, as we noted, all of the bills really failed to tackle the real issue, and some were just poorly thought out entirely. At the end of that piece, we noted rumors that Rep. Goodlatte was introducing a bill. Late Monday, Senator Leahy (with Senators Grassley, Franken and Hatch) introduced his bill and it’s believed to be the same one that Goodlatte is likely to push in the House. Since Leahy and Goodlatte lead the Judiciary Committees in the Senate and the House, it has to be assumed that this bill has the pole position in being the one likely to get traction.

If so, it’s a disaster. It does nothing to fix the problem. Worse, it just kicks the can down the road in the hopes that people will forget about it. Here’s what it does:

1. It tells the Librarian of Congress to “repeal” the existing failure to exempt phone unlocking and replace it with the exemption that was put in place back in the last rulemaking in 2010 (which was a weaker unlocking rule than the one before it). That “new” / “old” ruling will stick around until the next rulemaking in 2015 when the Librarian might decide to dump it again.
2. Within one year, the Librarian of Congress, with the help of the Register of Copyrights, is supposed to determine whether or not to extend the exemption further to things like tablets (as requested by the White House).
3. It explicitly states that nothing in the bill changes anything of importance.

In other words, “oh, gosh, someone noticed how totally screwed up the system is, and how the walls are crumbling, and let’s just patch up this one little hole here with a bit of spackle.” This is not a solution. This is a total punt by Congress. The other bills proposed so far have been bad, but this is worse.

Congress has a real chance to fix something here, but so far has chosen not to actually take a position of leadership and do anything. How typical.

Filed Under: bob goodlatte, congress, copyright, dmca, librarian of congress, patrick leahy, unlocking

Copyright Royalty Board Found Unconstitutional; Appeals Court Magically Makes It Constitutional Again

Legal Issues

from the say-what-now? dept

We’ve written a few times about constitutional challenges to the legitimacy of the Copyright Royalty Board. As we noted from the beginning, it’s pretty clear that, as a matter of fact, the CRB is unconstitutional in that it violates the Appointments Clause. That clause requires judicial appointments to be made only by the President, the courts or the heads of executive branch departments. However, the CRB is appointed by the Librarian of Congress, which you might notice is a part of the legislative branch, not the executive branch, and the Librarian of Congress is a position at a much lower level than a “department head” required under the Appointments Clause. If all that seems pretty technical, you’re right — which is also why we thought that the court cases pursuing this line or reasoning were a waste of time. At best, we said, the courts would agree that the CRB was unconstitutional, and then just have a department head “re-appoint” the same judges.

Back in February, when the appeal to one of these cases was being heard — the one brought by Intercollegiate Broadcasting Services (IBS), who represents a bunch of college radio stations — we noted that from the questions raised it seemed clear that the appeals court agreed that, on a technicality, the CRB was unconstitutional, but its main interest was in figuring out how to “minimize” the impact of admitting that a ton of royalty rates have been set and enforced based on an unconstitutional process. And, indeed, that analysis turned out to be entirely accurate.

The ruling has come out and the DC circuit appeals court has agreed that the CRB is unconstitutional… but immediately “fixes” the problem with one change and one statement. The “statement” is that even though no one really considered the Librarian of Congress a “department head” as described in the Appointments Clause, the court now says that the position is, in fact, a Department head. And the one change is that by saying that the Librarian of Congress can not just appoint the judges, but also fire them… suddenly everything is good again:

But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause… To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd… by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains.

Because of this magical sleight of hand, the appeals court decides that it need not even consider the question of whether the crazy rates that the CRB has set up in the past (when it admits they were unconstitutional) should be reviewed. In other words, this one turned out more or less as expected: even if it was obvious to nearly everyone that the CRB is unconstitutional, a little employment jujitsu suddenly makes it constitutional again. There are all sorts of reasons to be annoyed at the CRB and the royalty setting process — but the arguments over constitutionality were a sideshow all along.

Filed Under: appointments clause, constitution, copyright royalty board, librarian of congress