Historic audio at risk, thanks to bad copyright laws
By Matthew Lasar <http://arstechnica.com/author/matthew-lasar/>
Ars Tecjnica
Oct 4, 2010
http://arstechnica.com/tech-policy/news/2010/10/report-copyright-laws-put-americas-sound-heritage-at-risk.ars
The Library of Congress has released a sobering new report
<http://www.clir.org/pubs/abstract/pub148abst.html> on the state of
digital audio preservation in the United States. The Library's National
Recording Preservation Board
<http://www.loc.gov/rr/record/nrpb/registry/> concludes that most of the
nation's audio libraries are ill-equipped to handle the complex array of
streams and digital formats by which music and other recorded sounds are
released today.
"It is relatively easy to recognize the importance of recorded sound
from decades ago," the survey notes. "What is not so evident is that
older recordings actually have better prospects to survive another 150
years than recordings made last week using digital technologies."
But even those older artifacts face the prospect of being lost to
posterity because of our nation's copyright laws. So concludes /The
State of Recorded Sound Preservation in the United States: A National
Legacy at Risk in the Digital Age/ (PDF
<http://www.clir.org/pubs/reports/pub148/pub148.pdf>).
"Were copyright law followed to the letter, little audio preservation
would be undertaken," the report warns. "Were the law strictly enforced,
it would brand virtually all audio preservation as illegal."
Back to the future
The main problem is that for decades the intellectual property rights of
most sound recordings were covered not by federal law, but by a
complicated matrix of state statutes and judicial precedents. When
Congress finally did extend federal authority
<http://www.copyright.gov/title17/92chap3.html> over these works via its
late twentieth century Copyright Acts, it put the annulment date for the
earlier rules at 2067.
"Thus, a published US sound recording created in 1890 will not enter the
public domain <http://copyright.cornell.edu/resources/publicdomain.cfm>
until 177 years after its creation," the study observes, "constituting a
term of rights protection 82 years longer than that of all other forms
of audiovisual works made for hire."
This, of course, creates huge challenges for audio librarians and
archivists, which the report outlines in painful detail.
Great expectations
Prior to the digital revolution, the public assumed that the only way to
sample a library's audio fare was to actually visit the institution and
listen to recordings via record players, cassette machines, and
headphones. Today, however, citizens expect to sample audio via some
kind of Web site.
It is "virtually impossible," the report insists, "to attract grants and
donors to support preservation of collections that will not be
accessible once preservation occurs."
This puts libraries in a bind. "Because institutions frequently do not
hold rights to the sound recordings in their collections and cannot make
the material accessible," /The State of Recorded Sound/ contends, "the
likelihood increases that they will find it even more difficult to
attract the resources needed to preserve important collections in the
first place."
Some archivists persevere in posting audio materials online, but they're
uncertain as to whether their actions are covered by fair use (the
question of whether fair use protections for audio/video were available
in New York State, for example, was unclear until a court ruled
<http://cyberlaw.stanford.edu/node/5833> in 2008 that a documentary film
could use 15 seconds of John Lennon's song /Imagine/).
Other institutions fear to move ahead and release materials without
having researchers armed with copyright expertise, which is often
expensive or difficult to find. And so:
A scholar researching the history of vaudeville might have a strong
interest in hearing recordings made by the first
vaudevillians---recordings that came before the recording horn.
These performers may have been headliners in their time, but today
their names are virtually unknown. While scholarly interest in these
recordings is high, their economic value to the property holder is
negligible. However, legal restrictions governing access to a
cylinder produced in 1909 are the same as those governing a compact
disc made in 2009, even though it is highly unlikely that the 1909
recording has any revenue potential for the rights holder.
Meanwhile, the ease with which digital audio files can be shared has
created a generation of rights holders who are reluctant to release
their works to the public, even though the chances of their making much
more money from them are small. Successive generations of record label
owners are instead just letting their releases go out of print.
One study found that, out of thousands of recordings produced between
1890 and 1964, rights holders have only made available 14 percent of the
historic recordings that they control.
Copies
Even more frustratingly, while the Copyright Act allows libraries and
archives to make copies of their possessions, these grants were /not/
extended to pre-1972 sound recordings created in the United States. Even
in the case of post-1972 recordings, libraries stand on shaky ground
when it comes to preservation copying.
For example, Section 108
<http://www.copyright.gov/title17/92chap1.html#108> of the Copyright Act
allows libraries to make three copies of a published, protected work
"for replacement purposes." The law designates these as a "master copy,"
a "service copy," and a "submaster copy" used to generate service copies.
But the law needs a serious technical update. As the new Library of
Congress study observes, "Application of digital preservation
technologies can require producing multiple interim/buffer copies
generated by the various computers, audio workstations, and servers
involved in the digital preservation workflow. If the term 'copies' is
narrowly defined, adherence to best practices for even routine digital
preservation is both illegal and impossible."
Solutions
The National Recording Preservation Board gives five recommendations to
fix these problems. Not surprisingly, fix number one is for Congress to
repeal Section 301(c) of the Copyright Act, which establishes 2067 as
the federal copyright date.
Second, bring copyright protection for audio into sync with Europe---a
term of 50 to 75 years at the maximum.
Third, decriminalize the use of recordings for which no rights holder
can be found, otherwise known as "orphan works."
Fourth, make it possible for third parties to reissue "abandoned
recordings"---audio releases that have gone out of print for long
periods of time. In those instances, rights holders should receive
reasonable compensation.
Finally, allow libraries to more easily make audio copies and share files.
"Copyright reform is not the sole area in which congressional action is
needed," the NRPB study warns, "but it remains the key solution to
preserving America's recorded sound history, protecting ownership
rights, and providing public access."
--
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George Antunes, Political Science Dept
University of Houston; Houston, TX 77204
Voice: 713-743-3923 Fax: 713-743-3927
Mail: antunes at uh dot edu
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