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6. Conclusion
Preservation efforts with respect to pre-1972 sound recordings
are hampered by legal restrictions. For example, a work is
considered to be in an "obsolete" format, eligible for preservation
copying, only if the device necessary to play it is no longer
"commercially available." Under this formulation, even LP and
78-rpm records are not eligible for copying as "obsolete,"
since turntables can still be purchased, even though they are
no longer commonly used.
Preservation efforts are also hindered by significant ambiguities
in the law. State laws govern copying and dissemination of
pre-1972 sound recordings. A detailed survey, to be conducted
by the National Recording Preservation Board, will likely clarify
the scope of state criminal laws, but given the amorphous nature
of common law and the variations among states, considerable
uncertainty about what is allowable under the civil law of
the various states is likely to remain, even after the survey
is completed.
How should a library or an archives proceed with its preservation
mission in the face of such obstacles? One way is to identify
and design projects where the risk of infringing on third-party
rights (and the risk of suit) is relatively low. For example,
a project might make digital copies for long-term preservation
but not for current dissemination; focus on older sound recordings,
on those with no identifiable right holder, or on those with
underlying works in the public domain; establish an "opt-out"
mechanism for right holders; stream only small portions of
sound recordings; stream only to specific locations, such as
other libraries or archives; and/or stream only to specific
users, such as preauthorized music scholars. Some combination
of such features could reduce the risk of commercial harm to
the right holder and increase the likelihood that the activity
would be deemed privileged if a claim were to be asserted.
This approach can be time-intensive, however, as it requires
careful development of projects and regular monitoring to ensure
that project guidelines are adhered to and, in many cases,
legal and factual research to determine the copyright status
of subject works.121
A library must carefully consider the degree of risk that
it wishes to undertake (e.g., whether it wants to stretch the
limits of the law). The Library of Congress, for example, is
likely to come under closer scrutiny than other institutions
do, both by libraries and archives searching for guidance in
their own preservation and dissemination programs and by right
holders whose works are used without express authorization.
The Library of Congress has traditionally been very cognizant
of copyright rights in serving its patrons (it is, after all,
home to the Copyright Office) and presumably will continue
to be so.
A risk-management approach may provide a useful means of preserving
or disseminating some works and a possible basis for moving
forward with limited pilot programs to help determine the administrative,
technical, and legal feasibility of digital preservation initiatives.
However, a comprehensive program to digitize and stream pre-1972
sound recordings would likely require some combination of obtaining
licenses,122 entering
into other cooperative agreements with right holders,123 and
legislative change.
Legislative change is critical to enable responsible and efficient
digital preservation and dissemination activities with respect
to pre-1972 sound recordings, as even our limited review of
state laws demonstrates. The necessity for legislative change
to enable preservation activities is not limited to pre-1972
sound recordings: it cuts across a wide range of other copyright-protected
works. The copyright law has historically granted special privileges
to libraries and archives to enable preservation of our cultural
and intellectual heritage, and there is every reason to believe
that it will continue to adapt to preserve these privileges
in the digital world, balancing the needs of libraries and
archives with the legitimate interests of right holders. A
new study group has been formed to consider the exceptions
for libraries and archives in the copyright law and to make
recommendations by mid-2006 for possible changes to reflect
new technologies.124 As
the effort to reformulate library privileges for the digital
age moves forward, the focus of attention is likely to be the
special privileges granted to libraries in § 108 of the copyright
law. Libraries would, for example, benefit from more flexible
standards for digital copying that would allow them to keep
pace with evolving best practices for digital preservation.
It is important to bear in mind, however, that changes to §
108 will not resolve state law issues. Those issues will have
to be addressed by altering, in some measure, the "carve out"
from federal preemption that § 301(c) of the Copyright Act
accords to state laws related to pre-1972 sound recordings.
FOOTNOTES
121 For example, identifying
the copyright status of works, their country of origin, and
when they were published—not to mention their commercial availability—are
time-consuming tasks.
122 Entering into licenses to
permit streaming would provide certainty with respect to certain
works, but could be expensive. It may also require paying for
uses that, as a matter of public policy, a library should be
entitled to make. Given the current uncertainty in the industry
concerning issues related to on-demand streaming of copyrighted
works, it is impossible to assess the potential cost of such
licenses.
123 Collaborative preservation
agreements with sound recording copyright owners are another
possibility. There is some precedent for this in the motion
picture industry, and it would have the possible advantage
of achieving library access to, and preservation of, copies
of sound recordings that are currently under the exclusive
control of record companies.
124 "Section 108 Study Group
Convenes to Discuss Exceptions to Copyright Law for Libraries
and Archives," (May 13, 2005), at http://www.loc.gov/today/pr/2005/05-121.html.
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