A Summary of a Report Published by the Council on Library and Information Resources and the Library of Congress
Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives
By June M. Besek
This report addresses the question of what libraries and archives are legally empowered to do to preserve and make accessible for research their holdings of unpublished pre-1972 sound recordings. The report's author, June M. Besek, is executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School.
Unpublished sound recordings are those created for private use, or even for broadcast, but that have not been distributed to the public in copies with the right holder's consent. Examples include tapes of live musical performances or of interviews conducted as part of field research or news gathering. Such recordings may find their way into library and archive collections through donations or purchase. Some may be the only record of a particular performance or event, and therefore may have considerable cultural and historical significance. The rights for use of unpublished recordings are distinct from those for use of commercial sound recordings, which are made with the authorization of rights holders and are intended for reproduction and sale to the public.1
The year 1972 is significant because most sound recordings made before then are covered by a patchwork of state laws, rather than by federal copyright law. Libraries and archives seeking to copy their historical recordings in order to preserve them or make them accessible must therefore consult the relevant state laws. State copyright laws, however, are far less clear-cut than federal law.
The challenges for unpublished sound recordings include:
- determining which laws govern a recording;
- determining whether the recording embodies "underlying works"—musical compositions, scripts, etc.—and, if so, determining the copyright status of those works; and
- reconciling relevant laws with best practices for digital preservation. This is problematic even for works subject to federal copyright law; for example, the three-copy limit for replacement and preservation copies allowed by section 108 of the Copyright Act is incompatible with best practices for digital preservation, which requires multiple copies.
Using examples of specific types of sound recordings, the Besek study (1) describes the different bodies of law that protect pre-1972 sound recordings, (2) explains the difficulty in defining the precise contours of the law, and (3) provides guidance for libraries evaluating their activities with respect to unpublished pre-1972 sound recordings.
Federal Copyright Law
Although federal copyright law does not apply directly to most pre-1972 sound recordings, it is relevant in three respects: (1) some pre-1972 sound recordings of foreign origin are governed by federal copyright law; (2) many sound recordings embody musical or other underlying works that are protected by federal copyright law; and (3) some states may refer to federal copyright law when evaluating state law claims relating to pre-1972 sound recordings. Besek provides an overview of relevant aspects of federal copyright law as they apply both to sound recordings and to underlying works, including special exceptions and limitations for libraries and archives.
State Law Protection
State law protection for sound recordings can last until 2067, at which time federal law preempts all state law protection. To provide insight into how states protect rights to sound recordings, the author examined the law in California, Illinois, Michigan, New York, and Virginia. In those states, protection falls under criminal law governing the unauthorized reproduction of sound recordings and antibootlegging laws, rights of publicity, and other civil law.
Library Use of Pre-1972 Recordings
How should a library or an archive navigate the legal complexity to determine what it may do with a particular recording? Besek responds:
"In any such determination, one begins by evaluating whether the proposed activity is legally objectionable . . . is there any possible claim, and by whom? A necessary corollary of that inquiry is the relevance of copyright exceptions, and more broadly, the special role of libraries. Then, assuming there is a possible claim, one must consider the likelihood that a right holder would assert it."
Citing nine examples of unpublished sound recordings, including bootleg recordings, radio broadcast recordings, interviews, and a recording of a live performance of foreign origin, Besek poses a series of questions that enable the reader to assess whether various types of activity could be the basis for a legal claim. Such activity includes copying a recording in digital form to enable streaming, streaming a recording (i.e., transmitting or performing it without providing the user a retention copy), and copying a recording in digital form for preservation purposes.
Besek concludes that although case law is sparse, "in most cases, it is unlikely that a library would be liable under federal or state law for preservation copying or limited streaming for research and scholarship of pre-1972 sound recordings that were never commercially distributed." "Still," she continues, "in some cases libraries do risk liability, even if the possibility that a lawsuit would be filed—and would ultimately be successful—is small." Consequently, it is impossible to create categorical rules for use "without reference to when, where, and by whom they were created and under what circumstances, by whom they are currently owned, and what they contain." She recommends that sound recordings "be addressed individually or in groups, where appropriate, to evaluate whether there are legal risks to the library in streaming and how those risks can be minimized."
Some of the uncertainty regarding special library exceptions may be addressed as the effort to reform section 108 proceeds. In the meantime, this report offers practical advice to help libraries and archives navigate the maze of federal and state law governing unpublished pre-1972 sound recordings.
1 Commercial recordings are addressed in a 2005 CLIR report, Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives, by June Besek, available at http://www.clir.org/pubs/abstract/pub135abst.html.
More About this Report
Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives.
June M. Besek. March 2009.
ISBN 978-1-932326-32-1. 85 pages.
Commissioned for and sponsored by the National Recording Preservation Board, Library of Congress. Copublished by the Council on Library and Information Resources and the Library of Congress. The text of the report is available free on CLIR's Web site at http://www.clir.org/pubs/abstract/pub144abst.html. Print copies can be ordered at this URL for $25 per copy plus shipping.