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.
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.