Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives

A Summary of a Report Published by the Council on Library and Information Resources and Library of Congress

Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives

By June Besek
December 2005

This summary was written by Kathlin Smith


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 pre-1972 commercial sound recordings. The date is significant because commercial sound recordings made before 1972 are covered by a patchwork of state laws, rather than by federal copyright law. It is thus state laws that apply to libraries and archives seeking to copy their historical recordings in order to preserve them. But state laws are far less clear-cut than federal copyright law. States may protect copyright through criminal, common, or civil law. “Given the amorphous nature of common law and the variations among states, there is considerable uncertainty about what is allowable,” writes the author. This uncertainty is made worse by the advent of new technological means of distributing music.

Besek, who is executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School, outlines the basic contours of copyright law as it relates to pre-1972 sound recordings. Sections cover U.S. copyright law, state law protection for pre-1972 sound recordings (a topic that is expanded in an appendix to the report), digital preservation and dissemination of sound recordings, and technological protection issues.

U.S. 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. She addresses rights under copyright, privileges and exceptions (such as fair use, special library privileges, first sale doctrine, distance education, and ephemeral copying). She discusses the special considerations for musical works and sound recordings.

State Law Protection

To provide insight on 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 record piracy laws, common law rights (which are based on judicial decisions rather than statutes), or, in California, a civil statute granting ownership rights in sound recordings. The only cases relating to rights protection that Besek found were those involving sound recordings that had been made without authorization and were being sold for profit. Because there were no cases involving nonprofit uses of pre-1972 sound recordings, these states appeared to have little precedent that would inform the actions of libraries and archives. (A more extensive survey of state laws is being done on behalf of the National Recording Preservation Board to provide guidance on this question.)

State law protection can last until 2067, at which time federal law preempts all state law protection for sound recordings. In California, protection lasts only until 2047 by state statute.

Digital Preservation and Dissemination of Sound Recordings

Besek addresses library preservation and dissemination activities with respect to both copyright-protected works and those that have no protection under federal law. She discusses several ambiguities in section 108 (special library privileges), such as what may be considered “reasonable effort” in ascertaining that an unused replacement cannot be obtained at a fair price, thus allowing the library or archive to copy a work. She explores some of the questions relating to whether collaborative digital preservation projects are permissible. Dissemination through Internet streaming of copyrighted works is also covered, including whether streaming of sound recordings qualifies as fair use.

Technological Protection Issues

The Digital Millennium Copyright Act (DMCA) prohibits the act of circumventing technological access controls to a work protected by copyright, and the trafficking of devices that circumvent technological access or rights controls. The latter would include mechanisms that restrict copying the work or playing it in a particular environment without authorization. There is no exception to these laws for archiving, nor is there a general “fair use”-type exception written into the statute. However, the Copyright Office revisits the law every three years and has the authority to recommend changes if it finds that the law impedes users of any particular classes of copyrighted works from making noninfringing uses of those works. The author notes, “Technological protections are a potential hindrance to certain library preservation and replacement activities and may require a legislative solution rather than resort to the limited relief that the Copyright Office can provide through the rule-making mechanism.” However, she adds, “technological measures do not appear to be an obstacle to preservation of pre-1972 sound recordings, since such measures have been employed on phonorecords only recently with the advent of digital technology, and even now are not widely used.”

Conclusion

The author concludes that it is unlikely that activities within the bounds of what federal copyright law permits under fair use and special library privileges “would be actionable under state law with respect to pre-1972 sound recordings.” But more research-and new legislation-are needed, she writes. “A survey of state laws will reduce the uncertainty concerning the scope of state law protection and likely suggest ways to minimize the risk of liability in connection with digital preservation and dissemination of pre-1972 sound recordings. But our research suggests that even a detailed survey will not completely resolve these issues. New legislation to establish a library privilege to preserve and appropriately disseminate these materials would be very desirable.”


More About this Report

Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives
by June Besek
.
December 2005. ISBN 1-932326-23-5. 54 pages.

Commissioned for and sponsored by the National Recording Preservation Board, Library of Congress. Copublished by CLIR and the Library of Congress. The text of the report is available free on CLIR’s Web site at https://clir.wordpress.clir.org/pubs/abstract/pub135. Print copies can be ordered at this URL for $20 per copy plus shipping.