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Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives

Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives

Commissioned for and sponsored by the National Recording Preservation Board, Library of Congress

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by June M. Besek
March 2009

Copublished by the Council on Library and Information Resources and the Library of Congress.

This report was completed in 2008.

Copyright 2009 by the Council on Library and Information Resources. No part of this publication may be reproduced or transcribed in any form without permission of the publishers. Requests for reproduction or other uses or questions pertaining to permissions should be submitted in writing to the Director of Communications at the Council on Library and Information Resources

The National Recording Preservation Board
The National Recording Preservation Board was established at the Library of Congress by the National Recording Preservation Act of 2000. Among the provisions of the law are a directive to the Board to study and report on the state of sound recording preservation in the United States. More information about the National Recording Preservation Board can be found at

About the Author



1. Introduction

2. Legal Background: Federal Law
2.1 Federal Copyright Law
2.1.1 Protected Works
2.1.2 Term of Protection
2.1.3 Rights under Copyright
2.1.4 Exceptions and Limitations
a. Fair Use: § 107
b. Library and Archives Exceptions: § 108
c. Distance Education: § 110(2)
2.1.5 Musical Works
2.1.6 Sound Recordings
2.1.7 Dissemination via Interactive On-Demand Streaming over the Internet: Copyright-Protected Works
a. Sound Recordings
b. Musical Compositions
c. Other Types of Underlying Works
2.1.8 Remedies
2.1.9 Orphan Works and Orphan Works Legislation
2.2 Federal Copyright Law: Criminal Violations
2.3 Federal Antibootlegging Law
2.4 Federal Antibootlegging Law: Criminal Violations

3. Legal Background: State Law
3.1 State Criminal Statutes
3.2 State Civil Law
3.2.1 Unfair Competition/Misappropriation
3.2.2 Rights of Privacy and Publicity
3.2.3 Common Law Copyright
3.2.4 State Civil Law Summary

4. Library Use of Pre-1972 Recordings
4.1 Applying the Law to Specific Examples
4.1.1 Bootleg Recordings
4.1.2 Recordings of Radio Broadcasts
4.1.3 Interviews
4.1.4 Recording of Live Performance (Foreign Origin)
4.2 Streaming of Pre-1972 Recordings: Are Libraries Privileged?
4.2.1 Claims under Federal Copyright Law
4.2.2 Claims under Federal Antibootlegging Law
4.2.3 Claims under State Criminal Laws
4.2.4 Claims under State Common Law
4.2.5 Claims under Foreign Law
4.3 Preservation of Pre-1972 Recordings: Are Libraries Privileged?
4.4 Assessing the Risk: Questions to Ask

5. Conclusion

Appendix A: State Criminal Laws

Appendix B: Some Statutes Concerning Rights of Publicity

Appendix C: State Civil Law Concerning Pre-1972 Sound Recordings

About the Author

June M. Besek is executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School, where she conducts research on copyright and related laws, particularly as they relate to new technologies. She teaches seminars on Authors, Artists and Performers, and on Advanced Topics in Copyright. She is the author of many articles on copyright law issues. Ms. Besek was a member of and legal advisor to the Section 108 Study Group, convened by the Library of Congress to reexamine copyright exceptions for libraries and consider recommendations for change in the digital environment. The Section 108 Study Group Report was published in March 2008. She is also a coauthor of the four-country report, International Study on the Impact of Copyright Law on Digital Preservation (July 2008). Ms. Besek holds a law degree from New York University School of Law and a B.A. in economics from Yale University.


The author thanks Robert W. Clarida, Lolly Gasaway, Jane C. Ginsburg, Peter Hirtle, I. Fred Koenigsberg, Philippa Loengard, and Eric Schwartz for their helpful comments on previous drafts of this report. Research assistance from Columbia Law School students Vigdis Bronder (’07), Harris Cohen (’07), Caitlin Grusauskus (’09), Jennifer Jacobs (’09), Sidne Koenigsberg (’06), Joseph Lasher (’07), Suhna Pierce (’09), Michelle Rutherford (’08), and Kathleen Kaufmann Shih (’06) is gratefully acknowledged.


Unpublished sound recordings are among the most culturally important resources entrusted to libraries and archives. Radio broadcasts of news and entertainment programming, oral histories and interviews, and “live” musical and literary performances are of ever-increasing interest to scholars and the general public. Many of these recordings are unique, and in nearly all cases, the primary responsibility for preserving unpublished collections eventually falls to publicly funded institutions. With this responsibility comes an inevitable requirement to reformat the recordings to digital files for preservation and public access.

Because of the broad availability and ease of use of modern digital technologies, the public generally expects ready access through the Internet. Within the archival community, this position is reinforced by the requirements of preservation project grant funders that library collections in all formats ought to be as easily accessible as podcasts or scanned books. While digital technologies make access relatively easy, there are major legal impediments to the delivery of sound recordings preserved by the nation’s libraries and archives to home computers and other digital access devices. U.S. laws also create fundamental barriers to accepted digital preservation practices. Federal copyright law specifies that no more than three copies may be made of a protected work. Yet, three copies are simply not enough. Audio, as well as still- and moving-image preservation, often requires creation of multiple smaller files for public use, and best practices recommend storage of multiple copies of files in different locations.

Identifying exactly which laws address the preservation and public use of sound recordings is a tremendous burden for librarians and archivists. If a recording was made in the United States before February 15, 1972, the date when U.S. recordings were first protected by federal copyright law, determining rights holders and applicable laws can be positively vexing. In the present circumstance, almost all pre-1972 recordings will be controlled by myriad state laws and common law until the year 2067.

In the pages that follow, June Besek lucidly and thoroughly examines the laws applicable to ownership rights related to pre-1972 unpublished recordings. Professor Besek pierces the U.S. legal fog to reveal a dense thicket of federal, state, and common laws that form impractical, and even damaging, barriers to preserving America’s recorded-sound history and to providing access beyond the physical walls of libraries and archives. This outstanding study brings much-needed clarity to an enormously complex subject by outlining the many laws applicable to the rights status of a recording and by examining the application of those laws to nine categories of unpublished sound recordings.

My colleagues and I are enormously grateful to Professor Besek for this clear and well-organized analysis of the copyright status of pre-1972 unpublished audio. Regrettably, however, the findings of her analysis are dismaying for a number of reasons. In light of general disagreements among archivists, librarians, and rights owners over what revisions are needed to Section 108 of the U.S. Copyright Law, some fundamental preservation practices, such as making more than three digital copies of at-risk sound recordings, will continue to be technically illegal. In many cases, the laws governing sound recordings are, in Professor Besek’s words, “inconsistent and uncertain.” Because there was no national copyright registration process for sound recordings prior to 1972, a significant number of the recordings made before that year are “orphan works,” existing in a limbo in which the identification of proper rights holders is exceedingly difficult.

The unnecessarily complex legal status of pre-1972 sound recordings serves the best interests of no one—users and rights holders alike. Professor Besek outlines the full scope of these issues for librarians and archivists for the first time. Until legislation and/or forward-thinking license agreements begin to clear the legal thicket to allow preservation and access to our audio heritage, this body of our cultural heritage remains at risk. Without new laws or licenses, those entrusted to preserve sound recordings of great aesthetic, historic, and cultural value face a future where their efforts will remain a virtual whisper—heard and appreciated by only a few.

Deanna B. Marcum
Associate Librarian for Library Services
Library of Congress


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