1.0 Introduction

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Copyright © 2008 June M. Besek, Kernochan Center for Law, Media and the Arts, Columbia Law School.

Unpublished sound recordings, such as taped interviews, oral histories, and archival copies of concert recordings (authorized or “bootlegged”) or of old radio broadcasts pose particular challenges for librarians.¹ Some libraries have many such recordings in their collections. Consistent with their mission, libraries want to preserve these works for future generations and to make them available to researchers and scholars. These activities, however, are subject to intellectual property rights in the sound recordings. Experts believe that “the future of audio preservation is in the digital arena.”² Converting sound recordings into digital form, and maintaining them in that form, involves making numerous copies. Streaming them to remote users involves, among other things, making server copies and publicly performing the recordings. These are activities that would involve the exercise of copyright rights if the sound recording or any works it contains were protected by copyright.

What makes sound recordings so complicated is that they were not eligible for federal copyright protection until February 15, 1972. Pre-1972 sound recordings are governed by different, overlapping bodies of federal and state law. The difficulty is heightened by the fact that in most cases the law regards sound recordings as conceptually separate from the underlying material embodied in them—musical compositions, scripts, etc.—and that the underlying material, which may be protected by copyright, must be considered separately in determining the scope of permissible use of the recording.

Even for works governed entirely by federal copyright law, libraries confront a range of issues in preserving works and serving users. For example, how can the three-copy limit for replacement and preservation copies allowed by section 108 of the Copyright Act be squared with best practices for digital preservation, which require multiple copies? Digital preservation and replacement copies made under section 108 must be used on the library’s premises, but how should “premises” be defined? To what extent does fair use permit library activities that do not fall within the section 108 exceptions? Individual institutions and library associations have developed guidelines and practices to comply with the copyright law. New technologies continue to present challenges that make it necessary periodically to review those guidelines and practices. The Copyright Act’s exceptions for libraries and archives in section 108 are themselves under examination for possible legislative amendment.

But to what extent are copyright exceptions and library practices developed in connection with works protected under federal copyright law relevant to sound recordings not protected by federal copyright law? Are these recordings protected at all by state laws? If so, what is the scope of that protection? To the extent that libraries have exceptions from federal copyright law, can they rely on those exceptions for sound recordings governed by state law? Is state law more or less restrictive than federal law?

There are no easy answers to these questions. Using examples of particular types of sound recordings, this 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) attempts to provide some guidance for libraries evaluating their activities with respect to one particular category of sound recordings: unpublished pre-1972 sound recordings.

Background. A sound recording is the “fixation of a series of musical, spoken, or other sounds.”³ A sound recording can embody another work (referred to as the “underlying work”), such as a musical composition, a play, or a literary work such as a novel. February 15, 1972, is a key date for sound recordings: sound recordings first “fixed,” or recorded, on that date or thereafter are protected by federal copyright law. U.S. sound recordings fixed prior to that date are protected only by state law.

This is the second of two studies concerning library reproduction and dissemination of pre-1972 sound recordings. The 2005 study, Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives⁴ addressed commercial sound recordings, i.e., sound recordings fixed with the authorization of the right holders (usually the record producer and the performers) and intended for reproduction and sale to the public. This study addresses a different category or works: unpublished sound recordings, i.e., recordings that were created for private use, or even for broadcast, but that were not distributed to the public in copies with the right holder’s consent.⁵ Examples of such recordings include bootlegged, or even authorized, tapes of live musical performances such as rock concerts or operas, tapes of interviews conducted as part of a journalist’s news gathering, or recordings of old radio broadcasts made for archival purposes. Such unpublished recordings may find their way into library collections, principally through donations to the library or purchase by the library. In some cases, the recordings owned by libraries may be the only extant recordings of a particular performance or event, and therefore have considerable cultural and historical significance.⁶

A key assumption made in this study is that the library will not charge a fee for access to the pre-1972 recordings or derive any direct or indirect commercial advantage (including fundraising) from their use.⁷ This assumption is discussed in detail in section 4.2.

Examples. Several examples of sound recordings in libraries’ collections facilitate the discussion that follows. It is assumed for purposes of this study that the recordings were made in the United States unless otherwise noted.

Some of these recordings, such as the bootleg recordings in the first two examples, were initially made without authorization. Others were initially made with authorization, but for a particular purpose that did not include the public distribution of copies.

Legal framework. The legal issues involved in this study are complex, because there are relevant civil and criminal laws, on both the federal and state levels. Criminal law defines public wrongs, punishable by fines, probation, imprisonment, or a combination thereof. It is usually enforced by a public official such as a district attorney or prosecutor. Criminal law is set out in statutes, and any alleged wrongdoing must fit within a strict interpretation of the statute to be a crime. In this respect, criminal law is said to be “narrowly construed.” Civil law governs private wrongs, i.e., disputes between private parties, based on claims that an individual or organization wrongfully harmed another’s person or property. Civil cases are usually brought by private parties seeking remedies such as damages, injunctions, or both. Civil law can be defined in statutes, but it can also be “common law,” i.e., judge-made law developed in response to cases that have arisen over the years and to which people refer as precedent when similar cases arise.

Certain uses of pre-1972 sound recordings can implicate federal copyright law or federal antibootlegging laws (civil and criminal), state criminal laws against record piracy and bootlegging, and state civil law—usually common law—governing torts such as unfair competition, misappropriation, rights of privacy and publicity, and “common law copyright.”

This report focuses on the implications of library use of pre-1972 unpublished sound recordings under United States law, state and federal. To the extent that a library were to stream such a recording to, or distribute it in, a foreign country, the law of that country may apply. Foreign law considerations are addressed in section 4.2.5.

Overview of this report. Sections 2.0 and 3.0 provide descriptions of the principal bodies of federal and state law, respectively, that relate to protection for pre-1972 sound recordings. Section 4.0 looks at the law in the context of the examples. Section 4.1 assesses the extent to which the unpublished recordings described here are legally protected and who the likely right holders are, and sections 4.2 and 4.3 consider whether libraries may copy such recordings for digital preservation and disseminate them to users through Internet streaming. This study focuses on library dissemination by means of streaming, rather than downloading, recordings by library users, since streaming was perceived as a means by which libraries could meet the needs of users in a manner less threatening to right holder interests than providing end user downloading. Section 5.0 contains the conclusions.

FOOTNOTES

¹ For simplicity—and with apologies to archivists—this report will refer at times only to “libraries” and “librarians,” but those terms should be read to embrace archives and archivists, to which it is equally applicable.

² Paul Kingsbury, Capturing Analog Sound for Digital Preservation: Report of a Roundtable Discussion of Best Practices for Transferring Analog Discs and Tapes 2 (CLIR, March 2006), available at https://www.clir.org/pubs/reports/pub137/pub137.pdf.

³ “Sound recordings” are defined in the Copyright Act as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes or other phonorecords, in which they are embodied.” 17 U.S.C. § 101 (2000). U.S. copyright law is contained in Title 17 of the United States Code. All statutory references in this paper are to sections of Title 17, unless otherwise noted.

⁴ June M. Besek, Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives (CLIR Dec. 2005), available at https://www.clir.org/pubs/reports/pub135/pub135.pdf. The legal background material concerning federal copyright law in this report is largely derived from the earlier report.

⁵ Under federal copyright law, a work is considered “published” when copies are distributed to the public “by sale or other transfer of ownership, or by rental, lease or lending. The offering to distribute copies … to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” § 101. However, the federal law definition is not binding on the states, and the definition of “publication” can vary from state to state. See infra note 11.

⁶ In most cases there will be only one or a few recordings. In some instances, such as bootlegs, there may be more, depending on how widely copies were made available by the bootlegger.

⁷ This assumption is broader than the concept of “direct or indirect commercial advantage” in section 108 of the Copyright Act. A charge for cost recovery does not necessarily provide a library with a commercial advantage, but it could be interpreted as a sale or rental under state law.

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