3. Promoting Broad Public Access for Educational Purposes

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In directing the implementation of a “comprehensive national sound recording preservation program,” the National Recording Preservation Act of 2000 stipulated that the program should, as one of its objectives, “increase accessibility of sound recordings for educational purposes.”²³ Here, as in several other places in the legislation, Congress recognized an inextricable link between preservation and public access.

The Act called on the National Recording Preservation Board to undertake a study to report on “standards for access to preserved sound recordings by researchers, educators, and other interested parties,” among other issues.²⁴ The resultant preservation report made the link between preservation and public access explicit by titling one chapter “Preservation, Access, and Copyright: A Tangled Web” and acknowledging that “[t]oday, preservation and access have become joined, locked together in the realm of sound recordings”(CLIR and Library of Congress 2010, 108, 7).

The U.S. Copyright Office has similarly linked preservation and access in a recent report, Federal Copyright Protection for Pre-1972 Sound Recordings. “Providing some level of access to digitally preserved works is important,” the report authors contend, “because without it, preservation is often merely an academic exercise.” The report specifies that public investment in the preservation of sound recordings can benefit the public only if they can access those materials. Such access is important for increased “public knowledge about our cultural patrimony, and for the light that these recordings can shine on the times in which they were recorded-basically, for the reasons we study film, literature, music, and any other product of the mind.” Invoking language from the Copyright Clause of the U.S. Constitution, Article 1, Section 8, the report notes, “Access also propels the ‘progress of science’ in that current creators are able to build upon what has come before” (U.S. Copyright Office 2011, 95).²⁵

Although preservation and provision of public access are linked, these two core archival tasks frequently diverge. Libraries and archives often make preservation copies of sound recording materials that are not accessible to their patrons. Many access copies of recordings are not of sufficient quality to be used for preservation purposes.

Providing access to relevant sound recording materials is a multifaceted challenge. For patrons of libraries and archives, access begins with discovering what materials exist and where they reside. Attempts at discovery, however, frequently leave researchers frustrated. There is no authoritative national discography documenting recordings produced in the United States. The lack of a centralized access point to the hundreds of special collections that contain recordings has proven to be an impediment to researchers. Moreover, cataloging for recordings often does not have the amount of detailed information that patrons desire (Davenport 2010, 156–164).

Rights-related issues affect many facets of preservation and access to historical recordings. Few, if any, public domain recordings exist in this country because federal copyright law in the United States does not cover sound recordings made prior to February 15, 1972. Instead, pre-1972 recordings are subject to a variety of disparate state antipiracy laws that have no expiration dates and lack language to exempt archival copying for preservation purposes. As a result, a study sponsored by the Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress found that “[m]any librarians and archivists are reluctant to copy and disseminate older sound recordings in the face of this patchwork of state laws that lack well-delineated exceptions” (U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress 2008, 130).

Instructed by Congress to investigate “[c]opyright and other laws applicable to the preservation of sound recordings,”²⁶ the National Recording Preservation Board’s study, The State of Recorded Sound Preservation in the United States, identified two additional issues of copyright law that complicate the effort to preserve sound recordings and make them accessible. Many historical recordings are “orphan works” with no identifiable “author” to whom requests for permission to make them available can be directed. Institutions that preserve and make accessible orphan works risk lawsuits for copyright infringement should a copyright owner later surface. Furthermore, the study reported that strictly interpreted, section 108 of the copyright law prohibits preservation of a published recording before it has actually deteriorated so that an institution may legally copy a recording only after it is audibly deficient.²⁷ Section 108 does not take into account current recommended technical practices and excludes most recordings from access provisions that it grants for other media.

Institutions with recorded sound collections find it difficult to obtain grant funding for audio preservation without a corollary plan to ensure that preserved recordings will be publicly accessible. “Funding requests for the preservation of sound collections must compete against requests for preservation of other media to which ready access is legal,” the Board’s study reported. This “expectation of access” has contributed to conflicts between rights holders and the institutions committed to preserving sound recordings (CLIR and Library of Congress 2010, 7–8).

Impediments to preservation within the copyright law are not the only legal barriers to audio preservation in the United States. Licensing restrictions are preventing preservation of some of the most recent recordings. Many recordings are distributed as “streams” only; copies are not offered for sale. Because libraries cannot legally download those recordings, they are unable to preserve them according to archival standards for future use. When sound recordings are offered for sale through the Internet as downloads, mandatory license agreements often restrict their use to “personal, non-commercial, entertainment” only, a condition that prevents libraries from legally acquiring them (see Recommendation 4.4).

It is impossible to predict whether Congress will pass revisions to the copyright law to alleviate all of these obstacles. Libraries and archives must work together to create agreements to ensure that new recordings can be preserved legally. Sadly, there is a perception that the interests of research institutions are at odds with those of the recording industry. The tension is unfortunate and detrimental to education and preservation.

The preservation and accessibility of the nation’s audio heritage should be a priority to all parties. Congress called for a national sound recording preservation program to be implemented by the Librarian of Congress that “shall . . . coordinate activities to assure that efforts of archivists and copyright owners, and others in the public and private sector, are effective and complementary.”²⁸ Without collaborative efforts between artists, distributors of recordings, and libraries and archives, the preservation of recordings made in the twenty-first century will be impossible, and our national heritage will remain at risk of being lost forever.

The following recommendations suggest ways to broaden public access to sound recordings and promote preservation along three separate, but related avenues: (1) improvements in the processes of discovery and cataloging, (2) copyright legislation reform, and (3) organizational initiatives to facilitate legal public access to recorded sound collections.

Ensuring Access Through Discovery and Cataloging Initiatives

One of the goals of the national preservation program is to broaden access to preserved historical sound recordings. The depth and breadth of material in audio archives is such that a great number of resources have yet to be mined in areas ranging from acoustics, endangered languages, and history to musical performance practices. Although public institutions, libraries, and archives in the United States hold an estimated 46 million sound recordings, there is currently no efficient way for scholars to discover what sound recordings exist and where they can be found.

Although many historical recordings reside in public institutions, making them available to researchers remains problematic despite the existence of digital technology that could expand access to these recordings to a broad range of users. Existing catalogs are dispersed, sometimes proprietary, frequently incomplete, and often hard to use. The inadequacy of holdings information and intellectual control of collections severely hinders research and access opportunities. Relating the difficulty of discovery to the overall preservation effort, the report commissioned by the National Recording Preservation Board warns, “The lack of sufficient cataloging or description of collections may result in underuse of institutional audio collections and a consequent adverse impact on allocations of funding for the libraries and archives” (CLIR and Library of Congress 2010, 42).

The following three recommendations suggest that effective collaborations can be developed to improve opportunities for scholars and the public to discover and access audio materials relevant to their interests: a national discography documenting the recordings produced in the United States, a national directory of recorded sound collections, and the formulation of best practices in recorded sound cataloging.

Recommendation 3.1:
National Discography
Encourage the continued development of an authoritative national discography through the expansion of existing discography projects.

As noted earlier, some 46 million sound recordings reside in U.S. collecting institutions (Heritage Preservation, Inc. 2005, 40). For researchers, determining which of these recordings are most relevant for their studies is a daunting task at present. For collection managers, preservationists, and catalogers faced with the task of prioritizing recordings for digitization and cataloging, determining which recordings in their collections are duplicated in other institutions can be time-consuming, if not impossible. A publicly accessible national discography offering authoritative documentation that details the production of recordings in the United States and the location of preservation copies in public institutions will aid researchers in discovering relevant materials and will help collections professionals efficiently manage, preserve, and catalog their recordings.

The discography will provide researchers with one website from which to search information from multiple discographies. Acquisition specialists will consult the discography to evaluate potential purchases. Collection managers and catalogers will rely on the discography for authenticated information about recordings in their collections. Preservationists will use the discography to track preservation masters and prevent redundant duplication. Metadata from the discography could be uploaded into WorldCat to benefit catalogers around the world.²⁹ If legislation were enacted to bring pre-1972 recordings under federal copyright protection (see Recommendation 3.4), the discography will help rights holders and those interested in reissues to establish dates of fixation and publication in order to determine lengths of copyright protection.

It will take decades to develop a comprehensive discography that authoritatively documents the entire history of commercial sound recording in the United States. Important steps already have been taken that will provide a foundation for future work, however. In March 2008, the University of California, Santa Barbara (UCSB) launched the Encyclopedic Discography of Victor Recordings (EDVR), a comprehensive discography of every acoustical recording produced by the Victor Talking Machine Company. Supported by grants from a private endowment and the National Endowment for the Humanities, EDVR provides all titles, all label-credited talent, many supporting personnel, composers, and authors, and all recording session dates, places of recording, and issue numbers of published recordings.³⁰ By the end of the current grant cycle, EDVR plans to have documented more than 100,000 recording sessions to include all published recordings through 1940 by RCA Victor (an antecedent of Victor) and Bluebird (a subsidiary of Victor), as well as all recordings produced by Victor’s predecessor, the Berliner Gramophone Co., from 1892 to 1900. UCSB recently expanded its discography activities beyond Victor-related companies by initiating the American Discography Project (ADP), a new database and website to be devoted to American acoustical recording, and made arrangements to add comprehensive documentation for recordings produced by Brunswick, Columbia, and Okeh.

A comprehensive national discography, of course, must go beyond the era of acoustical recordings. As a first stage beyond ADP, documentation on all 78-rpm recordings should be considered. To allow for expansion beyond 78s, the database must be structured to accommodate documentation related to larger and more complex formats, such as long-playing records and compact discs. At a future stage, the discography might work best as a “wiki” site, in which volunteer moderators could verify proposed additions and revisions from public users. Holdings of access copies in public institutions also could be included.

To provide a structure, a discographic schema must first be created. In 2003, the ARSC Discography Committee, at the request of and with funds from the National Recording Preservation Board, began developing a universal discographic data structure (UDDS) to define, implement, and evaluate a data structure. This schema documents and relates the diverse data elements required to identify and characterize recorded sound and sound carriers. The first stage of UDDS will cover cylinders and 78s.

Licensing of published discographies by the national discography will be necessary, as will research to verify and expand information obtained from these sources. Access to corporate records will be important. Recording companies should be encouraged to preserve documentation about their recording activities and to make it available for this project, as well as to historians and media scholars (see Recommendation 4.3).

Recommendation 3.2:
National Directory of Recorded Sound Collections
Create a publicly accessible national directory of institutional, corporate, and private recorded sound collections.

To increase access to information about the location and types of recorded sound collections in the United States, a general web-based directory or guide to institutional, corporate, and private collections should be developed. The registry will allow individuals and institutional representatives to create and update entries that describe in very broad terms the strengths and general character of their collections. The directory can be developed quickly and, thus, would serve as a key tool in the short term for identifying collections.

Many interests will be served by a publicly accessible web-based directory. In addition to aiding scholarly research, it will help producers locate collections with rare or unique materials (e.g., ethnic recordings originally issued in limited runs). Private collectors and stakeholders can identify institutions to serve as potential partners for preservation projects or as permanent repositories for their collections. Additionally, institutions with similar collecting interests will be able to find potential partners for collaborations in the areas of preservation and collection development. The directory can be created under the aegis of ARSC, which has prior experience with similar endeavors, but does not currently maintain a registry of collections.

To encourage the broadest possible participation, the model should be scalable, beginning with very basic collections information requiring minimal input. An institution can then expand upon specific areas of strength, if desired. A combination of controlled-vocabulary selections and free-text opportunities will build into the directory some uniformity of language for searching while offering ways for collectors and institutions to describe the uniqueness of their collections.

Recommendation 3.3:
Establishment of Best Practices for Audio Cataloging
Establish an expert work group led by the Library of Congress to determine data required in a catalog record, and develop best practices for audio cataloging with the goal of streamlining standards.

Scholars who use sound recordings in their research have indicated their difficulties in locating relevant materials. The problem of discovery extends across the full spectrum of recorded sound collections, including best-selling commercial recordings and unique unpublished recordings, and is particularly acute in the case of special and private collections. The problem is structural and stems in part from cataloging practices that do not sufficiently address issues of access and preservation that institutions might resolve through a collaborative effort.³¹

Even for large institutions, such as the Library of Congress, the rules and practices for cataloging sound recordings have proven not to be cost-effective. It is difficult to learn the requirements and very time-consuming to produce the catalog records. The resulting records may well include data unnecessary for users while essential information is omitted. For example, current catalog records ignore physical condition and generally do not indicate whether an item has been reformatted, thus impeding attempts at cooperative preservation.

In 2011, the Library of Congress characterized the establishment of “[e]fficiencies in the creation and sharing of cataloging materials” as “imperative.” Acknowledging an ongoing “era of diminishing budgets and heightened expectations in the broader library community,” the Library has advised that “information providers and cultural heritage institutions must reevaluate their use of scarce resources, both as individual organizations and as a community” (Marcum 2011).³²

In line with the Library’s recommendation, the National Recording Preservation Board should establish an expert work group to delineate best practices for audio cataloging to simplify the cataloging process into a more understandable and cost-effective operation. Participants in the expert work group, to be led by the Library of Congress, should represent a variety of constituent groups, including historical audio archives, digital repositories, scholars, discographers, private collectors, libraries, relevant professional associations, and OCLC. To coordinate its efforts with developments beyond the recorded sound community, the work group should consult with representatives from fields such as informatics and other experts in the changing library community, identify possibilities for collaborative efforts, and consider whether partnerships might be developed with corporate entities to create and share tools and data for the common good.

The work group should investigate barriers to the discovery of audio materials. It should explore the possibility that institutions could adapt existing database models and discographies to their own uses.³³ It should take into account issues related to born-digital recordings and electronic copyright deposits.

The work group should focus on simplifying and streamlining current and emerging audio cataloging standards in the following ways:

• Work from existing and emerging standards rather than inventing new ones.
• Consider the needs of the groups represented.
• Identify core elements of essential data, as well as nonessential data that may be omitted from current and emerging standards for sound recording cataloging.
• Provide suggestions and solutions to facilitate the harvesting of pre-existing metadata.
• Take into account such “forward-thinking” topics as “Next Gen” catalogs.³⁴
• Develop cataloging aids, such as decision trees and recommendations for specific genres and formats.
• Encourage the consistent formatting of data elements across various library and archive groups through the development of rules for harvesting and mapping of data from various databases.
• Examine whether information on the condition and preservation status of recordings, which would aid preservation initiatives and circumvent redundant digitization efforts, should be included in catalog records.

Copyright Legislation Reform

Sound recordings have a unique legal status in the United States. Unlike other works, such as books, pamphlets, poems, music, photographs, drawings, paintings, and motion pictures, they were not covered by federal copyright law (Title 17) until February 15, 1972.³⁵ As a result, recordings produced earlier have been subject to “a complex network of disparate state civil, criminal, and common laws” (CLIR and Library of Congress 2010, 110), a situation that complicates the efforts of libraries, archives, and educational institutions to preserve these recordings. Unless Congress revises the law, this situation will continue until February 15, 2067, when pre-1972 sound recordings are scheduled to enter the public domain (Hirtle 2012). The prospects for effective preservation of sound recordings by institutions holding large (and small) collections and increased funding to undertake this work would be significantly improved if sound recordings fixed³⁶ before February 15, 1972, were brought under Title 17, as the U.S. Copyright Office recommends in its December 2011 report.³⁷

Institutions with recorded sound collections also face legal challenges in making their pre-1972 recordings available to users for research and educational purposes. A study sponsored by the National Recording Preservation Board found “that a significant portion of historical recordings is not easily accessible to scholars, students, and the general public for noncommercial purposes.” One important factor to account for this lack of availability, the study concluded, was that “copyright law allows only rights holders to make these recordings accessible in current technologies, yet the rights holders appear to have few real-world commercial incentives to reissue many of their most significant recordings” (Brooks 2005, 14).

The National Recording Preservation Act of 2000 directed the National Recording Preservation Board to conduct a study and produce a report on issues affecting sound recording preservation and access, including “[c]urrent laws and restrictions regarding the use of archives of sound recordings.” The legislation stipulates that the report is to include “recommendations for changes in such laws and restrictions to enable the Library of Congress and other nonprofit institutions in the field of sound recording preservation to make their collections available to researchers in a digital format.” The published report commissioned by the Board notes that “the study of the nation’s social and cultural history is adversely affected by the terms of protection provided sound recordings under current copyright law.” The report concludes, “Copyright reform . . . remains the key solution to preserving America’s recorded sound history, protecting ownership rights, and providing public access” (CLIR and Library of Congress 2010, 7, 111).

To clarify rules allowing archives and educational institutions to preserve and, where permissible, to make older recordings accessible, the most consequential action of copyright reform that Congress can take is to enact legislation to ensure that sound recordings fixed before February 15, 1972, are protected under federal copyright law. A number of issues that affect preservation and access can be resolved only after pre-1972 recordings are protected under federal copyright law.

As this is the first national plan for audio preservation, it is important that its recommendations to change U.S. laws reflect the interests and concerns of all potentially affected parties. Toward this end, the Library of Congress, under the auspices of the Packard Campus for Audio Visual Conservation, convened a task force on copyright and audio preservation comprising specialists representing archivists, librarians, academe, the record and music industries, and private collectors. The task force was charged with crafting recommendations for changes in the copyright law that support preservation of and access to sound recordings without having negative effects on rights holders and artists.

The following recommendations were crafted by the Library’s task force on copyright and audio preservation.³⁸ With one exception (see Recommendation 3.6, specifically on revising subsections 108(d) and (e) of the U.S. Copyright Law), the recommendations reflect consensus of the task force members. They focus exclusively on the responsibilities of qualified libraries and archives to preserve important sound recordings for posterity and to offer options for wider access that do not negatively affect the rights of performers and producers. They are issued with the intention to support the legitimate rights and interests of rights holders in their sound recordings and to avoid any harm to rights holders of underlying works.³⁹

Recommendation 3.4:
Federal Copyright Protection for Pre-1972
Sound Recordings
Bring sound recordings fixed before February 15, 1972, under federal copyright law.

Many pre-1972 sound recordings will deteriorate long before 2067, the year in which they will enter the public domain under current federal law. Sound recordings historically have been fixed on media that are much more fragile than many other types of copyrighted works. A recent survey of libraries, archives, museums, and historical societies responsible for preserving recordings estimates that of the 46 million recordings existing in their collections, more than 6 million are “in need” or “in urgent need” of preservation. Many more may be at risk, as the institutions in the survey categorized the condition of more than 20 million of the recordings as “unknown” (Heritage Preservation, Inc. 2005, 40).⁴⁰ To complicate matters, state laws that prohibit unauthorized duplication of sound recordings make no provisions for duplication for preservation purposes by libraries or archives.

On December 28, 2011, the U.S. Copyright Office issued a congressionally mandated study on issues pertinent to extending federal copyright coverage to sound recordings fixed before February 15, 1972. The Copyright Office concluded that federal protection should apply to pre-1972 recordings “with special provisions to address ownership issues, term of protection, transition period, and registration” (U.S. Copyright Office 2011, 175).

The Copyright Office’s recommendation accords with the objectives of the National Recording Preservation Plan.⁴¹ Federal coverage for pre-1972 recordings will clarify ownership issues and specify terms of protection that do not vary from state to state. Coverage will provide certainty for qualified libraries and archives to undertake needed preservation copying and cataloging activities, and it will permit transparent rules for permissible access to these materials by library and archival patrons. For the first time, rights holders of pre-1972 recordings covered by federal law will become eligible for licensing payments under the Digital Performance Right in Sound Recordings Act of 1995-payments that are required only for transmissions of recordings protected by federal law.⁴² Clarity in the law also will benefit rights holders of recordings for other licensing and exploitation purposes.

The uncertain status of pre-1972 recordings under (state) common law copyright severely limits the ability of institutions to allocate resources for recorded sound preservation activities. Section 108 of Title 17, which grants libraries and archives limited rights to copy federally protected post-1972 sound recordings for preservation and access purposes, does not currently apply to pre-1972 recordings because they are not covered under federal law (see Recommendation 3.6). In addition, the lack of clarity concerning copyright status and the inapplicability of section 108 hampers efforts to raise funds to save this material.

Federal coverage as recommended by the Copyright Office report will allow libraries and archives to preserve pre-1972 recordings through copying to digital formats and make them accessible to patrons much earlier than is currently possible. Under the provisions suggested by the report, coverage also will provide rights holders the opportunity to take advantage of the economic value that pre-1972 recordings may offer. The revision of the law suggested by the report will allow rights holders to retain federal copyright protection beyond the ordinary statutory period in order to “satisfy constitutional requirements of due process” in conformance with a precedent established in the 1976 Copyright Act (U.S. Copyright Office 2011, 164). With careful definitions and processes to determine when a recording is eligible for an extended term of copyright, this approach would not impede preservation and access by libraries and archives.

Terms of protection proposed in the Copyright Office report fall into two categories: (1) terms for recordings published before 1923 and (2) terms for recordings published between January 1, 1923, and February 15, 1972. For recordings published before 1923, which the report contends “would immediately go into the public domain” if the term of protection applicable to other types of works published before 1923 were to apply, the report offers rights holders the opportunity to acquire federal copyright protection for an additional 25 years under the following conditions. During a three-year transition period, rights holders seeking to obtain the additional period of protection must make the recordings available to the public “at a reasonable price,” must inform the Copyright Office of this intention, and must ensure that the recordings remain publicly available at a reasonable price during the additional years of protection (U.S. Copyright Office 2011, 149, 177).⁴³

For recordings published between January 1, 1923, and February 15, 1972, the report advises federal copyright protection that would last for 95 years from the date of first publication and for 120 years from the date of fixation if the recordings are unpublished, although protection would not continue after February 15, 2067. To secure an additional term of protection to last until February 15, 2067, copyright owners must make their recordings available to the public “at a reasonable price”; notify the Copyright Office of this intention; and ensure that the recordings remain publicly available at a reasonable price (U.S. Copyright Office 2011, 164).

With one exception, these extended terms of protection are in accordance with the views of the task force on copyright and audio preservation convened by the Library of Congress. The Copyright Office’s report specifies a term of protection of 120 years for unpublished recordings, a term that modifies the period of protection currently in place for other unpublished works: “the life of the author plus 70 years unless it is a work made for hire or is anonymous or pseudonymous, in which case the term would be 120 years from creation” (U.S. Copyright Office 2011, 150).⁴⁴ However, it was the consensus of the Library’s task force on copyright and audio preservation, made up of librarians and archivists in addition to specialists representing the record and music industries, private collectors, and the scholarly community, that a flat 95-year term of protection for both published and unpublished pre-1972 recordings (other than those published before 1923) “would provide the simplest and most certain term for copyright owners and users.”⁴⁵ That recommendation is in accordance with the national sound recording preservation program’s Congressional mandate to “increase accessibility of sound recordings for educational purposes.”⁴⁶

A 95-year term of protection for unpublished pre-1972 recordings, other than those published before 1923, is not consistent with the length of term available for other types of intellectual property. Although consistency in the law often is warranted to achieve clarity and fairness of treatment, the distinctive history of pre-1972 sound recording creation and collection merits special consideration if recordings from this period are to be preserved for posterity.

Most of the 46 million recordings housed in public institutions in the United States never have been published. Most unpublished recordings are unique (Tibbo 2011). Most unpublished recordings made before 1972 were fixed on lacquer discs, acetate tapes, or polyester tapes, formats at high risk of deterioration because of chemical instability, external hazards, and replaying.⁴⁷ Many do not have clearly identified owners who can be contacted for permission to preserve the material and make it accessible to the public.

Institutions responsible for preserving recordings allocate their limited preservation resources to materials that can be of most use to the research community and the general public. Limiting the term of protection for pre-1972 unpublished recordings to 95 years will ensure that libraries and archives can preserve more of these unique materials for present and future generations without fear of legal redress for copyright infringement.

The Copyright Office states, “According to the House Report on the 1976 Copyright Act, enacting a provision that takes away subsisting common law rights and substitutes statutory rights would be ‘fully in harmony with the constitutional requirements of due process’ provided that the statutory rights endure for a reasonable period” (U.S. Copyright Office 2011, 153). Allowing rights holders of unpublished recordings the opportunity to secure additional protection until 2067 on the condition that their recordings remain available to the public will ensure that statutory rights endure for a reasonable period and that constitutional requirements of due process are satisfied. It also will ensure that libraries and archives responsible for preserving sound recordings and making them accessible have the legal right to do so.

It is important to note that the recommended extended terms for in-print pre-1972 recordings will be in the best interest of libraries, archives, scholars, and the public only if the law incorporates the following two restrictions on rights holders who are making their recordings available to the public in order to obtain additional years of protection:

• Rights holders must be required to make their recordings available without unduly restrictive licensing agreements that include language prohibiting libraries, archives, and the public from legally purchasing them or making them accessible for research and educational purposes.

  Digital audio files commonly are made available through end-user license agreements that limit uses to “personal, non-commercial, entertainment only”⁴⁸ (see Recommendation 4.4). Unless licensing agreements explicitly allow libraries and archives to acquire and preserve recordings through digital archiving and make them accessible to their patrons for research and educational uses, rights holders should not receive additional periods of federal copyright protection.

• Rights holders must be required to make their recordings available on a physical format (e.g., compact discs) or as digital downloads in formats of comparable quality (i.e., 44.1 kHz and 16 bit).

  For rights holders to gain extended copyright protection, digital streaming cannot be the sole means of satisfying the legal requirement for public access. Stakeholders testified in hearings held by the U.S. Copyright Office that streaming alone “does not provide sufficient access” for researchers. Many types of scholarship and teaching that make use of historical recordings require listening to excerpts repeatedly, for musical transcription and other purposes, as well as for comparisons of excerpts of recordings. Equally important, if not more so, access that is available only through streaming prevents libraries and archives from providing long-term preservation of recordings legally. The Copyright Office report concurs, stating that “[t]he Office does not believe that the requirement of making recordings available to the public should be satisfied merely by providing non-interactive streaming access to the works” (2011, 170).

Recommendation 3.5:
Orphan Works
Enable recordings whose copyright owners cannot be identified or located to be more readily preserved and accessed legally.

The term orphan works has been adopted to describe copyrighted works for which copyright owners cannot be identified or located. Potential users of orphan works who have been unable to obtain permission to use the works legally often refrain from making productive and socially beneficial use of them, fearing the possibility of liability for copyright infringement; this is a situation that the U.S. Copyright Office has characterized as “not in the public interest” (2006, 1). Such potential users include libraries and archives committed to preserving orphan works and making them accessible to the public for educational purposes.

Legislation designed “to create a legal framework to facilitate the authorized use of so-called ‘orphan works’,” in the words of the Copyright Office, would greatly benefit the archival community (Pallante 2011, 7). A legal study commissioned by the National Recording Preservation Board concluded, “If such legislation is ultimately enacted, a limitation of liability for copyright infringement for orphan works could provide greater security for libraries that wish to copy and disseminate such works” (Besek 2009, 27).

Sound recordings that were fixed before February 15, 1972, however, will not be covered under orphan works legislation unless Congress also extends federal copyright protection to these works (see Recommendation 3.4). Should Congress enact orphan works legislation, even in the absence of federal protection for pre-1972 sound recordings, it is crucial that the legislation apply to works protected under state statutes and common laws.

With regard to more recent works, the Copyright Office has noted that changes in copyright registration and renewal requirements have made it much more difficult to determine copyright ownership. Orphan works legislation will facilitate preserving and making accessible older recordings and those produced in the more recent past.

The House and Senate considered orphan works legislation in the 109th and 110th Congresses. Although a Senate bill passed by unanimous consent in the 110th Congress, a vote on a corresponding House bill did not reach the floor before the session ended. Subsequently, a federal court in 2011 ruled that the matter should be determined by Congress, rather than private parties, declaring that “questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.”⁴⁹

Orphan works legislation is especially relevant to the national effort to preserve our recorded sound history and make it publicly accessible. Many recordings were issued by small recording companies that have gone out of business or cannot be located. Ownership is inadequately documented for many types of recordings, including radio broadcast recordings (for which intellectual property rights have not been made explicit in the broadcast itself) and many unpublished works. It is recommended that Congress address the matter of orphan works at the earliest opportunity and that, in doing so, it considers the challenges that libraries and archives face in preserving sound recordings and making them publicly accessible.

Recommendation 3.6:
Section 108 of the U.S. Copyright Act
Revise section 108 of the U.S. Copyright Act of 1976 in order to facilitate preservation and expand public access to sound recordings.

Section 108 of the U.S. Copyright Act of 1976 was enacted to grant certain exceptions and identify specific circumstances under which libraries and archives can legally make copies, including preservation and replacement copies. Section 108 (along with the right of fair use provided by section 107) also grants crucial exceptions allowing libraries and archives to reproduce materials for purposes of public access to further private study, scholarship, and research. Although these exceptions have been amended over the ensuing years, they are still exceedingly narrow, leading the Section 108 Study Group appointed by the Library of Congress and the Copyright Office to conclude that the law reflects the pre-digital era and “embodies some now-outmoded assumptions about technology, behavior, professional practices, and business models” (U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress 2008, i).⁵⁰ Furthermore, all post-1972 sound recordings that embody musical works are excluded from exemptions in subsections 108(a) and (d)–(g), while pre-1972 recordings are wholly ineligible for any section 108 exemptions.

The Library’s task force on copyright and audio preservation recommends that a more comprehensive revision of section 108 be undertaken to address issues and concerns relevant to the preservation of and access to sound recordings in the twenty-first century. The final report of the Section 108 Study Group set forth recommendations that, if adopted, would significantly benefit the preservation of historical sound recordings by U.S. libraries and archives. Additionally, the legislative changes governing eligibility and conditions under section 108 recommended by the Study Group would be significant steps toward addressing issues related to digital technologies, including those required for preservation, research, distribution, and access. The Section 108 Study Group report has been duly considered alongside the recommendations cited in The State of Recorded Sound Preservation in the United States (CLIR and Library of Congress 2010) and those of the Library’s task force on copyright and audio preservation in formulating a course of action.

To meet the mandate of the National Recording Preservation Act to preserve and increase public accessibility of sound recordings, the following legislative amendments are required:

• Make all U.S. sound recordings, including those fixed prior to February 15, 1972, subject to section 108 of the Copyright Act of 1976.

  Because U.S. sound recordings made before 1972 are not subject to federal copyright law, they are currently not eligible for section 108 exceptions. Legislative action on Recommendation 3.4 would resolve this problem. As an alternative approach, should pre-1972 sound recordings not be placed under federal copyright protection in the near future, Congress should pass an amendment stipulating that section 108 applies equally to all sound recordings-regardless of whether they are governed by state or federal law.

• Expand subsection 108(a) eligibility beyond libraries, archives, and their employees to include other nonprofit institutions and independent contractors preserving recordings on behalf of nonprofit institutions.

  Exemptions afforded under section 108 are currently restricted to reproduction by libraries, archives, and their immediate employees. Museums frequently hold unique and significant recorded sound collections, however, and should be subject to the same preservation and access provisions as libraries and archives. Other nonprofit institutions with a public access or research component might be considered for section 108 exemptions as well, provided they meet certain functional eligibility requirements. The limitations under subsection 108(a) also should be extended to include outside contractors and service bureaus performing preservation and digitization work on behalf of eligible nonprofit institutions, as long as certain conditions are met to safeguard the interests of the rights holders (U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress 2008, iv).

• Revise subsections 108(b) and (c), which govern the reproduction of unpublished and published works, to allow for the use of current technology and best practices in the preservation of sound recordings.

  Subsections 108(b) and (c) present several obstacles to the preservation of sound recordings that must be ameliorated. First, the three-copy limitation on reproduction must be amended to accommodate best practices in the digital era. Nonprofit institutions should be permitted to make a reasonable number of copies of both published and unpublished sound recordings for replacement and preservation purposes, which requires the ability to produce and archive digital files in excess of the three-copy limit (CLIR and Library of Congress, 2010, 122–123). Second, the narrow focus of subsection 108(c), which limits duplication solely to replacement copies of a published work that is damaged, deteriorating, or in an obsolete format, must be expanded. Both replacement and preservation copies should be allowed for at-risk recordings, and copying must be allowed before damage or deterioration has compromised the sound carrier.⁵¹ Third, the prohibition of offsite lending of digital replacement copies should be amended. Libraries and archives should be allowed to lend digital replacement copies under specific circumstances, such as when the original copy is in a physical digital medium that can lawfully be lent offsite and the replacement is in an equivalent format (U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress 2008, v).

• Amend subsection 108(i) so that out-of-print sound recordings fall under the provisions of subsections (d) and (e), regardless of content.

  Subsection 108(i) summarily excludes musical works and audiovisual works other than those dealing with news from the provisions of subsections 108(d) and (e), which govern access copies for users; this exclusion severely limits opportunities for private study, scholarship, and research. In addressing this issue, the Section 108 Study Group concluded that if subsection 108(i) is retained, it should be amended to “[l]imit the excluded categories of works to those where copying under subsections 108(d) and (e) might put the work at particular risk of market harm” (U.S. Copyright Office and the National Digital Information Infrastructure and Preservation Program of the Library of Congress 2008, xi).

  As providing limited access to out-of-print recordings under section 108 provisions would cause no market harm, subsection 108(i) should be amended so that sound recordings are eligible for subsections (d) and (e), regardless of content, provided they are out-of-print. This would make the treatment of musical sound recordings consistent with that of other forms of intellectual property.

• Broaden the categories of “adjunct” works that may be eligible for subsection 108(d) and (e) treatment and use a formulation other than “adjunct” that captures the concepts of “embedded” or “packaged with.”

  If subsection 108(i) is amended so that subsections 108(d) and (e) apply to additional categories of works, such as sound recordings with musical content, additional conditions should be included in subsections 108(d) and (e) to prevent material impact on the commercial exploitation of the affected works.⁵²

• Revise subsections 108(d) and (e) to allow for the secure electronic delivery of digital copies for private study, scholarship, and research.⁵³

  The Section 108 Study Group concluded that electronic access under subsections 108(d) and (e) should be permitted if adequate measures are taken to ensure that access is provided only to the designated single user and to prevent unauthorized reproduction or distribution of the work. Recent technological innovations have created various options for streaming audio files, and a growing number of companies provide password-protected secure streaming services. Record companies use secure sites to stream recordings (or even offer downloads) to members of the press for publicity and review. Libraries and archives should likewise be allowed to use these services, or to establish their own secure networks, to stream out-of-print recordings to researchers. Even if the streaming is limited to an interlibrary loan type service (library A streams requested recording to library B, where the researcher listens onsite), this would be a major step toward providing access to out-of-print recordings.

• Make sound recordings fixed prior to February 15, 1972, subject to subsection 108(h). For sound recordings produced prior to 1961, make subsection 108(h) applicable in the last 45 years of their copyright term (rather than the last 20 y