Intellectual Property and Audiovisual Archives and Collections
by Anthony Seeger
We are in the midst of an intellectual property gold rush. Thousands of fortune seekers are trying to stake their claims to promising territory, existing claims holders are seeking increasingly aggressive means of defending their claims, and the original owners are often being ignored. Scholars and enthusiasts whose work uses intellectual property and archives and libraries that store it are largely bystanders in this gold rush, but they are profoundly affected by it.
Most archives, in particular, find themselves in the position of a horse being kicked forward and reined in at the same time. When you kick a horse and pull back on its reins, the horse gets confused and may rear, buck, rear, kick, and forget all its previous training. Faced with the tremendous challenges of preserving disintegrating collections, prodded by increasingly entrepreneurial administrations to be more self-supporting, kicked by patrons for not having more online, and reined in by concerns about copyright and ethical uses of their materials, archivists rarely buck, but we do roll our eyes in frustration, consider other jobs, and may forget what we have learned through decades of work with our collections, with depositors, with patrons, and with communities.
This paper is about intellectual property and audiovisual archives1 and collections.2 It will not resolve your preservation and access problems but I hope it will clarify them. It will not advocate any particular technological direction, because technology is changing quickly enough to make such recommendations dated between my writing them and their publication. It will advocate that archives take proactive stances regarding intellectual property but, especially in the area of training, review their own contracts and other archive forms and carefully evaluate proposals for use of materials they hold in trust for communities, scholars, and collectors. It will advocate that archives help researchers obtain the rights they need when they do their research and transfer those rights required by the archives at the time of deposit in a way that permits maximum access. It will also recommend that archives help artists and communities learn what their rights are and how to protect them. It will advocate that researchers and other collectors review their collections now and take steps to resolve ambiguous rights questions. It will advocate that our academic programs focus on intellectual property as part of the study of music, folklore, anthropology, and other fields. It will also argue that archives should look at the new technologies and the new pressures placed on archives in the light of their accumulated knowledge, collections, and expanding potential to affect the lives of their users.
There is no question that the changes in the U.S. copyright laws, pressures to adopt emerging international copyright agreements, and pressure to extend the protection of copyright to more and more material for longer and longer periods have already had a significant effect on archival operations. The Internet’s potential to disseminate information rapidly and widely raises intellectual property issues with an urgency they have not had before. The situation is further complicated by the age of the collections in most audiovisual archives (older rather than newer, with greater significance given to old material than to new) and by the only slowly changing practices of field researchers and those who collect materials and deposit them in the archives.
The issues surrounding intellectual property and audiovisual archives cannot be divorced from the specific features and objects of archives and collections. These issues are too important to be left to lawyers alone because they are not only legal (what people can do) but also are ethical (what people should do). The interests of the large companies involved in the intellectual property gold rush are also rarely the concern of the patrons of and contributors to archives, whose opinions must be championed.
Two Kinds of Collection-Two Kinds of Challenges
Before going into my subject in any more depth, I want to make a distinction between two different types of collections, because the issues raised by each type are quite different. To a certain degree this distinction classifies types of archives and also clearly distinguishes some archives from libraries.
Commercial Recordings and Other Publications
Some collections consist largely of commercially released recordings and associated print and photographic materials. Such collections may be created from the compulsory deposit of published materials (for example, at the Library of Congress), by the accumulation of commercial recordings for broadcast (for example, at commercial radio stations), or by collectors who devote themselves to systematically amassing recordings of a given genre or period. These collections have an important feature in common-the print and recent audio publications are governed by laws of copyright. The laws are reasonably clear, albeit inadequate for the digital age and our patrons, whether we like them or not. Collections of this sort can be treated similarly to how large libraries handle print materials.
Some problems arise, though, even with commercial recordings. Before 1972 no national copyright law governed actual sounds on commercial recordings, although the compositions were covered by existing legislation. The compositions, cover art, liner notes, and song sequence were all covered by copyright but not the sounds themselves. Local antipiracy laws covered the actual sounds. Also, different countries have different laws regarding the use of older recordings-thus it is possible to reissue older sound recordings in Australia or Germany that cannot be reissued in the United States.
Most archives, like most libraries, follow copyright laws carefully, because they are part of larger institutions with little reason to embark on long battles with the well-funded legal departments of large corporations. This can be frustrating for patrons, who find that such policies limit their access to and use of materials. Among the frustrations of patrons are the relatively small amount of a piece that is considered to be an idea covered by copyright; the difficulty of identifying the copyright holder of material published by a company that has ceased to exist under its original name; and the lack of response from many copyright owners, who often do not even answer requests for permission to use materials they control unless a lot of money is involved. Countless researchers have told me about their inability to get an answer from the major record labels when they ask to use the materials in limited educational editions or from publishing companies for the use of musical transcriptions and song lyrics in books and journals. It is also difficult to ascertain which compositions are in the public domain and thus available for free use. Sometimes several music publishers claim the same composition, which occasionally turns out to be in the public domain by virtue of an early publication. To further complicate things, the arena for fair use is being constricted by the holders of the copyrights whenever possible. A solution similar to that of the Copyright Clearance Center, which has greatly facilitated the creation of course readers by handling clearances for many academic publications, would be a good model for easing these frustrations. However, no centralized effort has yet been undertaken to permit quick and easy use of copyrighted audiovisual materials.3
Individual collectors of published recordings often respond more flexibly to requests for use of these materials than do archives. Under a liberal interpretation of fair use, collectors can copy their recordings, which they then send to researchers who need the copy to analyze-something most archives will not do. Collectors often cite this liberty as a reason not to place their collections in an archive. A potential drawback is that an individual is not an institution, and the best collections should eventually end up in institutions that will care for them over long periods.4
Unpublished Collections of Recordings, Manuscripts, Field Notes, and Photographs
Quite distinct from collections of published materials are collections of unpublished and unique materials. Such collections include the scholar’s field recordings of interviews, performances, and events; the enthusiast’s collections of concert tapes; and the scientist’s recordings of experiments. The Archive of Folk Culture has acquired many such collections as have the Indiana Archives of Traditional Music and, to a lesser extent, archives at the University of California, Los Angeles; the University of Washington; the University of Illinois; Harvard University; and elsewhere. Local community scholars, museums, individuals, and institutes of various kinds may also hold such collections.
Because the recordings have never been published, the type of use permitted for them is often unclear. Possession of the recordings does not permit collectors or archivists to use them however they wish. The following paragraphs describe some of the rights that need to be transmitted from the artist (the individual or group recorded for whatever purpose) and collector (the person responsible for making the recording and depositing it in an archive) to the archives:
Artist: To transfer rights, the artist must possess the rights to the performance, which may not always be the case. A performer might record material belonging to another group and thus not have the rights to transfer to the collector. The artist recorded must be able to transfer to the collector the rights the collector requires for documentation.5
Collector: The collector needs to have the artist agree to not only make the recording but also to transfer to the collector the rights that are needed. This usually means for personal research use but should also include deposit in an archive for preservation and future consultation. It would be wise to include publication in print or other media. If the conditions are not agreed to, either in print or on the recording itself, it is often difficult to get them later. The collector should also find out whether the person being recorded is able, within the local knowledge system, to give the rights granted with the recording. The collector should note reservations-such as “people can listen to this song, but it can’t be used for profit, because our church doesn’t allow that” or “you can’t publish this without coming back to me for permission.” These restrictions should be noted when the recording is made and when it is transferred to any institution or individual.
Archives: Archives usually receive materials from collectors rather than artists. An archive needs to ensure that it can make copies for preservation and that it can provide access to the collection, preferably in the broadest sense, using technologies both existing and as yet to be invented. If possible, archives would like to be able to permit the commercial use of the recordings in collaboration with the collector and artist. Without the explicit transfer of these rights, including a statement that the depositor is authorized to grant these rights, the archive will find itself frustrated in its efforts to make its collections accessible. Archives need well-designed, easy-to-understand contracts that give them the rights they need and give the collector space to provide the information on restrictions and reservations that may have been expressed during the recording.
There are real ethical issues here. If the artist puts restrictions on something, the collector or depositor and the archive should take every step possible to respect those wishes. This may be seen as an impediment to dissemination, but it should be a fundamental tenet of archival policy.6
Contracts should be drawn up with the interests of all parties in mind. When I was director of the Indiana University Archives of Traditional Music, I was frustrated by the number of collections that had been deposited with the highest degree of restriction on the whole collection. This was often because the researchers who made them wanted to publish their results before others could use their collections. They would restrict the collection and then forget to change the restrictions after they had published their results. As part of a broad effort to improve access, I contacted every depositor we could find to renegotiate the contract. The objective was to permit increased access to at least part of every collection while allowing continued restrictions on material that needed to continue to be restricted. I also created a new contract that required the highest level of restriction to be reevaluated every 10 years. I did not anticipate the Internet and after my years at Folkways would probably rewrite the contract again, but I was able to improve access to the collections by retroactive contract negotiating.
The Enduring Cultural Bias of Copyright Legislation and Its Implications for Archival Recordings
The following discussion of copyright is meant to show how the existing laws came from a culturally defined idea of creativity that is not shared by most folklorists, anthropologists, and other scholars. The thinking behind the laws comes from an earlier time; was influenced by a romantic ideology; and has been reinforced by evolutionist thinking, which presumed that earlier forms of social life were inferior and would inevitably change. The social philosophy of the past centuries, long abandoned in other areas, is still expressed in international legislation. Scholars and archivists alike need to recognize that they cannot simply abide by current legislation but need to work to bring the legislation into the twenty-first century within a postcolonial global economic system in more than merely technological ways.
Any discussion of copyright law must be placed in the context of the societies in which the currently observed laws were developed. They should be seen as the production of a specific group of people in specific societies at a particular moment in their histories. Ideas about intellectual property were developed and codified in Europe and the United States and have become the framework for international intellectual property law.
Today’s copyright laws reveal their origins in the Enlightenment, when philosophers looked to the individual rather than the group as the fundamental element of society. They were further developed in England and France during a period of tremendous social and political change. The laws took much of their current form in a period of increasing urbanization, literacy, and evolutionist thinking. The laws addressed only new creations by literate creators that were printed on paper and sold commercially to a literate public. The initial purpose of copyright was to allow the printers’ guilds time to recover their investment before others could make copies of the materials. The early copyrights established the trend for copyright in the ensuing centuries: publishing companies held the protected copyright, which usually applied to print publications. After a fixed period, copyright material would enter the public domain and become available to anyone for making copies or using in other forms. This is an important part of copyright and patent law: the restrictions are temporary to enable the creator to benefit from the creation and after a fixed time the restrictions expire so that the public may benefit from the free flow of information.
Any folklorist or anthropologist will immediately notice that quite a lot of human knowledge and wisdom was not included in formulations of the copyright law including the creations of the illiterate and nonliterate, ideas created and controlled by a group rather than individuals, and protection of knowledge not intended for commercial use. Not only were these left unprotected, they were specifically made available for creative artists to use without restriction to produce new materials that could be copyrighted. Let me give some specific examples:
- The laws either failed to consider or specifically excluded all of what is broadly called folklore and traditional knowledge. The laws controlled the right to make copies of written original material, not the right to retell stories heard around the campfire or in the local pub or the right to learn a song from a songwriter in a local oral tradition. This kind of knowledge, often labeled collective knowledge or considered traditional, was placed in the public domain where creators of new works could freely use it.
- Laws carefully protected the rights of individual, literate composers in the name of that composer (or the composer’s publishing company). However, laws did not recognize the possibility that a lineage, clan, village, church, or some other social group (other than corporations, which were recognized) might possess knowledge that should be protected in the name of the group.7
- A composer can make some changes in an unpublished traditional song and copyright the only slightly altered song without any consideration of the original performers of the song. In so doing, the composer is able to ignore the identity of the original owner (if identifiable) or any claims the original community might wish to claim to the song. For example, a composer might take a sacred song from a South American Indian community and turn it into a commercial for replacing the rain forest with cattle pastures. This can be done without acknowledging either the original creators of the work or the possibility of any objection on their part that their own sacred art forms are being used to destroy the land they hold sacred. It may be legal under current laws, but is it right?
In sum, intellectual property legislation encouraged and continues to encourage the creation of new things and creates a disincentive to value traditional performances-because the creations of traditional artists are not valued. Value is often concrete: a popular music songwriter can make money from a song; a traditional artist who performs an equally moving song cannot receive any songwriter’s royalties. The traditional artist often learns from a teacher who has learned from another teacher. Copyright law should protect both their performance and the knowledge they have obtained because their artistry does not lie in new creations. Without such protection they do not benefit from the exploitation of their art, and tradition must be abandoned in favor of innovation in order to protect their art.
Over the centuries, music publishing companies have extended the life of their copyright protection (originally only a few years, now 70 years) to reduce the amount of material in the public domain and restrict fair use of intellectual property to control it. The most recent revision of the U.S. copyright laws included an extension for company control and few concessions to the rights of artists or communities, particularly those that are nonliterate or traditional.8
There is a colonial aspect to the copyright laws. Colonizing countries used the colonies to provide raw materials for their industries and in turn sold their finished products to the colonies at a profit. Colonies were often prohibited from developing their own manufacturing capabilities in the interest of keeping them dependent. In music a creator can take unprotected, public domain materials and create something new from them that can be protected. Anyone who wishes to use the adapted original materials must pay the person who adapted the material, not the original creator or the original creator’s heirs. The issues have become particularly acute in the area of pharmaceuticals. Here, the knowledge of traditional curers is considered public domain. Once that knowledge has been taken and turned into a product, the traditional knowledge bearer receives nothing, and the pharmaceutical company may make millions over the discovery, which was in fact something learned from a member of another community. Here again, laws developed by countries with large pharmaceutical industries (who have strong lobbies and can afford political contributions) affect the lives and futures of small communities in countries that are threatened with reprisals should they even consider changing the legal status quo. The serious ethical issues regarding pharmaceuticals are being played out around the world. Similar things have happened in music when a popular performer takes folklore materials from books and recordings and creates a popular arrangement.
Are There Other Formulations of Intellectual Property?
Many societies have extremely elaborate concepts of ownership and control of knowledge, many of which bear little resemblance to the European and North American ideas of copyright. Among the more elaborate are those found in Melanesia. For example, on Vanuatu, payments must be made to original producers or their community for such things as the use of a particular design in wood carving or the wearing of a certain flower. The archive of the Vanuatu cultural center has a tabu room where restricted recordings are placed to demonstrate their secret and restricted nature (Amman 2000). Australian Aboriginal communities often restrict knowledge of certain materials to a certain group of people (a clan, a phratry, a gender). To the rest of them the information is secret. Such restrictions are also common in American Indian communities. Such examples are further evidence of how culture shapes systems by the definition and control of intellectual property.
Throughout the world today, traditional musicians, the subjects of interviews, and the subjects of photographs and films increasingly feel that they are being deprived of income through an unjust copyright system. They see how those whose rights are protected can become very wealthy whereas those whose rights are not protected appear to remain poor. They find it increasingly difficult to find successors who will carry on their arts, partly because no one can make a living at it. One reason they cannot make a living is that their art is not recognized by, protected by, and paid for through copyright law and the equitable distribution of royalty payments.
Some countries, especially former colonies of Europe, are making an effort at the national level to protect local traditional performances. This has usually involved the creation of a paid public domain arrangement in which no music may be used for free: if there is no named composer, then the payments must be made to the nation. So far, however, these funds have not been distributed to traditional communities or artists in any systematic way. These countries are also leading an international movement to fundamentally change the existing copyright laws to include what is now deemed to be traditional, unprotected knowledge. Both the UNESCO and the World Intellectual Property Organization have been investigating and preparing recommendations for the protection of what is variously called folklore, intangible cultural heritage, and several other terms. Their work is far from complete and may result in other difficulties, some of which are identified in a very thoughtful paper by Michael Brown (1988), such as a reification of authenticity, and conflict regarding hybrid forms.
What Does the History and Current Status of Copyright Law Have to Do with Archives?
Quite a lot. Imagine9 that the maker of an X-rated film wants to use a recording of a traditional religious song in a sex scene in a bordello. The best performance of this song is found in your archive or collection. The producer offers you $20,000 for the use of the recording in the film and the accompanying sound track (an enhanced CD with explicit photographs to browse while listening to the music). What should you do? Should you make a digital copy and use the $20,000 to fund badly needed preservation? Should you refuse to do so and confirm patrons’ views of archives as places where material is placed never to be available to anyone again? What would you do if the film were a documentary history of bordellos, no money was offered, but the music was desired to portray life in a bordello next to a church on Sunday morning? Would that be any different? (Hint: You certainly should not start by contemplating national copyright codes.)
The place to start, of course, is with the original recording and deposit agreements you should have in your files. What did the collector and church community agree to at the time of recording? What did the collector require the archives to do when the recordings were deposited? Many of the holdings in research-based archives are on the one hand unprotected public domain materials and on the other hand to some degree governed by local ideas of ownership and propriety. The archives’ rights to use the materials are often further affected by restrictions placed on the use of the materials by the collector or donor of the materials.10 This places the archive in a position of arbiter between the traditional ideas of ownership, restrictions of the donor, and current copyright law.
For these reasons, archives have to be especially careful to consider the rights of the original performers as well as the rights conferred by law before entering into any agreement. It might be perfectly legal for a film company to play a traditional religious song in a scene filmed in a bordello, but would it be ethical to use the one you have? Would it respect the original intent of the recording and the reason for its deposit in an archive?
It is precisely the ambiguity of the archives’ holdings that should place them at the forefront of the debate about the ethics as well as the legal implications of the copyright code. I am particularly happy to find the Library of Congress the locus of this discussion of copyright laws.
Who Is Our Audience? Why Are Our Collections Important?
What archivists know and few others seem to realize is that archives can be places of discovery, excitement, and joy. The public image of archives is all too often of a dark place where one sends things that are no longer needed. When I was directing the Indiana University Archives of Traditional Music, I was impressed by the number of musicians who came to listen and learn from the collections, by the request from the Fox Indians for copies of some cylinders so they could perform forgotten songs, by African archives’ requests for copies from our collections to enable African countries to possess the documents of their own musical heritage.
The history of many communities has been transmitted through oral traditions rather than written documents, and audiovisual archives provide access to the speech, music, and visual images that communities can use to understand the past and fashion the future. Social scientists have long recognized that communities engaged in changing themselves often look to the past as a model through which to create a coherent future.11 In this light, archives become a resource for the recovery of history and the establishment or reestablishment of a degree of cultural autonomy. At Indiana University I felt that we were supplying communities around the world with the tools for their self-determination. Using documents of their own history, they might be able to forge major transformations or establish meaningful continuities.
As a scholar I have been humbled by the significance of some of the by-products of the research of anthropologists and folklorists. One hundred years after their publication, few articles in the Journal of American Folklore or the American Anthropologist are of more than minor interest. The recordings made by some of those authors, however, often continue to be very exciting to scholars, musicians, and members of the communities in which they were recorded. Over time, it may be the collections we have made rather than what we have done with them for which we are most gratefully remembered. This requires many of us to rethink our priorities and pay attention to the fate of our recordings, photographs, and unpublished materials.
In reacting to the various pressures on our institutions and personal collections, it is essential for archives and collectors to remember the future audiences for these collections and their potential effect. It is well to recall the trust in which we are holding them. Our ethical treatment of the artists and the communities from which they have come must be of primary importance in our positions on intellectual property, decisions about preservation, and strategies for institutional survival.12
Archives, Multimedia, and the Internet
Clearly, the emerging and rapidly evolving technologies of multimedia and the Internet offer archives the chance to maintain the unity of their collections and yet make them available on a scale previously unimagined. It allows us to facilitate access not only to information about our holdings (through online catalogs) but also to many of the materials themselves. The technology, however, is far ahead of the archives’ ability to use it. Our collections are rarely ready for the kind of wide access that is potentially available. One of the ways in which they are not ready is that we usually do not have the right to distribute them that way.
We can look to technical solutions, but many technical solutions-like audio streaming to avoid copying-are surpassed by technologies that defeat them more quickly than we can adopt them. It is also possible that a technologically superior system will not become the standard, because the consumer market continues to influence the media received by most archives and the recordings made by most collectors. Despite this, archives need to continue to experiment with new ways of reaching the people who will use and benefit from their collections. I recommend nonexclusive contracts, however, and experiments with the parts of the collection for which rights are quite clear.
As we experiment with different systems for digital distribution, we can be reviewing our contracts; acquiring collections with more clearly established dissemination rights; and working to bring the needs of our peculiar institutions to the attention of lawyers and lawmakers, scholars and the people they record, and communities and their members. The next section makes a number of specific suggestions; readers are welcome to contact me with more suggestions.
Steps to Be Taken by Archives, Collectors, and Institutions to Facilitate Our Use of New Media
Archives alone will not resolve the general issues of intellectual property nor will they even resolve their immediate problems with acquisitions and dissemination. Access to research-related collections will have to be ensured through a broad collective action and changes in the public’s attitudes toward information. It is difficult to predict how this will play out in the coming years. One thing is highly probable, however: there will be an enduring need to clearly establish what rights are being transferred to collectors and archives. Given this probability and the problems faced by archives and collectors today, here are a few suggestions for archives, collectors, and professional organizations.
- Archives should bring the issues of access, preservation, and dissemination to the attention of colleagues in the disciplines they serve. They should argue for ethical as well as legal and practical approaches to the materials in their possession. The archiving committees of the Society for Ethnomusicology and the American Folklore Society are good forums for discussing these issues as are specialized professional organizations such as International Association of Sound and Audiovisual Archives. Archives and collectors should be involved in local discussions regarding intellectual property and should contribute their own expertise to such discussions. Archives should provide rights information and rights transfer forms to researchers before they start their work and should pay careful attention to ethical issues when materials are deposited. Archives should also mobilize to help artists and members of communities that are being recorded understand how to protect their rights; at the same time, archives should educate members of communities about the uses of archives and show how properly written agreements can both protect the community members and permit the archive to do its work.
- Archives should be very cautious in signing agreements for the use of their materials. Most such agreements require the archive or collector to affirm that it controls the desired rights, and most archives do not have a paper trail to prove that should the issue become contested. Archives might want to consider reviewing their collections and creating new contracts for collections they would like to make widely available through digital archival distribution. Archives might consider collaborating in creating standard licensing agreements for archival material, with the assistance of legal counsel, that protect their interests as well as those whose materials they hold. Archives might want to review their acquisitions policies. If they have a regular supplier of materials (such as recordings of university concerts, for example), they might want to ensure that all the appropriate rights have been transferred to the archives for the desired use.
- Archives should take advantage of technological developments that support their goals within the limits of sound policy and ethical practice. Technological solutions to intellectual property issues have had a short life, however, and will probably not resolve access concerns by themselves. Collection samples, in the form of 30-second audiovisual segments and low-resolution photographs, appear to be commonly accepted, although this may change.
- Archives will certainly face some censure by insisting on following both ethical and legal guidelines. Archives should take the lead in deflecting criticism by consulting the ethics guidelines of the American Folklore Society, Society for Ethnomusicology, and American Anthropological Association and by using brochures and Internet sites to explain the reasons for their policies on intellectual property and why they have developed their specific forms and policies. Archives should engage their critics in debate, representing the rights and concerns of the communities and individuals whose collections they hold. Archives and other institutions should make their opinions and expert knowledge available when new regulations are being created covering materials customarily held in archives.
- Collectors should review their collections carefully for material that is confidential or secret or reveals culturally restricted information. If such materials are found, collectors should contact the artists, performers, or speakers and ask for written authorization to use the materials; deposit them in archives; and make them available for nonprofit educational use of all kinds in the future. When preparing materials for deposit in an archive, collectors should inform the archivists in writing of any sensitive materials for which written agreements have not already been obtained, including suggestions on how to handle the materials.
- Collectors should review new contracts with the archives or other receiving institutions very carefully to be sure they accord withthe implicit or explicit agreements through which the materials were collected; learn about how to obtain rights to materials collected in the field and assist community members with rights issues before returning to the field; and instruct students and interns in the significance of contracts and the importance of collecting rights as well as recordings during their research.
- Universities should train researchers in appropriate methodology for recording and receiving rights to use cultural materials. Such training should be part of all research methods classes and should be available to scholars of all ages. All researchers should go to the field with rights information forms in English and the local language and with video cameras; they should have enough training to be able to explain the forms to the people they work with. All students should be exposed to the issues of intellectual property before they start research of any kind to avoid perpetuating a tradition of poor documentation and permissions.
I started this paper with the image of a confused and frustrated horse simultaneously kicked and reined in. When a horse is kicked and the reins give it a direction to go, it will take off. I hope that archives and collectors, frustrated by the lack of direction so far, will move quickly and decisively and become proactive in the area of intellectual property, always keeping in mind the ethical obligations of their materials and their long-term importance to the communities whose traditions they preserve.
There is a huge body of literature on intellectual property, ranging from how to get your song published to detailed discussions of a variety of national and international agreements. An outstanding resource for information related to traditional music is the Web site created by Anthony McCann, “Links In Some Way Relevant to my Thesis on Copyright and Traditional Music” www.ul.ie/~iwmc/research/anthonymccann/thesis_links.html.
An informative and enjoyable book on the general issues of intellectual property today is Shamans, Software, and Spleens (Boyle 1996). The UNESCO Copyright Bulletin has several articles on the intellectual property law and indigenous peoples and is representative of the issues being raised in that body (Massey and Stephens 1998). A lively debate on the subject by a group of anthropologists can be found in the article by Michael Brown (1998).
The literature within audiovisual archiving is considerably smaller. It includes a series of articles in the publications of the Association of Recorded Sound Collections, articles in the publications of the International Association of Sound and Audiovisual Archives, and others (Jabbour 1983; Mills 1996; Seeger 1992, 1996).
1. Throughout this paper, audiovisual archives include institution-based archives with collections of audio recordings, video recordings, photographs, paper records, and other materials related to systematic collections that often combine several media. Audio, visual, and photographic media all share certain features in the area of intellectual property as well as in preservation and access; the paper records here are not given as much emphasis.
2. A collection is any kind of private collection that has not yet been deposited in a specialized institution such as an archive. This could be the researcher’s field tapes, the jazz collector’s 78-rpm record collection, or any other systematic collection.
3. The success of MP3 and Napster may encourage such a change.
4. Collectors should deposit their materials in an archive while they are alive. It is much easier to accession a large, systematic collection when the depositor can help with its organization and interpretation.
5. This might include permission from the material’s creator if the artist is recording someone else’s work, but the complexities of research are such that the researcher really has to determine, with the artist, what needs to be done to ensure that the materials can be used.
6. Such restrictions may also be viewed as violating rules of public accessibility. However, in putting relative weights on access and following the wishes of the artist, I always put the artist’s intentions first-they are primary requirements for establishing trust and maintaining working relationships with scholars and communities. This is also the position taken by the code of ethics of the American Folklore Society.
7. The very idea of collective authorship, or lack of individual author for orally transmitted works, may well have been an inheritance from evolutionist thinking, which often worked through oppositions. Civilized societies acted one way and thus primitive societies must be based on the opposite principles. This was assumed to be the case in social organization, thought processes, and many other spheres. Thus if nineteenth-century authors created individually, it was assumed that evolutionarily less-developed societies could only repeat or create collectively rather than individually.
8. American copyright law continued to be dominated by print publishing companies until well into the twentieth century. Hymnbooks and later the huge success of sheet music brought them wealth and influence. The major 1909 revision of the U.S. copyright law did not specifically legislate about recorded sound but it did protect music publishers. They may not have seen the significance of the wax cylinders and discs, but by the end of the twentieth century, recording companies owned most of the large music publishers.
9. One can imagine any number of scenarios-some of them political, others cultural. Most have nothing to do with sex or theology, but this one will do as well as any other to highlight the issues.
10. For example, at the Archives of Traditional Music, many collections were deposited with use restrictions on the entire collection. In cases where public domain material whose use would be permitted by the local community was protected by a deposit agreement restricting access or where permission is granted only to listen to the recordings but not to transcribe any of them or obtain a copy for analysis, the archives cannot permit any other use.
11. An early example is Karl Marx. In the opening paragraphs of The Eighteenth Brummaire of Louis Bonapart he writes “just when [people] seem engaged in revolutionizing themselves and things, in creating something entirely new, precisely in such epochs of revolutionary crisis they anxiously conjure up the spirits of the past to their service” (Marx 1972 : 437). Although he criticizes this tendency, he is right to note that it often happens.
12. A dean at Indiana University once told me that it was not very interesting to know that people all over the world used and respected the Archives of Traditional Music. Why, he asked, would the people of Indiana want to serve the rest of the world through an archive? As always, I realized, thinking has to be global but action has to be local. Within a year I had acquired a large collection of Hoagy Carmichael manuscripts, papers, recordings, and memorabilia (Hoagy Carmichael was a native son of Indiana and a beloved university alumnus) and the world-famous Archives of Traditional Music was on a much sounder institutional footing in the university, the State of Indiana, and, by extension, the world.
Ammann, Raymond. 2000. The Archive Works of the Vanuatu Cultural Centre to Preserve and Maintain Melanesian Music. Paper presented at the conference “100 Years of the Berlin Phonogramm-Archiv” in Berlin, October 2000.
Boyle, James. 1996. Shamans, Software, and Spleens. Cambridge: Harvard University Press.
Brown, Michael F. 1998. Can Culture be Copyrighted? Current Anthropology 19(2):193-222.
Jabbour, Alan. 1983. Folklore Protection and National Patrimony: Developments and Dilemmas in the Legal Protection of Folklore. Copyright Bulletin 17(1):10-14.
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Summary, Responses, and Discussion
Anthony Seeger began his summary of rights management issues by linking the issue of intellectual property with preservation. The best way to keep folklore alive, he reminded the audience, is through other people. Folklore is a lived experience and art form; it is not to be fossilized and preserved. Making it possible for people to use, reuse, and recreate folk heritage is vital to its survival. Rights management, therefore, is at the very heart of both preservation and access. Folklore by its nature is a web of rights, obligations, and mutual significances.
We need to answer the question of whom the archives are for, which is another way of asking who owns culture. At a time when privacy concerns are growing in the United States, largely because of the expanded access and distribution available through the Web, none are touched more deeply by privacy issues than the folklorist and those whose culture has been recorded by folklorists. Folklorists do not own the content of their documentation and they must actively involve the creators or those recorded in securing rights for dissemination.
Speaking from his experience as the former director of a folklore archives, Mr. Seeger urged that institutions in custody of traditional materials periodically conduct a systematic review of how they manage their access and use rights. This means that old agreements that are outdated—too restricted or do not address new media rights—must be renegotiated.
- John Simson, Recording Industry of America
- Rayna Green, Smithsonian Institution
John Simson began his remarks with advice about clearing rights with major recording labels. While recognizing that the participants may have had bad experiences of their own with companies, he said that adopting an adversarial relationship is usually counterproductive. Users have an obligation to know what their own rights and limitations are as well as those of the companies and rights holders. Nothing substitutes for knowledge of the Copyright Act, especially Sections 107 and 108. Knowledge of case law is equally important for understanding fair use and how it works, because most fair use exemptions are decided case by case. He warned that certain contracts between a donor and an institution can be far more restrictive than copyright would ever be. It is important to negotiate contracts that respect the rights of the donor and of those documented but also provide for access in some form.
Rayna Green set the stage for her remarks by saying that the issues before us are not about the size of our bandwidth but the depth of our souls. These issues are fundamentally ethical, and even technological means should work to implement ethical solutions. Intellectual property issues are about who owns history, who can control it, and who benefits from it or gets harmed by it. In traditional communities not everyone has the right to knowledge; this fact alone puts traditional and Western societies into conflict when coming to terms with rights to access, use, and reuse. She referred to most of the documentation currently in libraries, museums, and archives being there as the result of robbery but said that a way to deal honorably with this legacy is to work with descendants of the communities documented to determine how best to deal with present-day access to this knowledge. Start with simple questions: Do you want this knowledge or song or performance to be recorded? Do you want it to be preserved by yourself, by a third party, or not at all? What are your interests in this documentation and what are your needs for access or control? It is incumbent on folklorists, ethnomusicologists, and anthropologists to ask these questions in the context of the community from which the knowledge emerges. Sit and talk with people in their own communities and discuss not only how their community would define and document itself but also what their ethical understanding is of how to treat this documentation over time. Best of all is to train members of the community to document and preserve.
These three speakers, touching on law, ethics, and professional practices, sparked an exploration of the very fundamentals of the business of those who document communities and their creativity.
Some participants argued that there seemed to be a gulf between the ethical and the legal—what people should do and what the law allows them to do. Mr. Simson urged participants to press their legal counsel to explain to them not only what is legally sanctioned but also what is ethical and what course of action or lack of action would lead to the greatest good for all parties concerned. Law originated as an attempt to codify ethical behavior and to generalize it objectively. No one should use law to hide from an ethical responsibility.
The American Folklore Society adopted a code of ethics in 1987 that asserts the primary responsibility in research is owed to those studied. Their dignity and privacy must be honored. When knowledge is shared and information gathered on the basis of trust between persons, those who agreed to be studied must be safeguarded from a breach of trust.
Several participants challenged both Mr. Seeger’s and Ms. Green’s invocation of the community as some ethical core. Who defines the community? Is it not true that many traditional cultures are in fact patriarchal and oppressive and withhold information from women and minors for the purpose of subjugating them? How are researchers entering a community for a documentation project to know which voices to listen to, which voices constitute the community?
Others asked about the ethics of the library and archival communities. What about their professional commitment to equal access to information? Although some contemporary Western voices say that information wants to be free, Ms. Green would answer that knowledge is always property and those who create it have the right to take it to the grave with them. In her view, people from traditions in which knowledge belongs to a community object to making information and knowledge into commodities. Moreover, they do not believe that knowledge per se belongs in the public domain. The inherent conflicts that are aroused on this subject were acknowledged, and it seemed clear that frank and respectful communication was the first step to finding mutually acceptable resolutions. Given the importance of this work, consensus emerged that a large group including all stakeholders and experts, from lawyers and folklorists to ethicists and community members, should convene to establish ethical guidelines that could be adopted by professional associations, taught in schools, made available online, and so forth.
The law is an area of ambiguity and conflict even though it is created to be an instrument for regulation and conciliation. Law attempts to codify ethical practice but, like ethics, is bound by culture and subject to being interpreted differently by those with different interests. Copyright law was designed to protect neither traditional ideas nor original ideas but rather the original expression of an idea, which leaves many traditional arts and artists unprotected. How the law will play out in the digital realm is not at all clear. One lawyer pointed out that putting archival, unpublished materials on the Web, for example, for the simple sake of increasing access may be a form of publishing and may change the rights status of that work. In the many cases in which we simply cannot establish rights, we should find a way to free these materials from potential silent death that results if they are never made available. Rights in the digital realm are highly ambiguous, which has led many archives to be overcautious and restrict access for largely defensive reasons. The increasingly proprietary or aggressive practices of distributors and producers have infected the legal cultures in archives, universities, and public institutions in general, making them more cautious in protecting fair use.
Property laws differ from one country to another even though the Berne Convention and World Intellectual Property Organization have attempted to harmonize national distinctions in the context of a global marketplace. Many participants were also concerned about moral rights, a rather fuzzy concept in the United States. When a record company holds materials from release for defensive purposes, for example, because they simply have no good records about rights inherent in certain materials, what recourse do we have? A European colleague contended that the extension of rights forward and backward in time in Europe is really hampering the essential work of libraries and archives and cautioned that too much protection will result in massive losses of heritage materials.
Education and Training
All agreed that it is imperative that legal and ethical issues be incorporated into formal education programs for scholars who tend to think of themselves as interested in content alone. They must be educated about the law, sensitive to the concerns of the communities with which they are working, and conscientious about seeking permissions from those whom they are documenting. They must also find out whether the people whom they record have the right to perform the works in question. Training for midcareer professionals should be offered regularly by scholarly societies, and focus sessions on rights management should be a regular part of annual meetings. Web-based training or information sites for those outside professional communities should be instituted to begin the critical transfer of skills to members of the communities. Institutions should codify all the information they have about the rights in the materials they hold and let researchers know on entry to the archives that this information is available to be consulted. There is also an urgent need to capture complex rights information in metadata for materials made available digitally.
Many participants expressed frustration that they had so little voice in the recent legislative activity surrounding digital copyright, but lawyers present insisted that advocacy is possible without having the financial resources available to entertainment companies. Advocacy should be seen as part of the ethical responsibility of those who understand the value of folk heritage. Education of lawmakers through their constituents, for example, can be a powerful way of alerting legislators to what is at stake.
Above all, discussions of rights—be they the rights of those documented to control access to information about them or of researchers to have access to music held in record company vaults because of lack of proper clearance information—must be grounded in a firm understanding that rights imply relationships. Stakeholders should develop what some participants called a map of the law that charts these relationships.