Library of Congress: Copyright is killing sound archiving

In 2000, the US National Recording Preservation Act mandated the Library of Congress to conduct an in-depth study on the state of audio preservation and archiving. The Library has finished its study and one of its most damning conclusions is that copyright -- not technical format hurdles -- are the major barrier to successful preservation. Simply put, the copyright laws that the recording industry demanded are so onerous that libraries inevitably have to choose whether to be law-breakers or whether to abandon their duty to preserve and archive audio.
"Were copyright law followed to the letter, little audio preservation would be undertaken. Were the law strictly enforced, it would brand virtually all audio preservation as illegal," the study concludes, "Copyright laws related to preservation are neither strictly followed nor strictly enforced. Consequently, some audio preservation is conducted."

While libraries supposedly have some leeway in preserving audio recordings, they find it "virtually impossible to reconcile their responsibility for preserving and making accessible culturally important sound recordings with their obligation to adhere to copyright laws". The problem is that the current provisions in law for audio preservation are "restrictive and anachronistic" in our current digitial age.

There are more problems. While the recording industry undertakes some preservation, they will only preserve those recordings from which they think they might profit in the future (what a surprise). For instance, consider a researcher working on vaudeville who may be interested in vaudevillian recordings on cylinders.

"These performers may have been headliners in their time, but today their names are virtually unknown," the study details, "While scholarly interest in these recordings is high, their economic value to the property holder is negligible. However, legal restrictions governing access to a cylinder produced in 1909 are the same as those governing a compact disc made in 2009, even though it is highly unlikely that the 1909 recording has any revenue potential for the rights holder."

US Library of Congress: Copyright Is Destroying Historic Audio (Thanks, Dwiff!)

(Image: Historic Recorded Sound Demo May 12, 2010, a Creative Commons Attribution Share-Alike (2.0) image from esteemedhelga's photostream)

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  1. I think in order to receive copyright protection on a piece of work, wether it be audio, visual or print, then a copy of the the source must be sent into some sort of government agency which is charged with archiving and categorizing said work. They could also be charged with determining which pieces become public domain and easily offer access to them.

    The content owners surely don’t agree, but the original idea behind the copyright was to add to the collective knowledge of the society while offering some protection to the creator. As it stands right now, the society is on the losing end of this deal. Sad, really.

    1. It’s more than ironic that the entity of which the Library of Congress is a part is the cause of ‘PPS’ (preservational phono sclerosis). In the case of a reasonable (“aye, there’s the rub”…whoops!, I’ve just infringed upon Shakespeare!) definition of ‘old’, ‘protections’ of copyrights is a misnomer. It’s the result political prostitution (hopefully not the carnal kind) of those members of congress who were bought by special interests.

      Read David Brooks’ Op_Ed in today’s 10-19-10 to learn how I coined “PPS”. It pertains to an analogous problem that’s infinitely more serious than preservation of audio recordings.

    2. Not really. Copyright began in the 17th century to protect authors from rapacious publishers. The interest of the general public were not a consideration. Now, the rapacious publishers try to convince the artists (with some success) that they have been protecting the rights of the artists all along.

    3. “I think in order to receive copyright protection on a piece of work… then a copy of the the source must be sent into some sort of government agency which is charged with archiving and categorizing said work.”

      This was only ever in the US, and even there you’re a little bit behind the times… this has not been the case for over three decades, since the changes made to the US Copyright Code in 1976. (I may be off by a year or two, but it’s been about that long.) It is still possible to register and deposit a copy of a work with the Copyright Office, but it is not required.

      1. Unfortunately, even at The Library Of Congress, works are deteriorating faster than they can transfer and/or preserve them. The artist and his family should be responsible for archiving their own works. If they sold out to a record label (i.e. Van Halen) for a few advance dollars, then too bad for them personally. But the loss to the Nation/World is supposed to be mitigated BY The Library Of Congress. That’s WHY it exists! That they are not keeping up with their work is the REAL NATIONAL TRAGEDY!

  2. This is great to have them stress this fact (even if the cynic in me doesn’t think much will change for a while), but why did it take 10 years for them to come up with something so obvious?

  3. This should seriously be protected by fair use… and even if its not, why doesn’t the library just claim some form of municipal immunity?

    LOL or they could just use the governments favourite excuse and say “We are archiving this music for ‘national security'” … you don’t want to support the terrorists do you?

    ;)

  4. Jim,
    lol I wrote the same thing on the EFF Facebook wall (where I got linked to this article)…

    This report took TEN YEARS to complete? Its not like there were any major copyright law changes in that 10 years which would have caused them to redo the report. DMCA was passed in ’98.

  5. The Edison wax cylinder is appropriate for this article. You ever see what the terms were on those? Absurd, really. Quoted from a picture I took of one at an antique shop:

    “This record is sold by the National Phonograph Company upon the condition that it shall not be sold to any unauthorized dealer or used for duplication and that it shall not be sold, or offered for sale, by the original, or any subsequent purchaser (except by an authorized jobber to an authorized retail dealer) for less than 35 cents apiece.

    Upon any breach of said condition, the license to use and vend this record, implied from such sale, immediately terminates.”

    I think my next round of business cards will read “Authorized Jobber.”

    1. The Edison wax cylinder is appropriate for this article. You ever see what the terms were on those? Absurd, really.

      Prolly cos Edison was a competition-killing “douchebag”. Tankriot’s ep on Tesla widened my eyes to a few things about that over-celebrated skid mark on history.

      http://www.tankriot.com/2008/046/

  6. Dunno, but it seems that those 1909 cylinders are out of copyright, so what’s the complaint? If they were talking about, say, blues recordings from the 1950s, okay, but I think the example is mistaken.

  7. but wait, who made me think that hometaping is killing music? what a sham. the loss of historic recording is not what i meant when i said the edison era was over.

    .~.

  8. I’m for a use it or lose it policy. Unless the copyright holder is actively selling the “product” then they should lose the right of copyright enforcement. The product should default to public domain.

  9. So who is going to sponsor a law allowing libraries and archivists to safely ignore all copyrights that are over 50 years old? I believe that would still fulfill our Berne treaty obligations, while allowing preservation work to be done.

  10. the good side: american culture eradicates itself.
    without useless laws like the DMCA there would be millions and millions of songs from the united states to be globally available and maybe even archived. now we all can be sure that this is not going to happen.
    nobody will care for a michael jackson, the beastie boys or madonna in 100 years of time – and not because of the quality of the cultural achivements but because of the society that made those values.

  11. Another American law that shot itself in the foot because it allowed money to lead its path. It is so sad that libraries and such have to skirt the law in order to protect things of infinite value(mostly non-monetary. The libraries are for the people as are the contents. It makes me sick thinking of all the fatcats that have their hands under the table when it comes to making these kinds of laws. They and their children are not the ones going to the local library. Do these fools not watch things like The History Channel and not feel the wonder when something ancient is found. Imagine finding a long lost recording 100 years from now and because of the current copyright laws, it sat on a shelf in a room (imagine the last part of Raider of the Lost Ark) in it’s original state and deteriorated because someone followed the law and it is gone forever. I’m sure everyone is clamoring for a bootleg copy of something Thomas Edison said before their parents were born. Another American Tragedy.

  12. #8 Ouch. There’s a problem with that. By doing what you stated, you’re opening it up for other people to then claim copyright over something you own (and if not directly, with minimal changes to it). You’d effectively be opening up copyrights to the mess which patents have to go through in proving that you had a copy before it was commercialized in order to avoid getting in trouble with someone else’s copyright claim.

    I think a better approach would be to get the Supreme Court to overturn Eldred v. Ashcroft (likely won’t ever happen, but it’s this case that stuck us with perpetual copyrights, since they ruled that congress continually extending older copyrights didn’t constitute violating the “limited copyright length” clause of the constitution, so long as they didn’t explicitly create a bill that said that copyrights were forever, ugh), then make copyright length be changeable on the same level as an amendment (even better would be to move the control away from someone who has a direct interest in making more money off of copyrights, like the Library of Congress, but that could lead to more abuses). There’s been quite a few studies that have shown that if a content creator doesn’t benefit from their copyright in the first 14 years, then they become statistically unlikely to see any benefit from it at all (as in, next to 0%, not less than 50%), so that should be the first copyright length term set under such rules.

  13. The problem with vintage audio recordings is that prior to 1970, federal copyright did not really protect audio. Instead, audio recordings were covered by state copyright law, which arose from common law and sometimes were not even explicitly written as statutes. There usually was no termination of copyright over time (section 8 of article I’s “limited time” applied to federal copyright law, not state). In 1970, the federal government assumed exclusive authority for audio copyrights, but grandfathered in the older situation.

    It leaves vintage recordings in a legal limbo, with potentially 50 different copyright laws depending on the state where it was recorded (and few modern lawyers or judges are familiar with common law tradition of state copyright). Foreign copyrights complicate it further. A lot of companies have gone ahead and issued a lot of vintage stuff… the risk of liability is pretty low. However, the risk is always there.

  14. I’m sympathetic, but this particular article makes no sense at all. Something recorded in 1909 is no longer under copyright, so where’s the problem?

    Maybe someone would like to do a rewrite so the article actually makes a point, and illustrates it with something relevant?

    1. This applies to everything except sound recordings, some of which are still under copyright because of state laws instituted before the 1927 copyright act. Because of this, some sound recordings from the 1800s are still under copyright.

    2. I think you’ve missed the point. Something recorded earlier than 1909 absolutely CAN be still under copyright. Under the current situation, that stuff can be under copyright forever, specifically because the law has not consistently covered recordings the way it has covered print materials. If there were a reasonable way to determine that things are public domain, or to find who OWNS the copyright, libraries would be able to preserve a lot more. But right now we risk being sued because you never know who’s going to pop up to claim rights to what. They might or might not win the case, but no library has the money to spend constantly hiring lawyers to defend itself against all possible claims. . . . so most of us err on the side of caution to offer what services we can.

  15. I totally understand the concern of archivists and the progressive copyright community over this report, but some of the angst is due to an overly protectionist reading of the Copyright Act by the authors of the report.

    The Library of Congress, as excellent of an institution as it is, can be conservative. There are many legal ways that archivists and librarians can make totally fair and legal preservation copies of their collections.

    1. Yes, but…. Sometimes adherence to the law becomes pathological. People are programmed to follow the law, whether or not they know or understand it. In cases of doubt they prefer to interpret that law safely but to their own disadvantage. There are any number of situations where copyright infringement would be nothing more than a technicality, but law-abiding people faced with that situation don’t know that. They have, however, seen TV reports of outrageous amounts demanded by the lawyers for the film and recording industries, and are intimidated. They imagine themselves with $100,000 legal bills over an action that would most generously provide $10 in royalties. They would gladly pay the $10 if they could easily find who to pay.

      Sure there are ways where librarians and archivists can make perfectly legal copies, if they could ever make sense of what the law really is, and if the institution’s lawyers were not overly cautious.

  16. I downloaded about 8 gigabytes of compressed out-of-print blues and psych-rock recently from various blogs so I guess I’m doing my bit to preserve the music I love…

  17. BTW: isn’t the ‘lending’ of books or videos also against [these dumb] Copyright Laws? (for lending, or reselling, does not create any revenue for the rights owner)

    Some DVDs, actually, clearly state this disclaimer prohibiting lending…

  18. There is some misunderstanding about US copyright law for sound recordings here.

    Edison cylinders, like all Edison recordings, are public domain only because Edison specifically gave his sound recording copyrights to the U.S Park Service. But ALL other recordings made up to 1972, no matter how old they are (even 1880’s) are covered by the anti-piracy laws of the states. Some of the state laws, like New York’s, have no expiration for protection. As of the latest extension, the state laws will cease to be operative in 2067. All pre-1972 recordings will go into the public domain at that time. But that means the earliest recordings will have had a protected time of roughly 180 years. And by then, most of those recordings will no longer exist.

    The only way that early American sound-recording history can be preserved is by people operating outside the law or outside the country. That’s a simple fact. But it is highly unlikely that this fact will cause Congress to do anything which would upset the handful of corporations which own these recordings.

  19. Well, I guess it’s technically the ultimate copyright protection policy:

    If no copies exist, no further copies can ever be made and thus no copyrights can possibly be violated.

    It’s a sad state of affairs. But it’s what to be expected when special interest groups are given almost-free reign, I’m afraid: do you think many copyright holders care for preservation of culture? They care for their income. If it will mean one extra dollar on their bottom-line, they will personally destroy all the worlds cultural heritage.

    I exaggerate, of course, but you get the idea.

  20. A thought:

    If the government were to treat the intellectual property supposedly being protected by copyright as though the intellectual property were real property, it would be interesting to see the decision of Kelo v New London applied. In both cases, it is the taking of privately-held property for a public-use benefit.

    Granted, the government would have to provide just compensation. Here’s where things get awesome: The government would not have to factor in any speculative schemes that the record labels might come up with. The fact that these records are collecting dust hoists them by their own petard.

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