Historical Audio Recordings Disappearing; Copyright Partly To Blame
from the yet-again... dept
Recently, we pointed out that various film archives were disintegrating, and noting that perverse copyright laws were partly to blame. Now, Copycense points us to the news that experts are also quite worried about audio recordings degrading and disappearing -- including recent recordings, such as from 9/11 and the 2008 election. This is part of a study commissioned by the Library of Congress -- so it's not just some random researchers. Thankfully (unlike the article on films) the study and the reporting about it highlights the copyright issue:A hodgepodge of 20th century state anti-piracy laws also has kept most sound files out of the public domain before U.S. copyright law was extended to sound recordings in 1972. The study found only 14 percent of commercially released recordings are available from rights holders. That limits how much preservation can be accomplished, Brylawski said.The full study (The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age (pdf)) suggests that copyright laws be changed to deal with the archival problem. The study mentions the famous (and mostly ignored) UK Gowers study that found that extending copyright was a mistake (Gowers later admitted, separate from the report, that the economic evidence clearly indicated copyright terms should be shortened). The study also quotes many researchers, academics and archivists who point out how copyright law has made it quite difficult for them to do basic research and other useful things without violating the law.
While fair use is frequently invoked, there is little case law interpreting its application to specific situations. Some archivists believe the lack of applicable case law discourages institutional general counsels from authorizing preservation and access programs on the basis of fair use. Fair-use provisions in the copyright law (Section 107) permit use of excerpts of copyrighted materials, including recordings, for educational and scholarly purposes, for citation in news reporting and criticism, and for nonprofit activities. However, the courts have interpreted fair use to be an affirmative defense. In other words, the burden is on the defendant to prove fair use; the plaintiff does not need to establish that the use falls outside fair use. Besek further notes that "favored uses are not automatically deemed fair, and other uses are not automatically unfair. The determination depends on the facts of a particular case."Separately, the report notes that DRM and the DMCA's anti-circumvention provision is a real problem for researchers and archivists.
Most witnesses at the hearings conducted in support of this study who were affiliated with educational institutions expressed a belief that copyright law as it applies to sound recordings is too complex to interpret easily, too restrictive, or both. Section 108, for example, which limits access to digital copies made available under that section to library premises, is too narrow to address all educational needs. One witness called for "premises" to be expanded to include network domain, in order to accommodate "the manner in which students and scholars use information in the current academic and scholarly environment. Increasingly, learning is occurring off-site, that is, at home, in the dorm or just anywhere on campus, in addition to the classroom and library."
In the end, the study says that copyright law needs to change to deal with this very real challenge:
Creation of new copyright laws or licensing procedures that acknowledge best practices in audio preservation and assure access to audio heritage is essential to ensure the preservation of that heritage and its understanding and appreciation by generations to come.It then repeats five suggestions made by The Association for Recorded Sound Collections (ARSC), such as changing the fact that pre-1972 recordings are all limited under ancient state laws, rather than federal copyright law (meaning they won't be in the public domain for much, much, much longer than more modern recordings). They also suggest moving copyright term back (just slightly) to 50 or 75 years, supporting orphan works legislation, enabling compulsory licensing to copyright holders for anyone wishing to reissue "abandoned" recordings and allowing non-profits to backup and archive sound recordings without violating copyright. The recommendations are, frankly, a bit weak, but in an era where the government only seems to want to strengthen copyright, it's nice to see at least some effort to push back in some areas. Of course, the likelihood of the Library of Congress actually following through on any of these recommendations seems slim at best.
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Problem
Even then, won't it be too late for some of these recordings?
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The government seems to think that IP will save America from competition because they think they can put all knowledge locked away in IP lockers that Americans control, which may happen for know but it will not endure like all other business they will get trashed if they keep using crutches to make money.
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Suggestions
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not disappearing
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Re:
Published sound recordings were added to the list of works protected under federal copyright law in February 1972. Prior to this date they were protected solely under the law of a few states that had enacted their own species of copyright law for unpublished works (I believe only about 10 states have such laws, California being one of them).
Between 1972 and 1978 federal copyright law "kicked in" only upon a work being published with a proper copyright notice. Federal protection was cumulative to protection under state law, with state law continuing to have applicability until 2067 (or is it 2047...I have not checked the federal statute) per the terms of the current federal statute.
As a practical matter, I have to wonder just how it is possible to archive a work protected under state law if the sine qua non for state protection was the absence of purlication. It seems to me it is a bit difficult to archive such a work (though not necessarily impossible).
This facet of state law being generally limited to activities within a state, I also have to wonder how one can be held liable either civilly or criminally if the act of copying takes place in a state without any such law.
I guess the point I am trying in a somewhat hamfisted way is that there are a plethora of ways by which one may be able to avoid the application of state law to archiving pre-1972 works, i.e., unpublished sound recordings. This suggests that there may be a barn door that is wide open, within which barn archivists may be able to seek safe harbor, not to mention that this may very well be a situation where the First Amendment may actually come into play.
Hence, your reference to "a pair" seems quite apt. Archivists should be telling their lawyers who are almost invariably prone to telling clients what they cannot do to change gears and tell them what it is that they can do.
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Copyright
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