This country’s fascinating and invaluable patrimony of recorded sound and culture is at risk. Libraries, archives, museums, and historical societies have approximately 46 million recordings in their collections and more than six million are “in need” or “in urgent need” of preservation, according to the National Recording Preservation Plan released by the Library of Congress (LC) in December. The condition of another 20 million of the recordings is unknown, and these numbers do not include important material in private hands.
This is a sprawling, complex issue dispassionately and, in a certain sense, maddeningly chronicled in the LC report, which is the first national plan for audio preservation and is the culmination of a decade of work by the library and the National Recording Preservation Board. Unless the report’s recommendations are acted upon, which would allow for the digitization of and broader access to endangered analog formats, then it is likely that within the next 15 or 20 years much of this soundscape will have become so degraded that it will be all but impossible to preserve.
There are many steps to be taken—from expanding the physical infrastructure necessary to store recorded sound collections and educating specialists to work in such facilities to improving through a national discography the discovery and cataloging of such material—but without doubt the key solution remains one of the most foreboding: copyright reform. Many of the other reasonable and thoughtful actions will be for naught if they remain at cross purposes with the underlying laws that allow libraries, archives, and educational institutions to preserve and grant access to older recordings.
Sound recordings are not like other works. They were not covered by federal copyright law (Title 17) until February 15, 1972. As a result, pre-1972 recordings are governed by disparate state laws, leaving ownership issues and terms of protection variable and unclear, which gives pause to those who may want to copy and disseminate older sound recordings. And unless pre-1972 recordings are brought under federal copyright law, this state of affairs will not change until February 15, 2067, when the works would enter the public domain. However, many pre-1972 recordings, which often reside on very friable media, will deteriorate long before that date.
The U.S. Copyright Office, in its congressionally mandated 2011 report, Federal Copyright Protection for Pre-1972 Sound Recordings, noted that federalization of pre-1972 recordings “would best serve the interest of libraries, archives and others in preserving old sound recordings and in increasing the availability to the public of old sound recordings.”
For example, such reform would provide the legal framework that would facilitate, by limiting potential liability for copyright infringement, the authorized use of orphan works.
Even federalization, however, has its pitfalls. To cite just one example, it must be accompanied by a broadening of Section 108(c) of the Copyright Act, which, perversely, prohibits preservation of a published recording before it has actually deteriorated.
The challenges extend to 21st-century recordings as well. These works are overwhelmingly digital audio files distributed online by companies like Apple and Amazon. They are governed by licenses that limit use to “personal, non-commercial, entertainment” only. Licenses trump copyright law, and these agreements “effectively make it impossible for research libraries and archives to legally purchase copies of file based recordings, while simultaneously preventing legal educational use of these recordings in the classroom and impeding preservation,” according to LC.
As a result, the bulk of 21st-century sound patrimony will be held privately by companies and individual artists who may not care about long-term preservation.
The LC’s plan points the way toward an effective national collaboration to preserve our sound cultural legacy. It deserves everyone’s utmost attention.
Michael Kelley, Editor-in-Chief