February 17, 2018

Copyright Office Supports Federalization of Pre-1972 Sound Recordings

In a report issued Wednesday, the U.S. Copyright Office recommended that sound recordings made before February 15, 1972 be brought under federal jurisdiction.

“We believe that bringing pre-1972 sound recordings into the federal copyright system serves the interests of consistency and certainty, and will assist libraries and archives in carrying out their missions while also offering additional rights and protection for sound recording right holders,” Register of Copyrights Maria A. Pallante said in a statement.

Until now, a hodgepodge of state common-law regimes has governed the protection of these works. The result has often been a legal fog that has confused and chilled efforts to preserve historical sound recordings and make them accessible.

“In order to reproduce and distribute a particular historical sound recording with some confidence as to noninfringement, a library would be faced with the time-consuming task of finding answers to a host of obscure, often unresolvable questions about the work,” Abigail Phillips, a senior staff attorney of the Electronic Frontier Foundation, wrote in comments that the Copyright Office had solicited from stakeholders before making its recommendation. “Primary, and most challenging, are questions of which state’s laws govern protection of the work, and whether those laws address the contemplated use.”

K. Matthew Dames, Syracuse University’s Copyright & Information Policy Adviser, wrote to the Copyright Office about the self-limiting consequences that arise from such uncertainty.

“Doing this work requires such a tremendous resource allocation that many institutions – including Syracuse – simply may choose not to make historical works available, thereby leaving a huge gap in the nation’s cultural memory,” Dames wrote.

The Belfer Audio Laboratory and Archive at Syracuse University (“Belfer”) has been among the institutions urging the Copyright Office to recommend that copyright protection for sound recordings be determined exclusively according to the Copyright Act.

Belfer has the largest collection of commercially-released audio cylinders in North America (including the Edison cylinder collection), and an extensive body of 78-rpm discs. But the split at 1972 in the way copyright law provides protection to sound recordings “has proven so burdensome so often that it has threatened the viability of several of our institution’s archival projects, and contributed greatly to indefinitely stalling several others,” Dames wrote.

The Copyright Office report says that according pre-1972 works the Copyright Act’s express federal statutory privileges, such as fair use (Section 107) or the reproduction by libraries and archives exemption (Section 108), would help dispel concerns about legal risks and “provide more certainty and, in general, more opportunity than state laws to preserve and make available sound recordings from many decades past.”

The report recommends that the term of protection be 95 years from publication, and in no case would protection continue past February 15, 2067 (i.e., 95 years after the placement of sound recordings under federal protection in 1972). As a 2010 report by the Library of Congress National Recording Preservation Board (NRPB) noted, this term of legal protection, in comparison with other copyright-protected works, is unprecedented in length.

“A published U.S. sound recording created in 1890 will not enter the public domain until 177 years after its creation, constituting a term of rights protection 82 years longer than that of all other forms of audiovisual works made for hire,” as the 2010 report, “The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age,” noted.

Patrick Loughney, the chief of the Packard Campus for Audio Visual Conservation at the Library of Congress, supported bringing sound recordings under federal jurisdiction, but he also notes (as does the 2010 LC report) that the federalization of these works, and subsequent efforts to comply with the rigors of federal law, could have some drawbacks.

For example, Section 108 only permits “…three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen…”

Loughney writes that not only is the limited number of permitted copies at odds with the objectives of best-practice preservation in the digital era (a variety of digital copies in a variety of formats, stored in a variety of locations), but also:

To deliberately delay preserving a culturally, historically or aesthetically important sound recording until it is in a deteriorated condition is a foolhardy practice that could constitute malfeasance on the part of a professional librarian or archivist. As they now exist, Sections 108 (b) and (c) place recorded sound archivists who perform their duties to the highest professional standards, plus the libraries, archives, museums and other institutions for whom they work, at odds with the word of the law, if not its intention.

The Association of Research Libraries(ARL) and the American Library Association (ALA) shared Loughney’s Section 108 concern, adding that “the utility of these provisions is also significantly impaired by the requirement that digital copies be accessible only on the premises of the library or archives.”

Eric Haberson, the chair of the legislation committee of the Music Library Association wrote in overall support of the proposed recommendations, but he noted that limits on access (as well as confusion about copyright status) can discourage funding for digitization projects.

“A digitization project which saves materials for the future but which cannot make them widely accessible, does not tend to be viewed favorably, including digital preservation projects,” he wrote to the Copyright Office.

The ARL and ALA also had expressed concern about “excessive statutory damages” that the Copyright Act provides as a remedy for infringement: $750 to $30,000 per work infringed for registered works, and the penalty can be increased to $150,000 per work for “willful” infringement.

“Multiplied across a typical library mass digitization project, even per-work penalties on the lower end of the statutory spectrum could easily add up to devastating penalties,” the groups wrote.

ARL and ALA had recommended that the Copyright Office simply confirm “the availability of a flexible fair use doctrine under state law.”

Michael Kelley About Michael Kelley

Michael Kelley (mkelley@mediasourceinc.com) is the former Editor-in-Chief, Library Journal.