The Library of Congress has announced the completion of a commissioned report that examines copyright issues associated with the preservation of commercial sound recordings. This new report from the Library of Congress and the Council on Library and Information Resources addresses the question of what libraries and archives are legally empowered to do to preserve and make accessible for research their holdings of pre-1972 commercial sound recordings.
The report, "Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives," is one of a series of studies undertaken by the National Recording Preservation Board (NRPB), under the auspices of the Library of Congress. It was written by June Besek, executive director of the Kernochan Center for Law, Media and the Arts at Columbia University.
"Professor June Besek's study lucidly summarizes how audio preservation is affected by state and other laws," Librarian of Congress James H. Billington notes in his introduction to the study. "Without this work we would not be aware of the challenges implicit in the laws and understand their full impact. This report will be of great value in creating a national preservation plan. We are grateful to Congress for supporting this significant work and to June Besek for bringing light and clarity to a complex topic."
Commercial sound recordings made before 1972 are covered by a patchwork of state laws, rather than by federal copyright law. Thus, state laws apply to libraries and archives seeking to copy these fragile historic recordings in order to preserve them. However, state laws are far less clear-cut than federal copyright law. States may protect copyright through criminal, common or civil law.
"Given the amorphous nature of common law and the variations among states, there is considerable uncertainty about what is allowable," Besek writes in the report. Nonetheless, she asserts, it seems unlikely that activities within the bounds of what federal copyright law permits under fair use and special library privileges "would be actionable under state law with respect to pre-1972 sound recordings."
Besek provides a succinct overview of relevant aspects of U.S. copyright law, explains the nature of common law and criminal and civil statutes that apply to pre-1972 sound recordings and examines legal restrictions on digital preservation and dissemination of sound recordings, as well as technological protection issues. An appendix presents the results of preliminary research concerning state law. She notes that a more extensive survey of state laws, currently being undertaken on behalf of the NRPB, will provide additional guidance to libraries and archives, but she also emphasizes the need for new legislation.
"A survey of state laws will reduce the uncertainty concerning the scope of state law protection and likely suggest ways to minimize the risk of liability in connection with digital preservation and dissemination of pre-1972 sound recordings," Besek concludes. "But our research suggests that even a detailed survey will not completely resolve these issues. New legislation to establish a library privilege to preserve and appropriately disseminate these materials would be very desirable."
"Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives" is available free of charge at www.clir.org/pubs/abstract/pub135abst.html.
Established by the National Recording Preservation Act of 2000, the advisory National Recording Preservation Board (www.loc.gov/nrpb/) is appointed by the Librarian of Congress and consists of representatives from professional organizations of composers, musicians, musicologists, librarians, archivists and the recording industry. Among the issues that Congress charged the board to examine were access to historical recordings, the role of archives and the effects of copyright law on access to recordings.