October 7, 2009 Library Study Shows Arcane State Laws Threaten Preservation of America’s Aural Heritage

While U. S. lawmakers wrestle with monumental issues such as health care reform, the economy and two wars, they are also tackling the problems caused by the lack of a national copyright law to protect pre-1972 recordings. The absence of a federal copyright law is inhibiting the preservation and accessibility of much of America’s aural heritage because sound recordings published before 1972 continue to be governed by a confusing array of state laws, common law and judicial decisions.

The Library of Congress announced today the release of the fifth in a series of landmark studies commissioned by the U. S. Congress and published by the Council on Library and Information Resources (CLIR) that highlight the challenges facing archives, libraries and other cultural institutions specializing in the preservation and public access to historic recorded sound materials. The report examines copyright laws in 10 U.S. states related to sound recordings released before 1972. This is the first in-depth analysis of individual state copyright laws.

“At a time when the responsibility for sustaining America’s recorded sound history and culture is being ever more rapidly transferred to publicly funded libraries and archives, it is vitally important that public policy makers come to terms with the legal barriers that those institutions face in meeting their obligations to preserve and provide responsible public access, while also protecting the rights of copyright owners,” said Associate Librarian of Congress for Library Services Deanna Marcum. Congress has recently directed the U. S. Copyright Office to “…conduct a study on the desirability of and means for bringing sound recordings fixed before February 15, 1972, under federal jurisdiction.”

Titled “Protection for Pre-1972 Sound Recordings under State Law and Its Impact on Use by Nonprofit Institutions: A 10-State Analysis,” the study was issued under the auspices of the Library of Congress National Recording Preservation Board (NRPB). It was undertaken for the Library by the Program on Information Justice and Intellectual Property at American University’s Washington College of Law, under the supervision of Professor Peter Jaszi with the assistance of Nick Lewis.

In this study, Jaszi, Lewis and American University students examine criminal and civil laws in 10 states, as well as judicial decisions and common law, pertaining to sound recordings produced before 1972. They provide a brief history of the formulation of these laws and examine the laws and court cases that limit the extent to which nonprofit institutions can preserve and provide public access to pre-1972 sound recordings. As Jaszi and his students note, state anti-piracy laws alone do not define the legal uses of pre-1972 recordings. Legal uses of these recordings are also affected by common law copyright, unfair-competition laws, rights of privacy, and federal copyright law related to underlying works, such as musical compositions performed on the recordings.

The first two Library of Congress studies on sound recordings and copyright, both authored by Professor June M. Besek of Columbia Law School, explored how the morass of non-federal laws relating to pre-1972 sound recordings adversely affect preservation and public access to these rich cultural and historical resources.

This new study can be found online at the CLIR website: www.clir.org/pubs/abstract/pub146abst.html External and at the website of the National Recording Preservation Board: www.loc.gov/rr/record/nrpb/nrpb-clir.html.

Established by the National Recording Preservation Act of 2000 and reauthorized in 2008, the advisory National Recording Preservation Board (www.loc.gov/nrpb/) is appointed by Librarian of Congress James H. Billington 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.

Founded in 1800, the Library of Congress is the nation’s oldest federal cultural institution. It seeks to spark imagination and creativity and to further human understanding and wisdom by providing access to knowledge through its magnificent collections, programs and exhibitions. Many of the Library’s rich resources can be accessed through its website at www.loc.gov and via interactive exhibitions on a personalized website at myLOC.gov. The Library’s collection of sound recordings is preserved at the Library of Congress Packard Campus for Audio Visual Conservation, its state-of-the-art preservation facility in Culpeper, Va., which was made possible through the generosity of David Woodley Packard and the Packard Humanities Institute.

The Council on Library and Information Resources (www.clir.org External) is an independent, nonprofit organization dedicated to improving the management of information for research, teaching and learning. CLIR works to expand access to information, however recorded and preserved, as a public good.