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January 29, 2006 Copyright Issues Relevant
to Digital Preservation and Dissemination of Pre-1972 Commercial Sound
Recordings by Libraries and Archives. By June M. Besek.
Reviewed
by Tim Brooks Many people, if they noticed
the passage of the National Recording Preservation Act of 2000 at all, probably
think it simply set up an annual list of “great recordings,” much like the
National Film Registry. A more
significant provision of the law was that it directed the Library of Congress
to study the effect of copyright laws on the preservation and accessibility of
recordings, and report back on any legislative changes that might be desirable. The
fruits of that directive are just now becoming available. This booklet is the second in a series of
studies sponsored by the Council on Library and Information Resources, a
Washington-based library association, for the Library of Congress and its
National Recording Preservation Board.
(The first study, by this author, dealt with the availability of
reissues of historic recordings.[1]) The new study
is by June Besek, a professor at As
most readers of this column probably know, pre-1972 recordings are treated
quite differently from later recordings under Although
the study is ostensibly about pre-1972 recordings, the first third consists of
a detailed description of federal copyright law, which of course applies to
post-1972 recordings. I say “a
description” because the author offers little analysis, providing instead a
careful recounting of various provisions of the law, including works covered,
terms, rights conveyed, fair use, and special library privileges (which are
quite limited). She explains that this
extensive treatment of post-1972 law is necessary because some pre-1972 foreign
recordings do fall under federal jurisdiction (due to treaties), the underlying
music is governed by federal law, and state courts often look to federal law
for guidance in deciding their own copyright cases. It’s well-trod ground, but at least it is
more complete coverage than is found in many of the popular books I’ve
previously reviewed here, and it is not as difficult to read as the statutes
themselves.[2] The
good stuff begins on page 16, when the author first tackles state laws. She looks at laws and court cases in five
sample states: Civil
law, under which you can get sued, is another matter. In all states except One
recent and notorious case, Capitol v. Naxos, is described in detail,
again with little analysis. In this case
a business-friendly court decreed a sweeping expansion of recording copyright
privileges, at least in Another
section of the report deals with digital preservation and dissemination, again
based on federal law (post-1972 recordings).
An interesting section on “general equitable defenses” addresses the
issue of abandonment, which some think is a possible defense in cases involving
the dissemination of long out-of-print recordings. The legal principles of abandonment,
estoppel, waiver and laches are described, but the conclusion is that none of
them are likely to be successful except in very special cases. Besek
seems reluctant to come to clear conclusions or to offer many concrete
recommendations to archives undertaking preservation or dissemination work
(other than “the law is vague so be careful”).
However it is apparent from her findings that state and common law,
while not as clear-cut as federal law, is sweeping, onerous and heavily favors
rights holders. At the end she tactfully suggests that “legislative change is
critical to enable responsible and efficient digital preservation and
dissemination,” and singles out section 301( c) of the federal copyright act, the
provision that put pre-1972 recordings under state law, as one specifically in
need of alteration. Overall,
this study is an important addition to the body of evidence supporting
copyright reform in the Notes |
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