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.  Washington, D.C.: Council on Library and Information Resources, 2005.  54pp (softcover).   ISBN 1-932326-23-5.  $20.00.  Also available free as a downloadable pdf file from www.clir.org.

 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 Columbia Law School.  While no doubt delightful reading for lawyers, stylistically it is pretty dry and dense going for the neophyte.  Nevertheless it does contain valuable new information on state laws affecting pre-1972 recordings, and for that reason alone is worth a look.

As most readers of this column probably know, pre-1972 recordings are treated quite differently from later recordings under U.S. law.  While later recordings are covered by federal law, those made before February 15, 1972 (which ARSC members are most interested in) remain under state law, at least until 2067.  (There are actually two copyrights for a typical recording: the underlying musical or other composition is covered as well, but that is another story.)  So the largely unstudied field of state law as it relates to recordings is of great interest to those who want to preserve or disseminate older recordings.

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: New York, California, Illinois, Michigan and Virginia. Why these particular states were chosen is not stated, but they seem reasonable enough.  Within each state the study looks at criminal and civil laws.  One theme that emerges is that criminal laws almost all deal with record piracy “with the intent to use or sell for profit,” and would most likely not be invoked in cases involving non-profit uses such as those of a library.  Looks like nobody’s going to go to jail for non-profit uses.

Civil law, under which you can get sued, is another matter.  In all states except California recordings fall under “common law,” derived from prior judicial rulings; in other words, “judge-made law” (talk about legislating from the bench!).  Because this body of “law” has grown up over time, and depends on the cases that arose, it is extremely vague and inconsistent from state to state.  Besek does her best to sort out the commonalities and implications of this smoldering body of state common law, concluding that ownership of recordings is generally eternal (until federal law preempts in 2067), and most civil cases have also dealt with for-profit situations.  Case law on non-profit uses, such as preservation or dissemination by a library, is yet to be written.  She is, however, pessimistic that the courts will carve out many exceptions there.

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 New York State, and Besek is clearly concerned that other local courts will follow suit.  At the back of the report is an interesting appendix listing specific criminal and civil findings in each of the five states studied.

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 U.S.  It teases us with the first partial look at the murky area of state laws and pre-1972 recordings.  A more comprehensive study of the laws of all fifty states is underway at the CLIR.

Notes