by : Music Law, Nov '10

Copyright Pressures Compromise the Preservation of Recorded Sound

Copyright Pressures Compromise the Preservation of Recorded Sound

With the advent of sound recording at the end of the nineteenth century, many different kinds of sounds – from musical performances and important government speeches to animal sounds and baby laughs – were captured and registered for future listening. In order to commercialize those recordings, early entrepreneurs established an industry around these recordings that grew vertiginously, becoming a fundamental part of our contemporary cultural history.

For years, it had been a solid, profitable structure. Lately, however, it is undergoing drastic transformations. The transition to a digital age is causing a huge impact on the way sound recordings – especially music – are commercialized, consumed and distributed. The creation and consumption of recordings are now occurring at a much faster rate than the efforts involved in preserving this cultural heritage for posterity.

In that regard, the US Congress assigned the responsibility to “maintain and preserve sound recordings that are culturally, historically, or aesthetically significant” to the National Recording Preservation Board of the Library of Congress (NRPB). This was done through the National Recording Preservation Act of 2000 (Public Law 106-474), that also required them to “…undertake studies and investigations of sound recording preservation activities as needed, including the efficacy of new technologies, and recommend solutions to improve these practices.” As a result, NRPB published ”The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age.” – a comprehensive study that delineates the web of issues that endanger the sound recording history.

There are several organizations, both in private and public spheres, which are committed to preserve the audio legacy for future generations. More and more they are benefiting from the digital technology to store files and manage their collections. Digital storage helps overcome problems such as physical space – since long halls with countless shelves are being substituted for hard-drives – and provides enhanced search engines. On the other hand, the protection and maintenance of digital audio recordings is not at all simple. Problems like server crashes and incompatibility of file formats due to the successive releases of new software are an everyday struggle. There are many more positive and negative issues to consider, but it is clear that digital storing must be the preferred format to achieve the objectives of recorded sound preservation. Hence, the archives require the development of totally new preservation techniques.

To overcome this transitional phase, NRPB envisions that a collective effort must be made. Different archives and collectors should work together to avoid unnecessary costs caused by redundant efforts of reformatting, cataloging, and archiving. That would help develop a new system in which both old and new works are available and preserved for posterity in a single digital format. According to the report, this would only be possible with a change in copyright law, allowing the creation of a file-sharing network of credentialed institutions. They would acquire licenses to share digital files of preserved commercial recordings for archival purposes. The whole idea of preserving audio content is very positive and important to our cultural heritage; however, it is crucial that any changes made in the existing system do not harm the copyright owners in any way.

The study further emphasizes that digital development does not ensure preservation for present and future creations. As time progresses, newborn digital recordings are in similar danger of being lost, like old 78-rpm recordings. The dissemination of sound recordings is happening exclusively in digital format, via downloading and streaming. Inexpensive tools for production and recording, matched with efficient marketing tools, allow new artists to offer their productions directly to their costumers. Therefore, the institutions responsible for sound recording preservation will have to face challenges like the diversity of file formats, possible virus-contaminated files, digital rights management and legal issues related to the capture and maintenance of these files.

Another arduous task will be the discovery and selection of the recordings to be preserved, due to the immense quantity of potentially important material, extensively spread on the Internet. Meanwhile, much information is being lost. For instance, a podcast that could have great content for scholars may not be available the following month. It could be due to the closure of the web site, or an inability or refusal to pay royalties. As a possible solution, the Library of Congress considered capturing the entire audio material produced online. Although the modern industry has all of the technology required to complete such a task, under the current law and license agreements, it is illegal to copy this born-digital content to public access servers and to provide access to it in an institutional setting. Dark archives – where data has restricted access until the content falls into public domain – are suggested instead, but funding for an archive that has such limited use may be very difficult.

It could be said, as a student did at an NRPB public hearing in 2006, that “the preservation of music is meaningless if this music is not accessible”. Indeed, from a business perspective, access is fundamental to the viability of investment in the area. The costs of preservation are tied to the possibility of exploring and exploiting the audio material. An increase in funding for sound recording preservation will only occur with enhanced models of licensing agreements that grant access to a vast variety of works, including unpublished and out-of-print recordings. Sony Music Entertainment took one step in this direction. They licensed their repertoire of recordings from the acoustical era (before the advent of microphones and electrical recording) to the Library of Congress Jukebox, a tool that soon will be streaming approximately 10,000 recordings to the public.
NRPB gave special attention for old materials in their study. They observed that the works made before 1972 are protected by a confusing set of different state, civil, criminal and common laws. It was only that date that federal laws started to look after the copyright of sound recordings. The actual law keeps these works under state regulation until 2067. According to NRPB’s analysis, this provision should be repealed and all recordings produced should be placed under a single, understandable and more coherent national law. As for the material that no owner could be located – orphan works – the proposal is to legalize their usage by means of preservation. The report also suggests a compulsory license for abandoned or out-of-print recordings, so third parties can reissue those works with an appropriate compensation to the rights owners.

It is clear that the interests of copyright owners and of those responsible for preserving the nation’s recorded sound heritage are in conflict. The recorded sound preservation is critically affected by restrictions and limitations fixed in the US copyright law. It is important to find a perfect balance so that copyright owners can be compensated and organizations can achieve their fair goals of preservation. The complete study from the Library of Congress is available for purchase and as a free download at www.clir.org.

By Luiz Augusto Buff

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