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only in America: The Unique Status of Sound Recordings under US Copyright Law and How It Threatens our Audio Heritage

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only in America: The Unique Status of Sound Recordings under US Copyright Law and How It Threatens our Audio Heritage
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   American Music Suer 2009© 2009 by the Bard  Trustees  the University  Illinis Ti Brs is chairan  the Cpyright and Fair Use Cittee  the As-sciatin r Recrded Sund Cllectins, as well as a past president  thatrganizatin. He has written widely n the early histry  the recrding in-dustry, including the award-winning b Lost Sounds: Blacks and the Birth o theRecording Industry, 1890–1919 (University  Illinis Press, 2004) and ntes rthe Gray-winning CD  the sae nae. TIm BRookS only in Aerica: The UniqueStatus  Sund Recrdings underU.S. Cpyright Law and Hw ItThreatens our Audi Heritage Sund recrdings are an irreplaceable part  the histrical recrd. Fr thepast 120 years usicians, actrs, public gures, and ebers  anyethnic grups and subcultures have citted their wrds, thughts,and sunds t recrded edia, creating, quite literally, a sundtrac the past century. Thrugh recrdings, the past speas t us directly,withut the lter  secnd-hand interpretatin r inerence, whetherit is a arch as Susa intended it t be perred, jazz as it was rstwidely heard, r a speech as actually delivered by Thedre Rseveltr Ber T. Washingtn.Natins arund the wrld recgnize the value  histrical sund re-crdings thrugh laws that encurage their preservatin and accessibil-ity. Natinal archives preserve and catalg the, and bth public andprivate entities disseinate the (nwadays via the Internet) t schlarsand the public at large as they enter the public dain. Except in theUnited States. In this cuntry the laws have bece s sewed twardthe interests  present-day “rights hlders” that, alst withut nticer even intent, st  the recrded past has been lced up r genera-tins t ce—perhaps rever. Perissin is required t hear it.mst peple are nt aware that in the United States sund recrdingsare treated dierently, and re harshly, than any ther type  intellectualprperty. Bs, articles, published usic, vies, phtgraphs, and ther  creative wrs are generally prtected r ninety-ve years r publi-catin, r r the lie  the authr plus seventy years—a very lng tie(se say t lng), but at least xed and predictable. In additin, due ta quir in the law anything published prir t 1923 is already in the publicdain. 1 Yur high schl band can play “The Stars and Stripes Frever”as uch as it wants, and l schlars can screen The Great Train Robbery  r Birth o a Nation withut seeing anyne’s perissin. mrever, eveni a wr was created ater 1923 and is still under cpyright, the law pr-vides exceptins allwing archives t cpy it r preservatin purpsesand users t qute excerpts r it under “air use” prvisins.Nt s with recrdings ade prir t 1972. The reasn is an bscureprvisin  the 1976 Cpyright Act—Sectin 301(c)—that specied thatthe law cvered nly recrdings ade ater February 15, 1972; all thseade prir t that date reained under state law. 2 Previusly sundrecrdings had nt been cvered by ederal law and the idea was tprvide a transitinal perid between the previus state cverage andthe new regie  ederal cverage. This dd transitinal prvisin wassuppsed t sunset in 2047, althugh that date has since been ved t2067 and se thin it will never be allwed t expire.Fr a lng tie n ne had systeatically studied the sund-recrd-ing laws  the ty states t deterine exactly what this biurcatedsyste—unique in the wrld—eant in practice. Unrtunately, aterthirty years  experience we have the answer. With the rise  the In-ternet in the 1990s recrding rights hlders (stly large crpratins) becae very aggressive in shutting dwn what they cnsider t be un-authrized distributin  their prducts. They cused stly n thedwnlading  dern recrdings (30,000 Aericans have been suedr threatened with lawsuits r such activities s ar, under penaltiesauthrized by Cngress in 1998). Hwever pre-1972 histrical recrd-ings have nt escaped ntice.In 2005 the landar case  Capitol v. Naxos pitted a distributr 1930s reign classical recrdings (Naxs) against the putative hlder the U.S. rights t thse recrdings. The judges  the New Yr StateCurt  Appeals ruled against Naxs, but they used the pprtunityt g uch urther than that. They declared that since New Yr Statehad nt passed explicit statutes dealing with recrding cpyright, itwas in act gverned by “cn law” (i.e., law declared by judgesin their rulings). In their pinin sund recrding cpyright in NewYr derived r the laws  seventeenth-century English ings. Itwas abslute and perpetual. The rights hlders have all rights, rever,and the public has nne. 3 Althugh in the past this dracnian ruling ight have been liited tNew Yr State, in the Internet age the law  ne state can eectively bece the rule r all. An Internet site cannt cntrl where its prd- 126 Brs  ucts will be dwnladed, and ne cpy dwnladed in New Yr Statewuld be actinable. other states wuld prbably llw New Yr’slead r physical CD sales as well. Naxs discntinued its distributin histrical recrdings thrughut the United States.Three recent studies have reinrced this dar view  state sund-recrding cpyright. 4 They und that, in nearly all states studied, recrd-ings are cvered by cn law, eaning that it is perpetual, with npublic dain. mrever states have enacted ew i any exceptins rsuch niceties as preservatin r air use  recrdings. much  the pres-ervatin wr being carried ut by archives n lder cpyrighted recrd-ings is therere technically illegal. S are acadeic presentatins thatincrprate excerpts r cpyrighted recrdings, n atter hw ldthey ay be, unless the schlars have btained explicit perissin.The practical eect  this ay see rather inr. Ater all, n archivethat I nw  has been raided, r acadeic cnerence shut dwn, byrights hlders. Hwever, the availability  histrical recrdings has beenvery uch cnstrained, nt s uch by lawsuits as by the chilling eect such sweeping laws. The Library  Cngress, r exaple, has ewhistrical sund recrdings n its therwise extensive and innvative“Aerican mery” Web site, which any cnsider a del r publicaccess t ur histry in the Internet age. 5 There are n ajr, legal Inter-net archives  histrical recrdings in the United States siilar t theLibrary and Archive Canada’s “Virtual Graphne,” r the EurpeanArchive. 6 mst intellectual prperty cers advise their institutins tcareully avid any -preises availability  cpyrighted recrdings,n atter what their age.Even schlars willing t travel persnally t archives’ preises aynd cpyright radblcs thrwn in their path. While researching a b n the earliest cercial recrdings by Arican Aericans I l-cated a unique exaple r the 1890s in the cllectin  the Library Cngress. When I requested a cassette cpy r study, I was handeda slip  paper cntaining the address  the Bertelsann music GrupLegal Departent and tld that n cpy culd be ade r any purpsewithut explicit written perissin. BmG had never actually claiedwnership  this ancient recrding, and as a histrian I new that basedn crprate lineage any such clai wuld be dubius. Hwever, alibrarian thught that they ight and that was enugh.In anther instance a distant archive als reused t ae a taped cpy a 100–year-ld recrding r study. Hwever, they helpully bserved,the recrding culd be listened t in ne  the library’s listening bths.S a riendly lcal schlar sneaed a sall, hand-held recrder int the bth and held it up t the earpiece in rder t ae at least a crudecpy that I culd study several hundred iles away.Such barriers t schlarship wuld be ludicrus in any ther cun- Sund Recrdings and Cpyright 127  try. They clearly benet n ne. The recrd cpanies have nthing tgain since such recrdings have n ecnic value and have been ut print r any decades—nr are they liely t ever be reissued. (Therecrd cpanies have lng since destryed the asters.) Archives can-nt ulll their issin  preserving culture and enabling schlarship.And  curse schlars and the public they serve are rustrated.  How Long Is Long Enough? All cuntries except the United States recgnize that recrdings are de-rivative wrs and accrd the shrter ters  prtectin than r theusic r text they ebdy. This is based n the lesser length  theirecnic viability. While a sng ay be ecnically viable r rethan hal a century (e.g., Gershwin r Berlin), specic recrdings  thsesngs seld are. A detailed ecnic analysis in Eurpe cncluded that,n average, 67 percent  the revenue that wuld ever be realized r arecrding was realized in the rst seven years ater issue, and 97 percentin the rst thirty years. Ater ty years the reaining revenue auntedt nly 1 r 2 percent  the ttal, and that was sewed t a ew, alreadywealthy artists. 7 S why lc up every recrding r lnger than that? InEurpe the ter  prtectin r recrdings was set at ty years. Secuntries have lnger ters, r exaple, sixty r seventy-ve years. 8  Nne are perpetual—r ninety-ve years, as the U.S. ter is suppsedt eventually bece nce state cverage sunsets in 2067.one arguent r the United States’ lng recrding ters was thatthey wuld encurage rights hlders t reissue their early aterial, butater thirty years  experience we nw this is nt the case. In 2005 theLibrary  Cngress and the Natinal Recrding Preservatin Bard asede t cnduct a study n the availability  histrical recrdings rcpyright hlders and thers. The study was based n a saple  1,500recrdings listed in widely used discgraphies, and thus was nt a study all recrdings, but rather  thse that had been identied as in sesense iprtant by schlars. It cvered the perid 1890 t 1964, and wasthe rst rigrus, quantitative study  the subject. 9 The ndings were draatic. The vast ajrity (84%)  these histri-cal artiacts had a current wner wh cntrlled the recrding tday; inlight  events since the study was cnducted I believe that the gureis actually higher than that. The wners  these early recrdings werepriarily the ajr recrding cpanies, which have absrbed anylder, saller labels. In act the newly erged SnyBmG (successr tthe Victr and Clubia labels ang thers) by itsel cntrls st Aerica’s recrded histry ade prir t Wrld War II.only 14 percent  these histrical recrdings had been ade available by the cpyright hlders, either directly r thrugh licensing. mrever 128 Brs  the 14 percent was highly sewed tward re recent perids (see g.1). The urther bac ne went, the less was available. While abut ne-third  listed recrdings r the early rc ’n’ rll era (1955–64) wereavailable, the percent  available recrdings ade prir t 1920 wasnegligible. This des nt ean there were n rights hlder reissues rearlier perids, but very ew.The stry was siilar in each ajr genre  usic. The least reissuedgenre was ethnic usic, the usic  inrities and reign-languageiigrant grups. Tens  thusands  such recrdings were ade inthe early twentieth century, preserving the usic and culture  anyiigrant grups, but nly 1 percent  that was available tday. Sur-prisingly blues, gspel, and jazz were als prly served, at abut 10percent available (see table 1). Figure 1. Reissue availability, 1890–1960Table 1. Rights hlder reissues by genre  Jazz/ragtie 9%Blues/gspel 10Cuntry 20Ethnic 1Pp/rc/R&B 12Classical 17other (spen wrd, shw usic) 28 Sund Recrdings and Cpyright 129(percent available r rights hlders)
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