The Belfer Audio Archive at New York’s Syracuse University houses one of the preeminent collections of historical sound recordings in the U.S. But even as the Belfer prepares to celebrate its 50th anniversary with a conference, running from October 31 to November 2, it faces a set of thorny issues that threaten the country’s invaluable heritage of recorded sound and culture.
There is much talk these days about the services that public librarians offer, and about the challenges to providing those services in the digital age. But in this month’s column, we wanted to highlight the hurdles librarians face in the preservation arena.
In many ways, sound preservationists deal with the same critical nuances of intellectual property laws as archivists who work with books and other materials. They confront the same complex copyright concerns that bedevil the large-scale digitization of books and other special collections—for example, the orphan works.
Litigation has vexed projects like the HathiTrust on the print side, and those concerned with the preservation and dissemination of historical sound recordings know the courts are always near, as a key copyright suit filed in August by the ’60s singing group the Turtles against Sirius XM radio attests. And just as the Google Books project tested print-media rights holders’ boundaries, endeavors such as California-based Amoeba Music’s Vinyl Vaults are closely watched as potential bellwethers for sound-recording rights issues.
“We have a very visual society now, and we always are trying to enter the past through visual imagery,” says Jenny Doctor, who was hired as the Belfer’s director in 2012. “But I think the audio culture that has been saved in these sound recordings is just as, or even more, evocative as the visual,” she adds.
Doctor says the Belfer wants to make students and faculty aware of how they can use the archive across various disciplines. Rewarding as that effort is, the ultimate goal, she notes, is to stream the archive’s content to the widest possible audience—a complicated objective.
Currently, the collection must be used at the archive, with one exception: the Belfer Cylinders Digital Collection, which is available via streaming to those outside the university and features about 2,500 recordings made between 1890 and 1929 by Thomas Edison’s companies.
Such prudent risk assessments about the public domain are a necessity in the present legal environment. Uncertainty about rights holders and copyright status casts a shadow of liability that impedes archives like the Belfer from realizing their goals of preservation and wide access. As a result, audio preservation is at a watershed. Libraries, archives, museums, and historical societies have approximately 46 million recordings in their collections, and more than six million are “in need” or “in urgent need” of preservation, according to a report released by the Library of Congress in December 2012. The condition of another 20 million of the recordings is unknown.
But sound recordings are treated differently than any other intellectual property, including books. They were not covered by copyright law until Feb. 15, 1972, and as a result, a tangled skein of state laws governs pre-1972 recordings—a fact that has left ownership issues and terms of protection variable and unclear, and this situation has been further complicated by the Web.
“The patchwork of laws really doesn’t work in a situation where you have Internet distribution and everything is national,” says Tim Brooks, president of the Association for Recorded Sound Collections (ARSC) and the author of several books on early recording history.
The result for sound recordings is a world without public domain, since most states have no expiration for their antipiracy laws. It also leaves libraries and archives with frustrated users who cannot stream content.
“We have 22,000 cylinders, which is the largest collection outside the Library of Congress, nearly 500,000 78s, and about 65,000 LPs. We would like to be able to make them available for people to listen to and use in research and teaching,” Doctor says. “And it’s very awkward when I’m teaching and my students come to me and say, ‘I couldn’t hear this except by going to the special collection, but I saw it on YouTube.’ ”
New York’s antipiracy laws, which are particularly stringent due to the 2005 Capitol v. Naxos case, make it difficult for sound-recording archives in the state to succeed. “New York state law, thanks to Naxos, reverts to common law and nothing comes out of copyright,” Doctor says. “So all of our recordings going back to 1890s are protected under copyright. That means we cannot stream these recordings to the world.”
Further, many audio archivists believe that lacking Internet-access components for their collections puts them at a competitive disadvantage vis-à-vis print and other media archivists when applying for preservation grants. “In a way it’s undermining our value because if we can’t show that people are using our collection, then we can’t get the funding to do the very important preservation that we need to do,” Doctor says, adding, “We need to show usefulness but we can’t be useful [because of the law].”
This situation will not change until 2067, when state coverage sunsets and pre-1972 works enter the public domain—unless these works are brought under federal copyright law. However, pre-1972 recordings often reside on very friable media, and many will deteriorate long before then.
Peter Hirtle, a research fellow at the Berkman Center for Internet & Society at Harvard University and the senior policy advisor for Cornell University Library, says the achievements of the Belfer Audio Archive, are remarkable given the uncertain legal environment. “Given the fact that pre-1972 sound recordings are not protected by federal copyright law, there is no explicit legal protection for basic preservation reformatting,” he says.
“Preservation without access almost always eventually fails,” Hirtle says. “And yet again,” he notes, “the uncertain legal environment has sharply limited how and to whom the Belfer may make its preserved recordings available.”
The U.S. Copyright Office concluded in a 2011 report that “federalization” of pre-1972 recordings would best serve the interests of archivists in preserving old sound recordings and in “increasing the availability to the public” of such recordings.
“One of the things that archivists and librarians really need is bright lines,” says Brooks of ARSC. He notes that the 1923 public-domain cutoff for print material “doesn’t apply to [audio] records and that causes a great deal of grief,” Brooks says.
A single federal framework, rather than the legal indeterminacy of 50 different state laws, could allay some concerns about copyright infringement and orphan works. But the challenge is great.
“Because no copyright registration was allowed [for sound recordings] until 1972, it’s harder to find owners of works,” says Sam Brylawski, the chair of the National Recording Preservation Board and the retired head of the LC’s recorded-sound section. “Some of the most valuable material is unpublished material, such as radio broadcasts or interviews or lectures, and to make them available one has to track down the rights owners, and it can be very difficult,” he notes.
Brylawski, Hirtle, and Doctor all say that more efficient collaboration between archives and rights holders is needed, perhaps through a registry of sound recordings, as well as through projects like the LC’s National Jukebox.
Copyright holders are nervous about the shorter term of protection entailed by federalization, but Brylawski says that rights owners often have unrealistic expectations about the potential profits to be gained from historical recordings; he adds that the value of some recordings might actually increase if they could be rediscovered digitally.
But even federalization has pitfalls. For example, Section 108(c) of the Copyright Act prohibits preservation of a published recording before it has actually deteriorated, and the law allows only three copies of this already-deteriorating original. One mantra of archivists and librarians is “lots of copies keeps stuff safe (LOCKSS).” But federal law undermines that principle.
“There are several aspects to the copyright law that could be said to impede preservation either directly or indirectly,” Brylawski says. “Section 108 was obviously written with paper in mind. If a recording has already deteriorated, you can hear the deterioration. In that way the copyright law isn’t up to date.”
The vital work of sound preservationists offers much to think about as we begin to angle toward a major revision of copyright for the digital age, especially if, in the future, new works will be increasingly multimedia- and Web-based—not confined to the formats of old. As the digital age unfolds, reconciling our current patchwork of laws and legal precedents to enable preservation—and access—looms as a cultural imperative.