Copyright reform suggestions, part 1

I am a little ashamed to admit that, at the American Library Association meeting last month, I learned about a very problematic provision of the U.S. copyright law that I had never heard of before. Representatives of the Association for Recorded Sound Collections and the Music Library Association spoke to several groups during the meetings in Philadelphia about the effects of section 301(c) on our ability to preserve historical sound recordings. ARSC and MLA are looking for support for their efforts to have 301(c) repealed or amended.

When our “new” Copyright Act was adopted in 1976, one of things it did was explicitly preempt state copyright protection. Before the 1976 Act, unpublished works were protected by a wide variety of different state laws (many with perpetual duration), and federal copyright protection usually only took effect when something was published. This created lots of confusing and difficult situations, so Congress took almost all works, published and unpublished, under federal protection, including the limited federal term of protection.

For some odd reason, Congress crafted an exception for sound recordings that were made prior to February 15, 1972. Those recordings, instead of being subject to the normal copyright rules, continue to be protected by state law until 2067. State protection, which was usually created by judges rather than legislators, often allowed perpetual protection for unpublished works, but were not designed to deal with other materials. Leaving these historical sound recordings subject to the patchwork of state laws has meant that, in fact if not by intent, these historical materials are subject to the most restrictive of state laws and for all practical purposes unusable until 2067. For the earliest recordings, which date from the 1890s, this amounts to a copyright term of over 170 years. Since even preservationists are reluctant to make copies under this bizarre and uncertain regime, many recordings are locked up by copyright for longer that the usable life of the medium in which they are recorded; they will be irretrievably lost before they are available in the public domain.

So here is an opportunity to reform our copyright act to mitigate one of its most pernicious effects – the unnecessary loss of our cultural heritage merely to time and decay – without harming anyone’s economic interests. In fact, compilations of some of these old recordings that are available for sale in other countries but technically infringing in the US could finally be sold here as well. The recording industry frequently lobbies Congress for full performance rights in sound recordings, and there was legislation to add such rights introduced into both houses late last year (the “Performance Rights Act”). Whether or not it is a good idea to subject radio stations to all the licensing fees such a law would require, this seems like a good time to demand a quid pro quo in the shape of repealing the foolish overprotection of historical sound recordings.