The Library of Congress has released a sobering new report on the state of digital audio preservation in the United States. The Library's National Recording Preservation Board concludes that most of the nation's audio libraries are ill-equipped to handle the complex array of streams and digital formats by which music and other recorded sounds are released today.

"It is relatively easy to recognize the importance of recorded sound from decades ago," the survey notes. "What is not so evident is that older recordings actually have better prospects to survive another 150 years than recordings made last week using digital technologies."

But even those older artifacts face the prospect of being lost to posterity because of our nation's copyright laws. So concludes The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age (PDF).

"Were copyright law followed to the letter, little audio preservation would be undertaken," the report warns. "Were the law strictly enforced, it would brand virtually all audio preservation as illegal."

Back to the future

The main problem is that for decades the intellectual property rights of most sound recordings were covered not by federal law, but by a complicated matrix of state statutes and judicial precedents. When Congress finally did extend federal authority over these works via its late twentieth century Copyright Acts, it put the annulment date for the earlier rules at 2067.

"Thus, a published US sound recording created in 1890 will not enter the public domain until 177 years after its creation," the study observes, "constituting a term of rights protection 82 years longer than that of all other forms of audiovisual works made for hire."

This, of course, creates huge challenges for audio librarians and archivists, which the report outlines in painful detail.

Great expectations

Prior to the digital revolution, the public assumed that the only way to sample a library's audio fare was to actually visit the institution and listen to recordings via record players, cassette machines, and headphones. Today, however, citizens expect to sample audio via some kind of Web site.

It is "virtually impossible," the report insists, "to attract grants and donors to support preservation of collections that will not be accessible once preservation occurs."

This puts libraries in a bind. "Because institutions frequently do not hold rights to the sound recordings in their collections and cannot make the material accessible," The State of Recorded Sound contends, "the likelihood increases that they will find it even more difficult to attract the resources needed to preserve important collections in the first place."

Some archivists persevere in posting audio materials online, but they're uncertain as to whether their actions are covered by fair use (the question of whether fair use protections for audio/video were available in New York State, for example, was unclear until a court ruled in 2008 that a documentary film could use 15 seconds of John Lennon's song Imagine).

Other institutions fear to move ahead and release materials without having researchers armed with copyright expertise, which is often expensive or difficult to find. And so:

A scholar researching the history of vaudeville might have a strong interest in hearing recordings made by the first vaudevillians—recordings that came before the recording horn. These performers may have been headliners in their time, but today their names are virtually unknown. While scholarly interest in these recordings is high, their economic value to the property holder is negligible. However, legal restrictions governing access to a cylinder produced in 1909 are the same as those governing a compact disc made in 2009, even though it is highly unlikely that the 1909 recording has any revenue potential for the rights holder.

Meanwhile, the ease with which digital audio files can be shared has created a generation of rights holders who are reluctant to release their works to the public, even though the chances of their making much more money from them are small. Successive generations of record label owners are instead just letting their releases go out of print.

One study found that, out of thousands of recordings produced between 1890 and 1964, rights holders have only made available 14 percent of the historic recordings that they control.

Copies

Even more frustratingly, while the Copyright Act allows libraries and archives to make copies of their possessions, these grants were not extended to pre-1972 sound recordings created in the United States. Even in the case of post-1972 recordings, libraries stand on shaky ground when it comes to preservation copying.

For example, Section 108 of the Copyright Act allows libraries to make three copies of a published, protected work "for replacement purposes." The law designates these as a "master copy," a "service copy," and a "submaster copy" used to generate service copies.

But the law needs a serious technical update. As the new Library of Congress study observes, "Application of digital preservation technologies can require producing multiple interim/buffer copies generated by the various computers, audio workstations, and servers involved in the digital preservation workflow. If the term 'copies' is narrowly defined, adherence to best practices for even routine digital preservation is both illegal and impossible."

Solutions

The National Recording Preservation Board gives five recommendations to fix these problems. Not surprisingly, fix number one is for Congress to repeal Section 301(c) of the Copyright Act, which establishes 2067 as the federal copyright date.

Second, bring copyright protection for audio into sync with Europe—a term of 50 to 75 years at the maximum.

Third, decriminalize the use of recordings for which no rights holder can be found, otherwise known as "orphan works."

Fourth, make it possible for third parties to reissue "abandoned recordings"—audio releases that have gone out of print for long periods of time. In those instances, rights holders should receive reasonable compensation.

Finally, allow libraries to more easily make audio copies and share files.

"Copyright reform is not the sole area in which congressional action is needed," the NRPB study warns, "but it remains the key solution to preserving America’s recorded sound history, protecting ownership rights, and providing public access."