You think only “pirates” and “freeloaders” rail against current copyright laws? Well, think again – even the Library of Congress seemingly has had enough. The topic is recorded sound preservation, and in a 181-page in-depth study, the Library of Congress concludes that apart from technical difficulties, US copyright law makes it virtually impossible for anyone to perform any form of audio preservation. The painted picture is grim – very grim.

The very detailed and in-depth report has been ten years in the making, and was commissioned in the National Recording Preservation Act of 2000. The goal of the study was to inform Congress of the state of audio preservation, the difficulties encountered, what kind of standard procedures are needed for preservation, and so on. The conclusions in the report are grim, at best.

Problems

Since us geeks can understand that 150 years of recording technology would pose problems for modern archivists (imagine how many different technologies have come and gone in those 150 years), let’s skip straight ahead to the destructive effects of copyright law on archiving audio recordings.

“Were copyright law followed to the letter, little audio preservation would be undertaken. Were the law strictly enforced, it would brand virtually all audio preservation as illegal,” the study concludes, “Copyright laws related to preservation are neither strictly followed nor strictly enforced. Consequently, some audio preservation is conducted.”

While libraries supposedly have some leeway in preserving audio recordings, they find it “virtually impossible to reconcile their responsibility for preserving and making accessible culturally important sound recordings with their obligation to adhere to copyright laws”. The problem is that the current provisions in law for audio preservation are “restrictive and anachronistic” in our current digitial age.

There are more problems. While the recording industry undertakes some preservation, they will only preserve those recordings from which they think they might profit in the future (what a surprise). For instance, consider a researcher working on vaudeville who may be interested in vaudevillian recordings on cylinders.

“These performers may have been headliners in their time, but today their names are virtually unknown,” the study details, “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.”

The report also highlights the problems posed by the rather complicated history of US copyright law. “All U.S. recordings, both commercially released and unpublished, created before February 15, 1972, are protected by a complex network of disparate state civil, criminal, and common laws,” the study explains. The consequence is that all sounds recordings made before 1972 will have their copyright expire in 2067 – 95 years after the placement of these recordings under federal protection in 1972. This means that the oldest sound recordings in the US dating from 1890, will only enter the public domain after 177 years.

It goes much deeper than that, though. Sound recording preservation institutions are having problems finding the necessary funding for their expensive work because they are not allowed to grant access to the material they’re trying to preserve. Access has become such an important demand that organisations unable to provide such access will simply not even bother to preserve the audio in the first place. In addition, private collectors are unwilling to hand over their collections to institutions out of fear that their collections will not be made available to the public. As one participant in the study said, “The preservation of music is meaningless if this music is

not accessible.”

Another important – and very well-worded – complaint in the study is that copyright law is seen as so restrictive by the public, that people simply dismiss it outright. “In the perception of the public, copyright law has a reputation for being overly restrictive,” the study notes, “This perception fosters a dismissive attitude toward the law in communities that can hardly be characterized as rogue elements of society. An individual representing one institution has noted that, unless or until instructed to cease and desist certain practices, his organization was compelled to ‘fly under the radar’ to support its mission.”

Solutions

The study doesn’t just identify problems – it proposes solutions as well; five of them, to be exact:

Repeal Section 301(c) of the Copyright Act – this is the section that enacts the 2067 barrier as expained above.

Decriminalise the use and copying of orphaned works – which are works for which no rightsholders can be determined.

Bring US copyright terms in line with European ones – a maximum of 50-75 years. The study discovered that an additional 22% of US historical recordings are available in Europe, but not in the US, due to shorter copyright terms in Europe.

Third parties should be able to re-issue abandoned works without permission from rightsholders – as long as those rightsholders are properly compensated.

Libraries should be allowed to more easily copy and share material within the library and between other libraries, and restrictions on quality of the copies should be removed.

Locked up

This detailed study confirms something that I – and many others with me – have been saying for a long time now: modern-day copyright is no longer performing its intended function, i.e., to promote the sciences and arts. Instead, it has become a license to print money, existing almost exclusively to secure the exorbitant income of big content.

The British Lord Camden already predicted this outcome back in the 18th century. “All our learning will be locked up in the hands of the Tonsons and the Lintots of the age. […] Knowledge and science are not things to be bound in such cobweb chains.” This horror scenario, envisioned almost 300 years ago, has now become a reality. Organisations like the RIAA and MPAA, as well as its promoters, have no interest in promoting the arts and sciences – our learning has been locked up by the Tonsons and Lintots of our age.

The calls for massive copyright reform are growing ever stronger, but the US will have to wait until the Obama administration leaves office before any serious changes can be made. The current US administration is utterly and wholly, for the full 100%, siding with big content with little to no regard for promoting the arts and sciences.

In doing so, the Obama administration is contributing to the destruction of immense bodies of knowledge and art. As far as I’m concerned, this shows a complete and utter disdain for art, culture, and history.