LC Issues Report on Use of Unpublished Sound Recordings in Libraries
George H. Pike
Posted On April 6, 2009
The Library of Congress has released a report outlining the legal status of early sound recordings held by libraries and archives. The 85-page report outlines the overlapping state and federal laws governing sound recordings made prior to 1972 and the steps that libraries and archives should consider in attempting to preserve and disseminate these recordings. The legal issues are so complex that librarians would be judicious to give attention to this helpful report.
Many libraries, archives, and museums have in their possession one-of-a-kind, unpublished sound recordings made throughout the 20th century. These recordings often include audiotapes of radio broadcasts, oral history recordings made by scholars, or recordings of live and local events. These recordings represent a significant part of history that, just like other media, need to be preserved.
Often times, however, these recordings have legal protections not just under federal copyright law but also under state "common law" copyright, unfair competition, and even privacy laws. A library seeking to both preserve and make these resources available-often using digital preservation techniques that can be streamed or downloaded over the internet-must navigate a minefield of different laws covering different types of recordings made at different times under different circumstances.
The National Recording Preservation Board of the Library of Congress, along with the nonprofit Council on Library and Information Resources commissioned June M. Besek, executive director of the Kernochan Center for Law, Media, and the Arts at Columbia Law School, to research and report on these challenges. Her report, "Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives," issued on March 30, 2009, collects and summarizes the legal issues surrounding these recordings and offers examples and suggestions for libraries and archives that have these recordings in their collections.
Why is 1972 a magic date? Unpublished sound recordings that were made prior to 1972 were not protected by the federal copyright laws then in place. (Recordings made after 1972 are fully covered by the Copyright Act.) "Unpublished," for purposes of these materials, refers to recordings that were not distributed to the public, even though they may have been broadcast or performed. An example would be a one-time audio tape or broadcast of a performance as distinct from a record album made of the performance and sold to the public.
But simply saying that these recordings are not protected by federal copyright law does not end the inquiry. According to the report, there may still be copyright implications in the underlying content of the recording. In an example from the report, a "bootleg" tape of a 1971 rock concert would not be copyrighted. However, the actual songs-music and lyrics-may have been copyrighted and, if so, would remain under copyright protection. The same might apply to the script of a radio show broadcast or a poem that was recorded at a poetry reading. The report outlines a number of options for determining if copyright applies and, if so, identifying the copyright holder and obtaining a license for use of the copyrighted material.
Even if there is no federal copyright protection for the recording or its underlying content, the report indicates that unpublished sound recordings may be subject to the protections of state laws. Most states recognized a "common law" copyright in sound recordings. State laws also protected the authors of those recordings though state unfair competition, misappropriation, and privacy laws.
"Common law" copyright was created from a history of court decisions that recognized that authors had a right to control when, where, and how their creative works were published. Rights under common law copyrights are similar to rights under federal copyright, but they are often complicated by trying to identify who owns the rights in an unpublished sound recording. Is it the person or the group being recorded? Is it the person doing the recording? Is it the owner of the tape or physical recording? Is/was there any contract or agreement covering the recordings, and if so, does it still exist? The report provides a very helpful discussion of these issues.
The report also discusses state unfair competition and misappropriation laws that have also applied to both published and unpublished recordings. Both of these areas of law apply when someone attempts to promote a product-such as a recording-in a way that doesn't provide recognition, credit, or payment to the product's owner or creator. In the case of sound recordings, the law has been applied to cases in which unauthorized recordings were offered in competition with authorized recordings.
A very effective section of the report uses examples of unpublished sound recordings held by libraries and archives and how these various laws might apply to them. In the case of the "bootleg" rock concert, for example, the report outlines possible copyright issues over the underlying music and lyrics, state misappropriation concerns, and a narrow risk of violation of criminal anti-piracy laws. Another example involved an archival recording of a radio news broadcast. In that case, while there may be rights in underlying works, they were-to use the report's phrase- "very attenuated."
The report acknowledged that the nonprofit and noncommercial nature of a library's use of these recordings could often be a defense to a claim of unfair competition or misappropriation and that federal copyright principles-including fair use-are often applied to common law copyright cases. It discusses the "valuable role that libraries play in society" and the fact that there have been very few cases of libraries being sued for copyright infringement. However, the absence of past cases does not mean that there is no risk of liability.
There is a very effective series of questions that a library can explore in determining if there are risks associated with streaming digital copies of sound recordings. Not every library's question may be resolvable, and some risk may always remain. The report concludes by acknowledging that the law is "inconsistent and uncertain" and that often each recording in the possession of a library or archive will need to be evaluated individually to determine the best course of action.
The report, along with an earlier report covering the use of commercial sound recordings (record albums, etc.), is available from the Council on Library and Information Resources at www.clir.org/pubs/abstract/pub144abst.html.