Copyright Law Compromises The Preservation of Recorded Sound

Originally published in the nov-10 issue of The Music Business Journal – Berklee College of Music 

With the advent of sound recording at the end of the nineteenth century, many different kinds of sounds – from musical performances and important government speeches to animal sounds and baby laughs – were captured and registered for future listening. In order to commercialize those recordings, early entrepreneurs established an industry around these recordings that grew vertiginously, becoming a fundamental part of our contemporary cultural history. For years, it had been a solid, profitable structure. Lately, however, it is undergoing drastic transformations. The transition to a digital age is causing a huge impact on the way sound recordings – especially music – are commercialized, consumed and distributed. The creation and consumption of recordings are now occurring at a much faster rate than the efforts involved in preserving this cultural heritage for posterity. 

In that regard, the US Congress assigned the responsibility to “maintain and preserve sound recordings that are culturally, historically, or aesthetically significant” to the National Recording Preservation Board of the Library of Congress (NRPB). This was done through the National Recording Preservation Act of 2000 (Public Law 106-474), that also required them to “… undertake studies and investigations of sound recording preservation activities as needed, including the efficacy of new technologies, and recommend solutions to improve these practices.” As a result, NRPB published ”The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age.” – a comprehensive study that delineates the web of issues that endanger the sound recording history. 

There are several organizations, both in private and public spheres, which are committed to preserve the audio legacy for future generations. More and more they are benefitting from the digital technology to store files and manage their collections. Digital storage helps overcome problems such as physical space – since long halls with countless shelves are being substituted for hard-drives – and provides enhanced search engines. On the other hand, the protection and maintenance of digital audio recordings is not at all simple. Problems like server crashes and incompatibility of file for- mats due to the successive releases of new software are an everyday struggle. There are many more positive and negative issues to consider, but it is clear that digital storing must be the preferred format to achieve the objectives of recorded sound preservation. Hence, the archives require the development of totally new preservation techniques. 

To overcome this transitional phase, NRPB envisions that a collective effort must be made. Different archives and collectors should work together to avoid un- necessary costs caused by redundant efforts of reformatting, cataloguing, and archiving. That would help develop a new system in which both old and new works are available and preserved for posterity in a single digital format. According to the report, this would only be possible with a change in copyright law, allowing the creation of a file-sharing network of credentialed institutions. They would acquire licenses to share digital files of preserved commercial recordings for archival purposes. The whole idea of preserving audio content is very positive and important to our cultural heritage; however, it is crucial that any changes made in the existing system do not harm the copyright owners in any way. 

The study further emphasizes that digital development does not ensure preservation for present and future creations. As time progresses, newborn digital recordings are in similar danger of being lost, like old 78-rpm recordings. The dissemination of sound recordings is happening exclusively in digital format, via downloading and streaming. Inexpensive tools for production and recording, matched with efficient marketing tools, allow new artists to offer their productions directly to their costumers. Therefore, the institutions responsible for sound recording preservation will have to face challenges like the diversity of file formats, possible virus- contaminated files, digital rights management and legal issues related to the capture and maintenance of these files. 

Another arduous task will be the discovery and selection of the recordings to be preserved, due to the immense quantity of potentially important material, extensively spread on the Internet. Meanwhile, much information is being lost. For instance, a podcast that could have great content for scholars may not be available the following month. It could be due to the closure of the web site, or an inability or refusal to pay royalties. As a possible solution, the Library of Congress considered capturing the entire audio material produced online. Although the modern industry has all of the technology required to complete such a task, under the cur- rent law and license agreements, it is illegal to copy this born-digital content to public access servers and to provide access to it in an institutional setting. Dark archives – where data has restricted access until the content falls into public domain – are suggested in- stead, but funding for an archive that has such limited use may be very difficult. 

It could be said, as a student did at an NRPB public hearing in 2006, that “the preservation of music is meaningless if this music is not accessible”. Indeed, from a business perspective, access is fundamental to the viability of investment in the area. The costs of preservation are tied to the possibility of exploring and exploiting the audio material. An increase in funding for sound recording preservation will only occur with enhanced models of licensing agreements that grant access to a vast variety of works, including unpublished and out-of-print recordings. Sony Music Entertainment took one step in this direction. They licensed their repertoire of recordings from the acoustical era (before the advent of microphones and electrical recording) to the Library of Congress Jukebox, a tool that soon will be streaming approximately 10,000 recordings to the public. 

NRPB gave special attention for old materials in their study. They observed that the works made before 1972 are protected by a confusing set of different state, civil, criminal and common laws. It was only that date that federal laws started to look after the copyright of sound recordings. The actual law keeps these works under state regulation until 2067. According to NRPB’s analysis, this provision should be repealed and all recordings produced should be placed under a single, understandable and more coherent national law. As for the material that no owner could be located – orphan works – the proposal is to legalize their usage by means of preservation. The report also suggests a compulsory license for abandoned or out-of- print recordings, so third parties can reissue those works with an appropriate compensation to the rights owners. 

It is clear that the interests of copy- right owners and of those responsible for pre- serving the nation’s recorded sound heritage are in conflict. The recorded sound preservation is critically affected by restrictions and limitations fixed in the US copyright law. It is important to find a perfect balance so that copyright owners can be compensated and organizations can achieve their fair goals of preservation. The complete study from the Library of Congress is available for purchase and as a free download at

by Luiz Augusto Buff
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A Far Reaching Copyright Change in Brazil

Originally published in oct-10 issue of The Music Business Journal – Berklee College of Music

Last year, Brazil was rated the eleventh top country in recorded music sales. It was responsible for a significant rise in overall music sales, a claim that few countries, if any, can make. In addition, it is one of the fastest and largest growing emerging markets, classed under the BRICI umbrella of outstanding performers (Brazil, Russia, India, China, and Indonesia). It is the most populated country in Latin America, and in this regard dwarfs Mexico, its nearest rival. The future looks bright for Brazil, who will also host the FIFA World Cup in 2014 and the Olympics in 2016.

Recently, Brazil conducted a public consultation about a bill to reform the actual copyright law proposed by the Ministry of Culture (MOC). The Ministry is working on a final report that should be sent to the new president elect on October 31 for analysis. The major role of the bill is to strengthen and balance author’s rights, along with a constitutional guarantee of free access to culture. In addition, the bill promises to make concession to modern forms of distribution. 

The current copyright collection and distribution system in Brazil is quite different from that of the US and other countries. It is administered by a central organization, theEscritório Central de Arrecadação e Distribuição(ECAD), which is responsible for collecting all royalties from performing, mechanical and neighboring rights and then distributing the proceeds to the relevant author societies. Those societies then distribute the royalties to their members. In the last couple of years the ECAD has shown a lack of transparency in the distribution of collections, leading the Legislative Assembly of Sao Paulo to open an inquiry. The investigation has revealed wrongdoings far beyond ECAD’s legal and statutory rights. 

To correct this, the reform of the copyright law aims to create the Instituto Brasileiro de Direito Autoral (IBDA) an organization controlled by the MOC that oversees the administration of copyright in Brazil and provides arbitration. Many entities have criticized that idea, claiming that it would be public interference in what is a strictly private commercial matter. In a recent press conference, the Brazilian Minister of Culture, Juca Ferreira, explained that this organization would be created to serve as an intermediary between artists, the collection societies, and all other parties by helping them litigate conflict and provide administrative support. The statement was meant to demystify the idea that the new IBDA would nationalize the collection of copyrights, which will continue in private hands. It is important to mention that all the top 20 music markets already have an equivalent administrative structure to manage their copyright collections. 

In order to give authors greater control of their work, the new text of the copyright law clarifies the licensing concept, allowing the exploitation and usage of the intellectual work without a total transmission of the rights. The publishing contracts will no longer be able to contain clauses alluding to a (voluntary) cession of rights. The proposal also foresees the revision and cancellation of unfair or abusive contracts. 

The concept of fair use will be incorporated in the law, guaranteeing the right of free access to culture and allowing the use of intellectual work for educational and didactical purposes. In the Academy, the need for authorization and prior payment would not be necessary since it does not involve economic exploitation of the activity. After the public consultation, however, it was necessity to revisit this statute, so that authors were better protected from the misuse of fair use. 

The new law will also allow someone that owns an album to make copies of it for private use without the need of authorization. That guaranties the interoperability of digital files. Therefore, to own a CD and transfer its music to an iPod will now be legal. In addition to that, depleted works could be reproduced without the need of authorization for non-commercial purposes. 

However, the rising of broadband services and mobile subscriptions increases the worry about illegal file sharing. This is a problem that affects almost all countries and it has been difficult to find a satisfactory solution in the new bill. A lobbyist group, the International Intellectual Property Alliance (IIPA), has criticized its file sharing and piracy provisions. The final text will likely address such misgivings. Moreover, at its final hearing the MOC attested that it would work to improve the concept of interactive access in conjunction with better distribution provisions, thereby allowing the development of new business models for the Internet. 

Another important change proposed regarding the music market is the criminalization of payola. To avoid unfair competition, the act of artificially forcing the playing of songs through payment or favors will be considered a “violation of the economic order and the right of free access to culture”.
An intractable amount of legal issues clutter the music business today all over the world. The bottom line is that all the interests of the music stakeholders must be taken into account and, to some extent, balanced. The questions raised in Brazil over the modernization of its existing copyright law could well be the new template used by younger nations as they adjust to shifts in the dissemination of content. 

By Luiz Augusto Buff

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This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License