In the new book on Copyright and Cultural Institutions, I argue that libraries, archives, and museums need to engage in informed risk assessment when approaching digitization projects. This is especially true when it comes to sound recordings because the the legal status of sound recordings is a mess. Peter Jaszi’s new CLIR report, Protection for Pre-1972 Sound Recordings under State Law and Its Impact on Use by Nonprofit Institutions: A 10-State Analysis, is a terrific introduction to the problem. As Deanna Marcum’s introduction notes, “…in an environment where there are virtually no public domain sound recordings and where, as discussed in this study, the laws controlling early sound recordings are complex and vast, copyright-related issues present a formidable challenge.”
I’ve been thinking about sound recordings because I am currently serving on a task force of the National Recorded Sound Preservation Plan that is looking at copyright issues in recorded sound preservation. The experience has confirmed what we all know – namely, that any institution that wants to act in this space is going to have to assume a certain amount of risk.
I was interested, therefore, to read in the Chronicle of Higher Education about Judaica Sound Archives at Florida Atlantic University. In spite of the fact that little in their collection is in the public domain, it has still digitized about 45% of its holdings. Much of the material is made available through stand-alone Judaica Sound Archives Research Stations that are distributed to other universities and research centers and which may include copyrighted sound recordings for which permission has not been secured.
A risk-adverse copyright lawyer, after looking at the Archives’ digitization and distribution activities as well as the web site’s possibly incorrect characterization of pre-1923 recordings as being in the public domain (I couldn’t find the metadata that provided information on place of publication), would shut the whole thing down. What I like about the Judaica Sound Archives is that it is seemingly willing to accept the risk in order to preserve and make accessible an important part of our culture. The absence of legal action against it is evidence that it is taking a reasonable risk, even if the law does not explicitly authorize its actions that are undertaken without the permission of the copyright owner.
Libraries, archives, and museums should know when they are taking risks and what the extent of that risk might be. The mere presence of slight risk, however, should not paralyze them from doing things that are socially desirable.