The National Jukebox, the new collection of digitized pre-1925 recordings streamed from the Library of Congress, appears to have been a big success. The LA Times reported that the website logged more than 1 million page views and 25,000 streams in the first 48 hours after it was announced. There are many blog postings and Twitter streams that discuss unusual music and spoken recordings included in the 10,000 streams available. All good news, right?
Among the kudos for the site, one stands out. Michael Weinberg at Public Knowledge in a post on "The Bittersweet National Jukebox" admires the vast variety of recordings on the site, but also notes its dirty secret: namely that the recordings are not in the public domain, but are still claimed by Sony.
I’ve written in the past about the confused state of pre-1972 sound recordings and how many things that we think might be in the public domain (including Edison wax cylinders) may still be protected by state common law copyrights. In this case, it would be easy to think that the recordings, most of which were made before 1923, would be in the public domain. Certainly the sheet music, musical works, and spoken texts that are recorded have likely entered the public domain. But the recordings themselves will remain protected by copyright until 2067 – even though they are in the public domain in most of the rest of the world, where a 50 year term for sound recordings is the norm.
The continued copyright protection of these recordings has one obvious impact on the National Jukebox site: one cannot download copies of the recordings. In spite of the fact that it has had a minimum of 85 years to exploit these recordings, Sony has, according to the LA Times, retained the rights to continue to commercialize them. Apparently anything that the Library of Congress wants to do to preserve these recordings must be done with the permission of Sony.
The potential danger that copyright law poses for the preservation of and access to our recorded cultural heritage led a consortium of archival and library organizations to request that the Copyright Office undertake a study to determine whether the public would benefit if sound recordings were brought under federal protection. The initial responses and the reply comments, both found here, make for fascinating reading. The Association of Recorded Sound Collections, the Music Library Association, the Society of American Archivists, and the Library of Congress all came out strongly in favor of federalization. While recognizing that the exemptions available in federal law are far from perfect, they all felt that professionals in their field would be more likely to act if they were operating within the known boundaries that federal copyright law provides. Furthermore, the possibility that at least some sound recordings (including the sound recordings being made available through the National Jukebox) would enter the public domain would enrich our cultural vocabulary.
The Recording Industry Association of America in its comments naturally opposed the suggestion. No privileged rent-seeker will easily concede its monopolistic advantage, and the RIAA did not surprise anyone (except for not knowing its own name in the title of its submission - “Association” has been dropped).
More surprisingly, ARL and ALA joined the RIAA in opposition to new legislation, in spite of the fact that ALA had initially called for the study. It is well worth reading their comments, but it might be grossly summarized as saying that any legislation is bound to make things worse rather than better. They suggest it would be easier to get librarians and archivists to change their behavior and assume an aggressive stance on fair use than it would be to change the law. (The two organizations recently issued a similar statement as a reaction to the failure of the Google Books Settlement and the subsequent calls for a legislative remedy. Legislation, they seem to suggest, is more likely to make things worse than better.)
The ARL/ALA position appeals to the pessimistic side of me. I wonder, though, if any repository would have been willing to use fair use to justify the creation of the National Jukebox. Should or could the Library of Congress have just ignored Sony and streamed the music on its own?
The Copyright Office is sponsoring a public meeting on 2 and 3 June in Washington to solicit more input, and then we will await their report. It is hard to imagine that any legislation that is opposed by the RIAA will get far under this administration, but the Copyright Office earned everyone’s respect by the thoroughness and thoughtfulness of its report on orphan works. Let’s hope the quality of that report has become the norm.