Time to fix copyright on sound recordings

by Walter Olson on March 15, 2013

Terry Teachout, WSJ (via About Last Night):

…In Europe, sound recordings enter the public domain 50 years after their initial release. Once that happens, anyone can reissue them, which makes it easy for Europeans to purchase classic records of the past. In America, by contrast, sound recordings are “protected” by a prohibitive snarl of federal and state legislation whose effect was summed up in a report issued in 2010 by the National Recording Preservation Board of the Library of Congress: “The effective term of copyright protection for even the oldest U.S. recordings, dating from the late 19th century, will not end until the year 2067 at the earliest.… Thus, a published U.S. sound recording created in 1890 will not enter the public domain until 177 years after its creation, constituting a term of rights protection 82 years longer than that of all other forms of audio visual works made for hire.”

Among countless other undesirable things, this means that American record companies that aren’t interested in reissuing old records can stop anyone else from doing so, and can also stop libraries from making those same records readily accessible to scholars who want to use them for noncommercial purposes. Even worse, it means that American libraries cannot legally copy records made before 1972 to digital formats for the purpose of preservation—not unless those records have already deteriorated to the point where they may soon become unplayable.

That’s crazy.

{ 3 comments }

1 Leland D. Davis 03.15.13 at 11:18 am

Another example of how the intellectual property system in the US has become broken. The original purpose of IP in the US was to encourage innovation. Now, because we have repeatedly expanded IP protection in length of time and breadth of coverage, IP laws are actively used to discourage innovation. Whether it is companies filing “patents” where they have invented nothing (cannot produce a working product), only to sue those who do manage to produce a working product, artists being hobbled in their ability to borrow meaningfully from old works or being threatened by Hollywood bigshots, or scholars discovering that “fair use” doesn’t mean what it used to, our IP laws seem to be accomplishing the opposite of what they were intended. We need to get back to limited periods of time (say, 7 years for patents and 25 for copyright – no extensions or modifications) for protection, requiring a working model before a patent is issued, and basically axe most of the DMCA.

2 rxc 03.15.13 at 12:07 pm

@Leland D. Davis: ALthough I agree with your general comment, I don’t understand why inventors should get a shorter time for patents than authors for creative works. Why should someone who draws a mouse get better protection and rewards than someone who invents a cure for a nasty disease, or a machine that relieves people from tedious work?

3 VMS 03.15.13 at 1:26 pm

Article I Section 8 of the Constitution, the authority for patents and copyrights, states:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

A patent grant of 20 years from date of application is about right. Similarly a copyright in a work of about 20 years should be sufficient to meet the Constitutional mandate of “promoting the progress of science and the useful arts.” In the old days a grant of 28 years for a copyright was given. Now, the copyright term is essentially perpetuity.
Under the common law a life in being plus 21 years was deemed to be “in perpetuity.”

I do not think that rolling copyright protection back to 20 years will result in a decline in the works of authorship, or that someone (or a corporation) will not publish, make a sound recording or a movie for lack of a longer term.

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