Excited About Digitizing Audio History? Don’t Be

This week the Library of Congress released the National Recording Preservation Plan, a report commissioned by the National Recording Preservation Act of 2000. It’s gotten a lot of pro forma coverage from the New York Times, LA Times, Chicago Daily Herald, even Spin. The stories mostly follow the form of the report, so they all bury the real lead in just the same way that the report does.

Mostly the Plan covers best practices for archiving, digitizing, and inventorying , but in the middle it does address the copyright issues involved in making digital copies to preserve America’s audio history. Let’s break this down with a few bullet points:

  • Anything recorded before 15 February 1972 isn’t covered by federal copyright law but by state and common law, which makes it almost impossible to tell whether it would be legal to digitize the recordings for preservation purposes. (Most likely answer? It isn’t.)
  • Recordings made since 1972 can only legally be digitized for preservation (without explicit permission from the rights-owner) under Section 108.
  • Copying under Section 108 is only legal if the item is already degrading. No preemptive digitization is allowed.
  • Once a library has made a single digital copy under Section 108, it can’t make it available in any way it couldn’t do with the original object. Yes, that means no streaming or off-site downloads.

Depressed yet? The report goes on to provide a number of very reasonable suggestions for how compulsory or non-compulsory licensing, or copyright warning, could improve the situation. I’ll let you guess how likely any of those are to happen, considering it’s been thirteen years since Congress asked for this report.

It drives me nuts when, as happens in a few comment threads about the Library of Congress report, people ask “but isn’t this in the public domain?” If it was printed or recorded since the 1920s, it’s almost certainly not in the public domain. The easy availability of used copies, the potential to find amateur digital copies online, the unlikelihood of the rights-holders making any more money: none of these matter when it comes to digital preservation. Libraries never know when they’ll get sued—like HathiTrust was by the Authors Guild last year (the case was about much more than just Section 108 preservation copies, but the Authors Guild was quite specific that it considered digital preservation copies illegal). If we expect to preserve our twentieth-century intellectual heritage, let alone the current “born-digital” materials (and that’s a story for another day), we can’t just sit back and say “isn’t this in the public domain already?” Because by the time it is, it’ll all be gone.

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