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Frequently Asked Questions

What do you mean by “historical recordings”? How old do they have to be?

There is no fixed definition, but recording history divides itself neatly into technological periods (cylinder recordings from about 1890-1910, 78s from c.1900-1950s, microgroove from 1950s-1980s, CDs from 1980s-today, etc.) and most historians would consider anything from the 78 rpm era or earlier to be “historical.” Some LPs and 45s could be considered historical as well, however we do not suggest that recordings less than 50 years old should be in the public domain. Exactly how long the copyright term should be is a matter for negotiation.

Why does the U.S. have such an unusual copyright system, with pre-1972 recordings under state control and no public domain?

Prior to the 1976 Copyright Act sound recordings were not covered by federal law. A provision was inserted into the 1976 act at the last minute, while the bill was in House-Senate conference committee, specifying that recordings made prior to 1972 would remain under state law until 2047 (this has since been extended to 2067). After that they would be brought under federal law, which unlike state law provides for a public domain. The reason given at the time was to ensure that pre-1972 recordings did not immediately fall into the public domain upon passage of the bill. The provision, which was arguably “overkill,” was never debated.

Can’t people just buy used copies of old recordings, as they do for out-of-print books?

Of course, but unlike books, records are technology-dependent. Unless you have the correct playback equipment like a 78 rpm turntable or an antique Edison cylinder phonograph, you won’t be able to play them. Moreover most early recording formats are fragile, good-condition copies can be very hard to find, and they aren’t lent by libraries. Finally, why should there be no public domain for recordings, as there is for books and for every other form of intellectual property?

Aren’t your proposals a threat to the recording industry, which is already struggling?

Actually these proposals should help the industry. Its income from historical reissues is minimal (which is why it releases so few of them) so there’s really nothing to lose. However bringing pre-1972 recordings under federal law would open the door to federally-granted revenue streams such as internet streaming (and potentially terrestrial performance rights), which could be considerable for 1950s and 1960s recordings. The record industry should be focused on the future not on the past; let the archivists and historians take care of that.

What should performing artists think about your proposals?

If they want their work heard, they should be in favor of them. What good does it do to make a recording if the record company won’t keep in release? The American Federation of Musicians (AFM) and the American Federation of Television and Radio Artists (AFTRA) have both made the same recommendation that HRCAP makes in regard to out-of-print recordings, namely “permit and encourage the reissue by third parties of ‘abandoned’ recordings, those that remain out of print for extended periods, with appropriate compensation to the copyright owners” (i.e., compulsory licensing). Archivists and artists have a lot in common, they both want recordings to be available. Nobody benefits from locked-up recordings, whether they are new or old.

Who gets the revenue from historical recordings when they are reissued?

The vast majority aren’t reissued (as noted elsewhere), but when they are it’s usually the record company, not the artists. Most sidemen and even principal artists during the early days of the industry did not receive royalties, only a fixed session fee. Have you ever seen a recording contract? It’s extremely rare for a living artist to still be collecting royalties from a recording that is 60 or 70 years old, and that rare case should not be an excuse to lock away everybody else’s recordings. Of course with a public domain artists or their descendents would be free to release the records themselves if they wished. So would the record company; it just wouldn’t have a government-enforced monopoly.

Aren’t other countries trying to lengthen their copyright terms for recordings, and bring more early recordings under copyright?

The international record companies are fighting to extend copyright everywhere, to increase their monopoly control for up to 95 years—even though in most cases they won’t use it. They suffered a severe setback when the U.K. refused to extend its 50-year term in 2006. Most scholars and economists oppose term extension, and extensive studies have shown that it will cost the public money while not benefiting musicians, however politicians have largely ignored these studies and backed the companies. The companies next tried to push through a 95 year copyright term throughout the European Union, but again there was a furious backlash. Eventually a compromise was reached in which the term was extended from 50 to 70 years, but with significant conditions. The companies get the extra 20 years only for recordings that they keep in print ("use it or lose it"), there is no retroactivity (everything made prior to the early 1960s stays in the public domain), and they have to start paying backing musicians, not just the "stars," no matter what the original contracts said. Separately, the European Union has also enacted legislation allowing the use of "orphan works." The Europeans realize how badly the U.S. model has turned out and that extending absolute monopoly control for a century does not make sense.

Can’t record companies make historical recordings available cheaply simply by selling them online?

No. Many companies destroyed their early master recordings, so copies in excellent (“mint”) condition must be found and purchased on the open market (difficult and expensive), they must be individually converted to digital files by transfer experts (expensive), and then mounted on a continuously-maintained website. This is economically unfeasible for large numbers of recordings.

Why should the general public care about the length of recording copyrights?

Copyright is a government-enforced monopoly. Under a monopoly prices are always higher and scarcity can be enforced. That is why patents only last for 20 years; if they lasted longer we would be paying a fortune for aspirin!

Could the problem of unavailability be solved by a “use-it-or-lose-it” system, whereby the record companies could keep their copyrights but only if they made the recordings available at a reasonable price?

Yes, within reason. (At some point there should be a public domain as the Constitution mandates, and as there is for every other type of intellectual property.) This is what they now have in Europe.

Copyright owners are very sensitive about access, so why not concentrate on preservation and forget about access?

Preservation and access are inextricably linked, for several reasons. As a practical matter it is extremely difficult to obtain funding for preservation when the results cannot be made available to the public; donors are simply not interested when the results of their generosity cannot be shared. This is a phenomenon known as “dark archives.” Also, archivists will tell you that the best preservation is duplication. The more perfect copies exist, in many hands, the better the chance that the sound will survive. Finally, why should our generation and several more to come be denied access to our cultural history, to no one’s benefit?

Is this just about money?

It’s primarily about the right of the public to have access to its cultural heritage. However copyright can also be used for purposes of censorship. Under copyright law no reason need be given to withhold a work: the right is effectively absolute. Originally this was intended to permit a creator to control the use of his or her own work, but in a world where most historical copyrights are held by corporations or other third parties it gives them that absolute power. There are many examples of copyright being used to suppress works for non-economic reasons, for example modern corporations afraid that a historical work might offend someone (e.g. Disney withholding the Academy Award-winning Song of the South) or heirs who wish to enforce their own social views (e.g. the Margaret Mitchell estate attempting to suppress publication of a novel portraying Gone with the Wind from the slaves’ point of view).

Is HRCAP a “PAC” (political action committee)?

No. A political action committee supports political candidates. HRCAP is non-partisan. It does not back candidates or take sides in elections. It will work with whoever is elected to obtain laws that help preserve and make accessible our audio heritage.

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