The Fight for Copyright Reform and What It Means for You

Tim BrooksTim Brooks

ARSC ConferenceARSC Conference

May 2009May 2009

What If --- ?

100s of private CD reissues of pre-1940 100s of private CD reissues of pre-1940 recordings legally availablerecordings legally available

What If --- ?

100s of private CD reissues of pre-1940 100s of private CD reissues of pre-1940 recordings legally availablerecordings legally available

1000s of websites with free streaming 1000s of websites with free streaming and and downloads of historical recordingsdownloads of historical recordings

Foreign Archival Websites

What If --- ?

100s of private CD reissues of pre-1940 100s of private CD reissues of pre-1940 recordings legally availablerecordings legally available

1000s of websites with free streaming 1000s of websites with free streaming and and downloads of historical recordingsdownloads of historical recordings

Archives free to preserve and circulate copiesArchives free to preserve and circulate copies Clear rules about what is under copyright, how to Clear rules about what is under copyright, how to

legally use orphan workslegally use orphan works Copyrighted but long out-of-print recordings Copyrighted but long out-of-print recordings

could be used for a reasonable feecould be used for a reasonable fee

What If….

Actually, most of this Actually, most of this IS IS true… everywhere except true… everywhere except in Americain America

Every country except the U.S.A. now has Every country except the U.S.A. now has historical recordings in the public domainhistorical recordings in the public domain Benefits the publicBenefits the public Causes no discernable harm to rights holdersCauses no discernable harm to rights holders

So why not in the U.S.A.?So why not in the U.S.A.?

The State “Loophole”

Until 1976 recordings not under federal law, little Until 1976 recordings not under federal law, little U.S. experienceU.S. experience

Justice Dept. thought pre-1972 recording might Justice Dept. thought pre-1972 recording might fall into p.d. upon passage of law; sent memo to fall into p.d. upon passage of law; sent memo to House-Senate conference committeeHouse-Senate conference committee

““Technical amendment” added by conference Technical amendment” added by conference committee leaving pre-1972s under state law for committee leaving pre-1972s under state law for 75 years. No public debate.75 years. No public debate.

A “thundering blunder” by the DOJ?A “thundering blunder” by the DOJ?

The Next 30 Years

Major overhaul of copyright in 1990s.Major overhaul of copyright in 1990s. No one paid attention to Section 301(c) – the state No one paid attention to Section 301(c) – the state

exception.exception. A few warnings, but they went unheeded.A few warnings, but they went unheeded. NO ADVOCATE IN WASHINGTON FOR NO ADVOCATE IN WASHINGTON FOR

HISTORICAL RECORDINGS.HISTORICAL RECORDINGS. ARSC did nothing.ARSC did nothing.

Problem: State Law for Pre-1972 Recordings

Brought into stark relief by Brought into stark relief by Capitol v. Naxos Capitol v. Naxos (NY, 2005)(NY, 2005) Sweeping, one-sided decisionSweeping, one-sided decision

““Common law.”Common law.” Perpetual and absolutePerpetual and absolute No public domainNo public domain Few provisions for preservation or fair useFew provisions for preservation or fair use

Much preservation work technically illegal.Much preservation work technically illegal. Few lawsuits – but don’t have to be.Few lawsuits – but don’t have to be.

Climate of fearClimate of fear Many restrictions on accessMany restrictions on access ““Dark archives”Dark archives”

Result: Availability from Rights Holders(% Protected Available by Time Period)

0

5

10

15

20

25

30

35

40

1890 1895 1900 1905 1910 1915 1920 1925 1930 1935 1940 1945 1950 1955 1960

% Rts Owner

What Do We Do??

What Do We Do? – Timeline

2005: Position statement by ARSC: “Several 2005: Position statement by ARSC: “Several provisions of U.S. copyright law impede the provisions of U.S. copyright law impede the effective preservation of historic recordings and effective preservation of historic recordings and unduly restrict public access to those recordings.”unduly restrict public access to those recordings.”

2006-07: Copyright & Fair Use Committee 2006-07: Copyright & Fair Use Committee develops specific recommendations.develops specific recommendations.

2007: Researched tax regulations re: non-profits.2007: Researched tax regulations re: non-profits. 2007: Interview with Rep. Boucher.2007: Interview with Rep. Boucher.

ARSC Five Copyright Recommendations

1.1. Place pre-’72 recordings under single, Place pre-’72 recordings under single, understandable national law (repeal sec 301c).understandable national law (repeal sec 301c).

2.2. Harmonize federal term with other countries (i.e., Harmonize federal term with other countries (i.e., 50 to 75 years).50 to 75 years).

3.3. Legalize use of “orphan” recordings.Legalize use of “orphan” recordings.

4.4. Permit use of “abandoned” recordings with Permit use of “abandoned” recordings with appropriate compensation to copyright holder.appropriate compensation to copyright holder.

5.5. Permit “best practices” digital preservation.Permit “best practices” digital preservation.

Timeline - 2008 ARSC hired representative in D.C. ARSC hired representative in D.C.

Malcolm Grace, Wexler & WalkerMalcolm Grace, Wexler & Walker Met with staff for 24 key members of Congress.Met with staff for 24 key members of Congress. Met with Register of Copyright Marybeth Peters.Met with Register of Copyright Marybeth Peters. Met with RIAA.Met with RIAA. Obtained support from six organizations: ALA, AMIA, Obtained support from six organizations: ALA, AMIA,

IAJRC, MLA, SAM, SAA (total 70,000+ members).IAJRC, MLA, SAM, SAA (total 70,000+ members). Prepared OW amendment directing Copyright Office Prepared OW amendment directing Copyright Office

to study repeal of 301(c). Lined up Democrat and to study repeal of 301(c). Lined up Democrat and Republican co-sponsors.Republican co-sponsors.

Timeline - 2009

Generous support from ARSC members.Generous support from ARSC members. Formed HRCAP coalition with MLA, SAM.Formed HRCAP coalition with MLA, SAM.

Also helps with funding.Also helps with funding. Website: Website: www.recordingcopyright.orgwww.recordingcopyright.org But Orphan Works Bill (and amendment) stalled, But Orphan Works Bill (and amendment) stalled,

had to explore other options.had to explore other options.

A Major Breakthrough!

March 11, 2009: Pres. Obama signs the Omnibus March 11, 2009: Pres. Obama signs the Omnibus Appropriations Act.Appropriations Act.

Includes directive that Copyright Office study Includes directive that Copyright Office study bringing pre-1972 recordings under federal law.bringing pre-1972 recordings under federal law. Effect on preservationEffect on preservation Effect on public accessEffect on public access Economic impact on rights holdersEconomic impact on rights holders

Used ARSC language.Used ARSC language. Deeply grateful to Appropriations Committee.Deeply grateful to Appropriations Committee.

What to Expect Next

Copyright Office must take public comment, Copyright Office must take public comment, report in two years.report in two years.

For first time this will shed light on a dark corner For first time this will shed light on a dark corner of copyright law.of copyright law.

Opens the door for more to come.Opens the door for more to come. No guarantees though.No guarantees though.

There will be pushback.There will be pushback. We must make our case!We must make our case!

What to Expect Next

Inertia.Inertia. Other agendas.Other agendas. Fear.Fear. There has been fierce, sometimes irrational There has been fierce, sometimes irrational

opposition to Orphan Works.opposition to Orphan Works.

The Battle over Orphan Works Despite layers of protection for creative artists, and Despite layers of protection for creative artists, and

three years of negotiation…three years of negotiation… Website: A MILLION PEOPLE AGAINST THE Website: A MILLION PEOPLE AGAINST THE

ORPHAN WORKS BILL!!!ORPHAN WORKS BILL!!! ““A threat to the intellectual property rights, privacy A threat to the intellectual property rights, privacy

and free speech of all Americans”and free speech of all Americans” ““Unalienable right” to have copyright “for eternity”Unalienable right” to have copyright “for eternity” ““License to steal!”License to steal!” Coalition of music groups loudly oppose.Coalition of music groups loudly oppose.

- Nick Anderson, Houston Chronicle cartoonist, 5/14/08

But…

The RIAA is willing to talk.The RIAA is willing to talk.

What We’ve Learned No one knew!No one knew! Much “soft” congressional support.Much “soft” congressional support. Perceived as non-partisan, for the public good, not Perceived as non-partisan, for the public good, not

harmful to stakeholders. We’re the “white hats.”harmful to stakeholders. We’re the “white hats.” House is where IP legislation originates.House is where IP legislation originates. Chairmen are extremely powerful.Chairmen are extremely powerful. We must “Talk to stakeholders.”We must “Talk to stakeholders.” There may be a “fear campaign” against it.There may be a “fear campaign” against it. Will take time, persistence. Will take time, persistence. Will take $$$.Will take $$$. Change is possibleChange is possible. .

www.recordingcopyright.org

www.recordingcopyright.org

www.recordingcopyright.org

www.recordingcopyright.org

Thank Youwww.recordingcopyright.org

Laws are being rewritten.Laws are being rewritten. The door has been kicked ajar.The door has been kicked ajar. Copyright Office study huge breakthrough.Copyright Office study huge breakthrough. We We can can make a difference.make a difference.