Why you’re not allowed to hear most old recordings

Wax cylinder (Edison)

Wax cylinder (Edison)

The U.S. Constitution empowers Congress “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.” In 1976, Congress set the limit at 75 years or the life of the author plus 50 years. In 1998, it extended both terms by 20 years.

At least that’s true for most of what comes under the copyright law. For some reason, sound recordings do not fall under the federal copyright law. Instead, they fall under, and are crushed by the weight of a tangle of federal and state regulations that have the effect of preventing them from ever entering the public domain.

Public domain simply means a body of works that are not subject to copyright laws. Therefore anyone is free to publish them or otherwise use them without having to obtain anyone’s permission or pay anyone for the privilege.

Copyright law for nearly everything

By 1998, any print materials (including movies, which are essentially printed on film) published before 1923 had entered the public domain. Some works published between 1923 and 1977 were also in the public domain if they had either been issued without a © symbol or their copyright had not been renewed after the end of the initial 28-year term specified under the old copyright law.

The 1998 legislation has the effect of preventing anything else from entering the public domain until 2018. And if business interests can persuade Congress to grant another extension before then, it will take even longer before anything enters public domain.

In some cases, no record exists of whether a particular work was ever copyrighted. These are called “orphan works.” It’s not like it’s illegal to use them as if they were in the public domain, but there is an obvious risk. Someone might own the copyright, object to the use, and easily sue for damages.

Most people find copyright law and what it allows them to do confusing enough. As I said, sound recordings have been left out.

Sound recordings

Vinyl record grooves

Closeup of the grooves on a vinyl record

According to a report issued by the National Recording Preservation Board of the Library of Congress in 2010: “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.”

Here’s what it means:

  • Recording companies secured copyrights to the recordings they made. Many older companies no longer exist, but the copyrights have passed on to successor companies.
  • Recording companies may reissue any older recording they want to.
  • If a recording company does not care to release its older recordings, they can and do prevent anyone else from doing so.

Preservation issues

sound recordings

Reel to reel tape deck. 1960 advertisement

The technology of preserving writing with ink on paper is older than the printing press. One needs only to look at the writing in order to be able to read it. If the paper tears or otherwise becomes damaged, there are time-honored methods of repairing and preserving it.

Sound recordings, on the other hand, require some kind of machine as a “mediator” between the recording and the listener. Sound recordings have existed in a wide variety of forms, including but not limited to

  • Wax cylinders
  • Wax discs
  • Vinyl discs—with much narrower grooves than wax recordings
  • Magnetic tape
  • Compact discs
  • MP3 files

Each of these forms requires different machines to play them back. In fact, magnetic tape has existed as reel-to-reel tape, cassette tape, and 8-tracks. Fixing a damaged recording is much more difficult than repairing torn paper. It might not be possible at all. The playback machine must also be kept in good repair.

The best way to preserve a sound recording is not to keep the original recording medium in good repair. It is to copy it to a newer technology. Enrico Caruso’s recordings, first issued on wax at a time when the cylinder and the disc were engaged in the first of many recording format wars. They have been reissued on every subsequent technology.

We can listen to Caruso’s recordings today because RCA, the copyright owner, can still profit from them. The vast majority of recordings are not commercially worth reissuing on a new technology.

Libraries have taken on responsibility for preserving our cultural heritage and making it widely available. Except that the current copyright tangle absolutely prohibits American libraries from preserving old sound recordings and making them widely available.

According to European copyright law, on the other hand, sound recordings enter the public domain 50 years after they were first issued. European companies can reissue any recordings issued before 1963 that they want to. They just can’t sell them here.

Source: Copyright Protection the Serves to Destroy / Wall Street Journal, March 15, 2013

Photo credits: Public domain, from Wikimedia Commons, except

Reel-to-reel tape player ad. Some rights reserved by Nesster.

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