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The Fight for Copyright Reform and What It Means for You. Tim Brooks ARSC Conference May 2009. What If --- ?. 100s of private CD reissues of pre-1940 recordings legally available. What If --- ?. 100s of private CD reissues of pre-1940 recordings legally available

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The Fight for Copyright Reform and What It Means for You


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what if
What If --- ?
  • 100s of private CD reissues of pre-1940 recordings legally available
what if4
What If --- ?
  • 100s of private CD reissues of pre-1940 recordings legally available
  • 1000s of websites with free streaming and downloads of historical recordings
what if6
What If --- ?
  • 100s of private CD reissues of pre-1940 recordings legally available
  • 1000s of websites with free streaming and downloads of historical recordings
  • Archives free to preserve and circulate copies
  • Clear rules about what is under copyright, how to legally use orphan works
  • Copyrighted but long out-of-print recordings could be used for a reasonable fee
what if7
What If….
  • Actually, most of this IS true… everywhere except in America
  • Every country except the U.S.A. now has historical recordings in the public domain
    • Benefits the public
    • Causes no discernable harm to rights holders
  • So why not in the U.S.A.?
the state loophole
The State “Loophole”
  • Until 1976 recordings not under federal law, little U.S. experience
  • Justice Dept. thought pre-1972 recording might fall into p.d. upon passage of law; sent memo to House-Senate conference committee
  • “Technical amendment” added by conference committee leaving pre-1972s under state law for 75 years. No public debate.
  • A “thundering blunder” by the DOJ?
the next 30 years
The Next 30 Years
  • Major overhaul of copyright in 1990s.
  • No one paid attention to Section 301(c) – the state exception.
  • A few warnings, but they went unheeded.
  • NO ADVOCATE IN WASHINGTON FOR HISTORICAL RECORDINGS.
  • ARSC did nothing.
problem state law for pre 1972 recordings
Problem: State Law for Pre-1972 Recordings
  • Brought into stark relief by Capitol v. Naxos (NY, 2005)
    • Sweeping, one-sided decision
  • “Common law.”
    • Perpetual and absolute
    • No public domain
    • Few provisions for preservation or fair use
  • Much preservation work technically illegal.
  • Few lawsuits – but don’t have to be.
    • Climate of fear
    • Many restrictions on access
    • “Dark archives”
what do we do timeline
What Do We Do? – Timeline
  • 2005: Position statement by ARSC: “Several provisions of U.S. copyright law impede the effective preservation of historic recordings and unduly restrict public access to those recordings.”
  • 2006-07: Copyright & Fair Use Committee develops specific recommendations.
  • 2007: Researched tax regulations re: non-profits.
  • 2007: Interview with Rep. Boucher.
arsc five copyright recommendations
ARSC Five Copyright Recommendations
  • Place pre-’72 recordings under single, understandable national law (repeal sec 301c).
  • Harmonize federal term with other countries (i.e., 50 to 75 years).
  • Legalize use of “orphan” recordings.
  • Permit use of “abandoned” recordings with appropriate compensation to copyright holder.
  • Permit “best practices” digital preservation.
timeline 2008
Timeline - 2008
  • ARSC hired representative in D.C.
    • Malcolm Grace, Wexler & Walker
  • Met with staff for 24 key members of Congress.
  • Met with Register of Copyright Marybeth Peters.
  • Met with RIAA.
  • Obtained support from six organizations: ALA, AMIA, IAJRC, MLA, SAM, SAA (total 70,000+ members).
  • Prepared OW amendment directing Copyright Office to study repeal of 301(c). Lined up Democrat and Republican co-sponsors.
timeline 2009
Timeline - 2009
  • Generous support from ARSC members.
  • Formed HRCAP coalition with MLA, SAM.
    • Also helps with funding.
  • Website: www.recordingcopyright.org
  • But Orphan Works Bill (and amendment) stalled, had to explore other options.
a major breakthrough
A Major Breakthrough!
  • March 11, 2009: Pres. Obama signs the Omnibus Appropriations Act.
  • Includes directive that Copyright Office study bringing pre-1972 recordings under federal law.
    • Effect on preservation
    • Effect on public access
    • Economic impact on rights holders
  • Used ARSC language.
  • Deeply grateful to Appropriations Committee.
what to expect next
What to Expect Next
  • Copyright Office must take public comment, report in two years.
  • For first time this will shed light on a dark corner of copyright law.
  • Opens the door for more to come.
  • No guarantees though.
    • There will be pushback.
    • We must make our case!
what to expect next19
What to Expect Next
  • Inertia.
  • Other agendas.
  • Fear.
  • There has been fierce, sometimes irrational opposition to Orphan Works.
the battle over orphan works
The Battle over Orphan Works
  • Despite layers of protection for creative artists, and three years of negotiation…
  • Website: A MILLION PEOPLE AGAINST THE ORPHAN WORKS BILL!!!
  • “A threat to the intellectual property rights, privacy and free speech of all Americans”
  • “Unalienable right” to have copyright “for eternity”
  • “License to steal!”
  • Coalition of music groups loudly oppose.
slide22
But…
  • The RIAA is willing to talk.
what we ve learned
What We’ve Learned
  • No one knew!
  • Much “soft” congressional support.
  • Perceived as non-partisan, for the public good, not harmful to stakeholders. We’re the “white hats.”
  • House is where IP legislation originates.
  • Chairmen are extremely powerful.
  • We must “Talk to stakeholders.”
  • There may be a “fear campaign” against it.
  • Will take time, persistence.
  • Will take $$$.
  • Change is possible.
thank you www recordingcopyright org
Thank Youwww.recordingcopyright.org
  • Laws are being rewritten.
  • The door has been kicked ajar.
  • Copyright Office study huge breakthrough.
  • We can make a difference.