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Position Statement on Copyright and Sound Recordings (2011)
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The following document was approved by the Board of the Society for Ethnomusicology in January 2011.

Ethnomusicologists have utilized recordings for study, research, and teaching since the invention of the earliest recording technologies. They make their own recordings as part of their field research and consult recordings in archives made by previous generations of ethnographic researchers. They also make use of commercially issued recordings of popular and ethnic music, including those in now-obsolete formats. Because of the restrictions and inadequacies of current U.S. copyright law, access to these recordings is often difficult and sometimes impossible.

The difficulty is especially acute with commercial recordings because so many of them are no longer available through common vendors: ethnomusicologists must either seek out and use older recordings on-site in libraries and archives, collect older recordings from specialty vendors in high-priced collectors’ markets (and maintain playback equipment themselves), or rely on commercial reissues of the recordings they need. But according to a study by Tim Brooks commissioned by the National Recording Preservation Board, only 14% of "legacy” commercial recordings have been reissued. (See: Survey of Reissues of U.S. Recordings. Washington, DC: Council on Library and Information Resources, August 2005.)

Preservation of fragile early recordings is also a concern. Digital copying according to archival standards is both possible and necessary because analog preservation methods are no longer viable. But provisions of the copyright law intended to curb file sharing and piracy threaten pre-emptive preservation copying of at-risk sound recordings before they have deteriorated. Providing access to sound recordings, except on-site in a repository, is also legally questionable. Archivists, researchers and educators are unsure about the legality of making digital preservation copies and of sharing digital copies even for research and educational uses.

The current inadequacies of federal copyright law make this situation even worse. Recordings made before 1972 are not covered by federal law: they are in copyright limbo—covered only by applicable state laws (usually anti-piracy laws) and common law, which grants copyright in perpetuity. Currently there is no public domain for these recordings: the earliest date that any pre-1972 recordings will enter the public domain is 2067, no matter when they were made.

The difficulties in digitally preserving legacy recordings and making them available in digital form to legitimate users for research and teaching are obvious under the current law.

Therefore, the Society for Ethnomusicology joins the Association for Recorded Sound Collections, the Music Library Association, the Society for American Music, the American Library Association, the Popular Culture Association, the Association of Moving Image Archivists, the International Association of Jazz Record Collectors, and the Society of American Archivists in supporting the initiatives of the Historical Recording Coalition for Access and Preservation that request Congress to address the copyright situation of sound recordings with a view to erasing their unique copyright status and applying federal copyright law retroactively to recordings made before 1972.

The Society also recommends that the copyright law be amended to make it clear that it is permissible for libraries and archives to make digital preservation copies of rare and endangered recordings before they have deteriorated, and that it is permissible for repositories to provide remote access to digital copies of sound recordings for research and teaching.

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