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.