MITCHELL SILBERBERG & KNUPP LLP A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS

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1 A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Sound Recording Preservation Panel Copyright Society of the USA, Nashville, February 14, 2015 Eric J. Schwartz Mitchell Silberberg & Knupp LLP Summary of National Film and Sound Recording Preservation Legislation, Library of Congress Studies and National Plans, and Related Materials 1) National Film Preservation Act of 1988, Public Law No: , 2 U.S.C. 179 (reauthorized in 1992, 1996, 2005, and in 2008; the latter in force through FY 2016). In accordance with the National Film Preservation Reauthorization Act of 1992 (Public Law No: ), a national study and a national plan was undertaken by the Librarian of Congress and the National Film Preservation Board (established by the 1988 legislation). The study and national plan were delivered by the Librarian of Congress in 1993 and 1994, respectively. The 1993 study was the first comprehensive study of film preservation ever undertaken in the United States. The 1994 national plan was prepared by Annette Melville and Scott Simmon, for the Library of Congress, in consultation with the National Film Preservation Board, and was meant as a roadmap to address the myriad legal, technical and financial issues pertaining to preservation and access. The study and the national plan were used as the model for the recording preservation national study and national plan. The film preservation study and the national plan are available on the Library of Congress website. The 4-volume study: The national plan:

2 Page 2 In addition to the national studies and plans, the film preservation legislation authorized the creation of a National Film Registry, to which 25 titles a year are added by the Librarian of Congress, in consultation with the National Film Preservation Board. Films are added to the Registry if they are deemed to be culturally, historically, or aesthetically significant but the titles are also meant to stand in for the thousands of other films, including non-feature films, worthy of preservation and dissemination. For a list of the current 625 titles on the Registry, go to: One of the key recommendations of the National Plan was the need for an organization to focus on the plight of orphan works (a term first coined in the 1993 hearings leading up to the study), in particular, non-commercial non-feature films. To implement that recommendation, in 1996, the National Film Preservation Foundation, a 501(c)(3) organization, was founded in Washington, D.C. Since it began operations in 1997, it has helped to preserve over 2,100 films via grants to over 270 institutions nationwide. Information on the National Film Preservation Foundation can be found at: 2) National Recording Preservation Act of 2000, Public Law No: 106, 474, 2 U.S.C.179 (reauthorized in 2008, in force through FY 2016). Modeled on the film preservation study and plan, the Act of 2000 called for a similar national study and plan for recorded sound, as follows: Sec Establishment of Program by Librarian of Congress. (a) In General The Librarian shall... implement a comprehensive national sound recording preservation program, in conjunction with other sound recording archivists, educators and historians, copyright owners, recording industry representatives, and others involved in activities related to sound recording preservation, and taking into account studies conducted by the Board. The Librarian of Congress first authorized several preliminary studies focused on particular legal (copyright) and technical issues pertaining to sound recordings, followed by a comprehensive study. Like the film legislation, in addition to the national studies and plans, the sound recording preservation legislation authorized the creation of a National Recording Registry, to which up to 50 titles a year are added by the Librarian of Congress, in consultation with the National Recording Preservation Board.

3 Page 3 For a list of the 400 titles currently on the Registry, go to: 3) Library of Congress: Studies on Sound Recording Preservation Issues. The four preliminary studies done under the auspices of the Library of Congress National Recording Preservation Board were: a. Survey of Reissues of U.S. Recordings. Commissioned for and sponsored by the National Recording Preservation Board of the Library of Congress. Tim Brooks, Washington, DC: Council on Library and Information Resources and Library of Congress. Available at A key take-away from this study, looking at reissues (i.e., the availability today) of 1890 to 1964 commercial recordings: On average, rights owners have made available 14 percent of the historic recordings that they control b. Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives. June Besek, Washington, DC: Council on Library and Information Resources and Library of Congress. Available at The purpose of this study was to analyze the copyright and related issues pertaining to pre-1972 sound recordings, and in particular, the impact on digital preservation and dissemination of these older recordings by libraries and archives and on allowable uses, particularly for research and scholarship. c. Capturing Analog Sound for Digital Preservation: Report of a Roundtable Discussion of Best Practices for Transferring Analog Discs and Tapes. Council on Library and Information Resources and Library of Congress, 2006, Washington, DC. Available at: This study examined the technical best practices of transferring analog sound material to digital material, which (unlike for film), is considered an archival quality copy if done at agreed-upon specifications. d. Copyright and Related Issues Relevant to Digital Preservation and Dissemination of Unpublished Pre-1972 Sound Recordings by Libraries and Archives. June Besek, Washington, DC: Council on Library and Information Resources and Library of Congress. Available at The purpose of this study was to pierce[] the U.S. legal fog of federal, state and common law pertaining to unpublished pre-1972 recordings, including for example, taped interviews, oral histories, and archival copies of concert recordings (authorized or bootlegged )

4 Page 4 or of old radio broadcasts which the study noted pose particular challenges for librarians and archives. 4) Library of Congress Study and National Plan on the Preservation and Dissemination of Sound Recordings a. The National Study (August, 2010): The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age. Prepared by Rob Bamberger and Sam Brylawski on behalf of the National Recording Preservation Board. Washington, DC: Council on Library and Information Resources and Library of Congress. Available at: The national study was the first comprehensive survey of the issues pertaining to recorded sound preservation and dissemination in America. b. The National Plan (December, 2012): The Library of Congress National Recording Preservation Plan. The National Recording Preservation Board of the Library of Congress. Prepared by project director, Brenda Nelson- Straus, under contract to the Library of Congress. Washington, DC: Council on Library and Information Resources and Library of Congress. Available at: The national plan was meant to present a course of action, through numerous specific recommendations, to address the legal, technical, financial and other problems confronting rightsholders, libraries and archives, with sound recording holdings to assist with the preservation and dissemination of this material. The New York Times reported on the publication of the national plan: 5) Section 108(h): Library and Archives Use of Older Materials First included in the 1998 copyright term extension legislation (and revised in 2008 to correct a technical error), section 108(h) provides: (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on

5 Page 5 the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply. (2) No reproduction, distribution, display, or performance is authorized under this subsection if (A) the work is subject to normal commercial exploitation; (B) a copy or phonorecord of the work can be obtained at a reasonable price; or (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies. (3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives. 6) Hearst Newsreel Case: Footage Donated to UCLA The acquisition and preservation of older materials, films or sound recordings, depends largely on donations to archives, libraries and museums, whether donated by rightsholders or collectors. This in turn, depends on tax laws pertaining to the valuation of donations which can either spur or hinder donations. One seminal case relating to film materials was: Hearst Corp. v. United States, 28 Fed. Cl. 202 (Fed. Cl. 1993), vacated and remanded No , 1994 U.S. App. LEXIS (Fed. Cir. 1994). In that case, Hearst donated thousands of newsreels on nitrate (pre-1952) film, and they and the IRS disputed the valuation of the physical and underlying rights. This collection, according to public records, continues to approximately $500,000 per year for UCLA, which was granted copyrights in the material in the original donor agreement. 7) Copyright Society Journal: Origins of the National Film Preservation Act of 1988 A history of the 1988 Act: Eric J. Schwartz, The National Film Preservation Act of 1988: A Copyright Case Study in the Legislative Process, 36 J. Copyright Soc y U.S.A. 138 (1989). The origins of the 1988 film preservation legislation were tied to copyright law, in particular, work for hire rules, moral rights, and the colorization of black and white motion pictures. This article follows the twists and turns of the legislative process of the 1988 legislation and its final enactment.

6 Page 6 For more on moral rights and colorization, see U.S. Copyright Office, Technological Alterations to Motion Pictures: A Report of the Register of Copyrights (1989), prepared by Ralph Oman, William Patry, and Eric J. Schwartz. 8) Library of Congress National Jukebox The National Jukebox launched in 2011 features more than 10, rpm discs, issued by the Victor Talking Machine Company between 1900 and The recordings, owned by Sony Music, were licensed (gratis) to the Library of Congress for streaming; they are all available for free to the public from the Library s website. In 2015, the Library expects to add recordings from additional record labels, including Columbia and Okeh, along with selected master recordings from the Library of Congress Universal Music Group Collection (also by a license from Universal Music). The National Jukebox has had over 12 million listens since its launch. Listen at: The National Jukebox is a curated site with materials about each of the recordings and other materials of interest. On the website, see, for example, the 1919 edition of the Victor Book of Opera. It includes plot synopses and lists of recordings the Victor Talking Machine Company offered in In addition to reading the original text, you can listen to nearly every recording listed in the book and even compare different interpretations of the most popular arias of the period. Published in 13 editions between 1912 and 1976, the Victrola (or Victor) Book of the Opera was an ingenious strategy to promote sales of Victor label discs of opera excerpts. For 75 cents, record buyers could learn the plots and production histories of the most popular operas of the day, enjoy illustrations of favorite singers in costumes, and most importantly, have in hand a list of Victor records, with catalog numbers, of excerpts from each opera. To view the 1919 Victor Book of Opera, including the ability to hear various operatic recordings detailed in the book, go to: Enjoy!