The Council on Library and Information Resources has just released a report evaluating “Copyright Issues Relevant to Digital Preservation and Dissemination of Pre-1972 Commercial Sound Recordings by Libraries and Archives.” As one might expect, because of copyright law’s restrictions on copying recordings to modern formats, even when no commercially produced version exists, it is often illegal to restore an old degrading work, effectively forcing old recordings to rot away.
The report concludes:
Preservation efforts with respect to pre-1972 sound recordings are hampered by legal restrictions. For example, a work is considered to be in an “obsolete” format, eligible for preservation copying, only if the device necessary to play it is no longer “commercially available.” Under this formulation, even LP and 78-rpm records are not eligible for copying as “obsolete,” since turntables can still be purchased, even though they are no longer commonly used.
And so libraries and archivists have to play a little legal roulette, making strategic choices about what to copy and how to store or disseminate the copies so as to minimize the threat of being sued by a copyright holder.
How should a library or an archives proceed with its preservation mission in the face of such obstacles? One way is to identify and design projects where the risk of infringing on third-party rights (and the risk of suit) is relatively low. For example, a project might make digital copies for long-term preservation but not for current dissemination; focus on older sound recordings, on those with no identifiable right holder, or on those with underlying works in the public domain;… Some combination of such features could reduce the risk of commercial harm to the right holder and increase the likelihood that the activity would be deemed privileged if a claim were to be asserted. This approach can be time-intensive, however, as it requires careful development of projects and regular monitoring to ensure that project guidelines are adhered to and, in many cases, legal and factual research to determine the copyright status of subject works.
If only works would pass into the public domain after a reasonable amount of time, then this would be less of a problem. Or, if renewing copyrights were a more active process, like they were before the 1970s, then recordings could pass into the public domain when their authors no longer cared enough to actively keep up with the copyright.
The simple fact of the matter is that a person or company that owns a copyright on a recording on 78 RPM record or acetate that’s never been copied to a modern format or re-released really isn’t going to lose any money at all if the recording is archived digitally by a library or similar institution. And yet, inattention by copyright holders to degrading works affects us all as pieces of our cultural heritage are lost because the existing recordings are never restored.
In a tangentially related thought, RetroGaming with RocketBoy asks the question, Will Our Old Consoles Die Soon? in reference to video game consoles from the 80s like Nintendos and Ataris. He notes that some older (but not very old) consoles, like the Super Nintendo, have a high failure rate, as do consoles that used optical discs and CDs rather than cartridges, since they have more moving parts that break more easily.
As noted earlier, there are exceptions to copyright law that allow you to make copies of material in obsolete formats where a playback device is not “commercially available.” So, for some games it may be perfectly legal to find a way to copy the cartridges or CDs to use with an emulator (of course, legal or not, this sort of thing goes on every day anyway) for archival purposes.
And yet, emulation is not always possible, as RocketBoy notes:
But how long until all our Sega Saturns and Dreamcasts end up dead? The Saturn is a very complex system and has yet to have a very reliable emulator. While there are some emulators that can run a few games in a playable manner, it still has a long way to go before it would make a decent replacement for the real system. The Dreamcast. of course, is more modern and won’t be perfectly emulated for a while. At this time, we have no alternative to playing Sega’s last two systems.
An interesting predicament, indeed. Which is the other side of the coin: if even it’s legal to make copies, what about formats that are so complex or proprietary that it’s difficult to get the original data into a useful format?
That’s not entirely a copyright question, although the ROMs and other operating system components of videogame consoles are copyrighted, and so a manufacturer, like Sega, has the legal means to prevent some forms of emulation or even prevent someone from making his own home-brew console.
On the individual level, most of us can make personal copies legally, under fair use, or not so legally provided we only make personal use of them and don’t share or distribute (widely). And perhaps it may turn out to be that each of us is part of a global archive, making personal backups of stuff that libraries and institutions cannot. I’m not sure that’s the best scenario, since individuals don’t necessarily do as good a job of cataloging and storage. But that’s not our fault, that’s the fault of bad laws forced into being by the greedy transnational entertainment cartel.