Many of the early U.S. sound recordings — those recorded from the late 1800's up to World War II — are essentially locked away from wide public availability. This article will explain why this is so, and why this should concern the world community. It will also propose a solution, termed Project Gramophone, to "free" these recordings by placing them online, where legal, for wide, international access.
This article is a follow-up to David Rothman's TeleRead blog entry of September 30, 2003 regarding Project Gramophone (the website is still under major construction) and the status of older U.S. sound recordings. Many thanks to David Rothman for mentioning Project Gramophone in his blog.
What I outline here is my present understanding of this fairly complicated issue. Similarly, the proposed solutions are not claimed to be the only ones that may be considered; others, including variations on the ones presented here, are certainly possible. Email me at jon@noring.name with comments on my accuracy and conclusions — if necessary, I will amend future versions of this article.
Representatives of the recording industry are invited to provide their perspective on this issue. It is hoped the recording industry will not interpret this article as an attack — which it clearly is not — but rather as an invitation to participate in the solution. As I see it, the recording industry will significantly benefit by freeing the older recordings so they are made widely available.
Commercial sound recordings have been made in the U.S. since 1889. If we examine the first half of this 114-year era, up to early World War II (specifically up to the July 31, 1942 American Federation of Musicians recording ban, which radically changed the landscape of the recording industry), we come to a startling conclusion. The vast majority of these recordings are effectively "locked away in the vaults," essentially unavailable to the public-at-large as legally authorized reissues.
Only a tiny fraction, several thousand out of the many hundreds of thousands (and maybe even over a million when one counts alternate takes) of the commercial pre-World War II U.S. sound recordings ever "waxed" have been authorized for reissue on CD by their current owners.
The remaining recordings, the vast majority, are not available to the general U.S. public (and, by extension, the world-at-large) as "legal," authorized reissues, with little hope they ever will be, at least until 2067, as will later be explained. Only a small community of dedicated private collectors of commercial pressings have access to most of the original recordings. In addition, libraries and archives that have collections of 78 rpm records and cylinders are few and far between, and their collections are essentially unavailable for just anyone to walk in off-the-street for a "casual audition." The original records are quite fragile and, in many cases, extraordinarily rare. Very few people have the needed equipment to play these recordings.
Nearly all of the pre-WW2 commercial U.S. sound recordings are now owned by subsidiaries within three international media conglomerates: Sony, BMG, and Vivendi. These international companies (based in Japan, Germany, and France, respectively) inherited the rights and existing masters to these recordings after a long-series of corporate takeovers and mergers in the recording, movie and publishing industries, starting in the 1920's and which continue today.
First and foremost, we must understand that the corpus of these older U.S. sound recordings is culturally very important to the world community and its heritage. Much of today's music worldwide has been profoundly influenced by early U.S. recorded music and the genres it represents: jazz, swing, ragtime, blues, dance, personality, country, gospel, ethnic, and classical, to name the major ones. In turn, U.S. music from a century ago is an amalgam of European, African, Asian and other influences. In its essence, U.S. music is inseparable from the music of the world, both in origin and in contemporary influence.
Thus, these early recordings transcend simple corporate and legal interests — they are an important part of humanity's common cultural heritage, and must be treated with the seriousness, respect and importance they deserve. They must all be carefully preserved for posterity and be made conveniently and readily available to all. Doing so will inspire new musicians and song writers (which, in turn, will bring enjoyment to the music-listening public as well as benefit the present-day recording industry), will aid in cultural and historical research, and will promote international understanding and, ultimately, world peace. These benefits are impossible so long as these recordings are effectively locked away from the world as they are now.
The reasons for this surprising (and sad) state of affairs, which are both legal and economic, border on the surreal. To explain this, let me give some background, pieces of the puzzle if you will, which after mentioning them, should clarify why the U.S. sound recording heritage is effectively "locked away" as it is.
First, it is important to realize that all U.S. sound recordings recorded before February 15, 1972 are surprisingly not covered under Federal Copyright statutes in the U.S. Why is this so? I won't go into the gory details, but essentially it was a long-standing oversight by Congress that was not fixed until the 1970's. (Note that song compositions, lyrics, and arrangements, which are separate from sound recordings, have been covered by U.S. copyright law for quite a long time, but that is a separate issue which does not contribute to the situation being discussed in this article.)
Does this mean that the pre-1972 U.S. sound recordings are "Public Domain" in the U.S.? Certainly not! Federal copyright law normally preempts any and all State-level laws — but not in this case. Instead, these recordings have been given copyright-equivalent protection by a complex web of State laws. And here nearly all the State legislatures (with the possible exception of Vermont) have been busy over the years granting quite strict State-level protection to these sound recordings using various and clever legal mechanisms under common law and statutory law, such as State copyright laws (some of which appear to have perpetual terms!), anti-piracy laws, unfair trade practice laws, etc., etc. This sad state of affairs will not mercifully end, thanks in part to Sonny Bono, until February 15, 2067 (by Section 301(c) of Title 17), when Federal Copyright law finally takes effect and preempts State law protections of sound recordings; the early recordings will then revert to the Public Domain in the U.S. (as Title 17 currently stands). This includes the earliest commercial recordings released in 1889, a whopping 178 years later! And a paltry 130-140 years of copyright-equivalent protection for the "Golden Era" of recorded music: those recordings from 1925, the start of modern electrical recording, to 1935.
That's the first piece of the puzzle. The second piece deals with simple economics. It is clear that today's media companies derive nearly all of their revenue (and profits, if any) from sales of more contemporary material — their whole focus is today, which is understandable, albeit somewhat regrettable. Even if the major media companies were to pry open their vaults and reissue every pre-WW2 recording they own, the revenue generated from doing that would only be a small fraction of their total, and the profits even tinier. It is difficult to consider reissuing a CD which may only sell from a few hundred to several thousand copies worldwide (many to libraries so the material will be available to all), even when the production costs are relatively small. It is generally not worth their time to bother reissuing much of this stuff from economic considerations alone.
The third piece of the puzzle, related to the second piece, is more troubling: contractual liability, particularly non-expired "perpetual" contracts regarding musician and orchestra leader royalties. Before explaining how this appears to be contributing to "locking the vaults," let's take one step back and note two facts:
Why is this a factor in keeping the older recordings "locked away"? Simple. Because the royalty status of many of the recordings are not clearly documented (if documented at all), legally clearing the recordings for authorized reissue requires significant research, which costs money (and which has to be paid for from the small revenue the reissues will generate).
And more troubling, many of the recordings cannot ultimately be cleared because of lack of adequate documentation (even though, as just noted, it is probable that most have no royalty encumbrances!). The legal risk is that some decades-old estate of a long-dead musician, singer or orchestra leader will come out of the woodwork to claim royalties, even though the estate will probably not be able to prove their assertion by producing the original written contract (the grandchildren can only present to the court 70 or 80 year old hearsay evidence). The cost of defending a claim or lawsuit, even if frivolous and without merit (as it likely will be), will quickly wipe away what little profit the recording company will make in reissuing a series of older recordings, not to mention having to deal with the negative publicity that will inevitably result.
It should now be clear as to the legal and economic factors why the vast majority of pre-WW2 U.S. recordings are effectively "locked-away" by the major media companies that now own them. And it is completely understandable. The economic factors probably also apply worldwide to all pre-WW2 recordings, and not only those recorded in the United States.
The only viable solution I see to this dilemma, other than Congress somehow fixing the problem, or for the international media companies to donate or sell their older recordings to a non-profit international organization (as will be detailed later), is for independent, volunteer-enabled, non-profit organizations to transfer, digitally restore, and place online the older recordings in countries where it is now fully legal to do so by their copyright laws. The original source recordings will come from the many existing private record collections.
The name currently given to this vision is Project Gramophone, a moniker inspired by Project Gutenberg, a successful project started 32 years ago by Dr. Michael Hart to place online the text of books now in the Public Domain, leveraging the help of thousands of enthusiastic volunteers.
This solution appears possible for three reasons:
Unfortunately, this solution is not perfect: it still leaves out those living in the U.S. It will still be illegal by the various State laws for anyone on U.S. soil, at least until 2067, to stream or download most (if not all) of these online recordings from a foreign server. But at least many in the world will now have full legal access to enjoy this great cultural resource. It's better than the alternative where most of the older recordings will not be publicly available anywhere in the world.
The Project Gramophone solution to free our recorded musical heritage is in danger of being shut down worldwide if the Recording Industry Association of America (RIAA), which represents the recording companies in the United States, is able to convince the world governments to greatly increase copyright terms on sound recordings and apply them retroactively to those which have already lapsed into the Public Domain. The RIAA has been fully aware for quite some time that the pre-WW2 U.S. sound recordings were already in the Public Domain in many countries, but other than some grumbling has not been very vocal and active on this matter — understandable considering the reasons previously cited.
However, the RIAA has recently become much more concerned and is now actively lobbying many countries to greatly lengthen their copyright terms for sound recordings. The reason is that in three years the earliest Elvis Presley recordings made for Sun Records (now owned by BMG via its acquisition of the RCA Victor catalog) will revert to the Public Domain in countries with the 50-year rule (as noted in the previous section). From the RIAA perspective, this is a whole new ballgame. And year by year, more and more of the lucrative early rock era recordings will likewise become Public Domain; in ten years the early Beatles recordings will join the Public Domain in the 50-year countries.
Because of this fear, not unlike the fear Disney had over "losing" Mickey Mouse to the Public Domain (beginning with the 1928 cartoons "Plane Crazy" and "Steamboat Willie") which led to the Sonny Bono Copyright Term Extension Act in the United States, the RIAA has begun lobbying hard for new international agreements to greatly increase copyright terms worldwide for sound recordings, which it refers to as "harmonization." Interesting details on this are given in the recent articles at Billboard and SiliconValley.Com. A probable example of RIAA's behind-the-scenes lobbying effort is the current draft of the Free Trade Area of the Americas chapter on Intellectual Property Rights, FTAA — an excellent analysis of FTAA is given in IP Justice's White Paper on the FTAA.)
It is unknown how successful the RIAA will be in increasing sound recording copyright terms internationally — the RIAA apparently wants 95-year terms from the year of first public release (with a maximum of 120 years from the year of fixation) to conform with current U.S. copyright law for post-1972 recordings (these terms appear in the current FTAA draft), and it wants the terms to be applied retroactively to recordings which have already passed into the Public Domain in those countries. If the RIAA gets all it wants, then this will keep much of the important pre-WW2 material locked away in the vaults for several more decades, a situation the world community should not accept.
What can you do? If you live in Canada, Australia, New Zealand, or a European Union country, or wherever else most of the pre-WW2 recordings are Public Domain, then donate your time, expertise and maybe even resources to formally establish a Project Gramophone in your country. If you have connections with a charitable Foundation or similar organization (or even a government agency) that would be interested in underwriting or supporting the project, then contact it! (And do join and contribute to the Project Gramophone list.)
Fortunately, many countries are dubious of greatly increased copyright terms on sound recordings for various reasons (as noted in the Billboard and SiliconValley.Com articles). Thus, don't use the threat of future adverse copyright terms for sound recordings as a reason not to help launch a Project Gramophone in your country. In fact, the rise of legal, online Project Gramophone servers may greatly aid in the fight against the proposed RIAA changes by educating and mobilizing large numbers of people worldwide to the cause of keeping the copyright terms for sound recordings in their countries rational and reasonable, and to protect the Public Domain that now exists in their countries.
Even if you do not have any interest in personally helping to organize Project Gramophone in your country, most definitely contact your national government leaders and representatives, forward them this article, and urge them not to give in to the RIAA demands for onerous 95-year, retroactively-applied copyright terms for sound recordings. A reasonable compromise may be acceptable (e.g., 60-year terms) so long as copyright protection is not retroactively applied to recordings which have already passed into the Public Domain in your country. Protect the Public Domain you already have in your country — it is your national treasure!
(Note that if you are interested in establishing a Project Gramophone organization in your country, it is very important to first consult with an experienced and competent intellectual property attorney to understand the specific nuances of sound recording copyright in your country. In addition, even when the sound recordings are themselves Public Domain, copyright may still cover the underlying songs, lyrics, arrangements, etc., the terms of which are almost universally based on the life of the composer/arranger plus 50 or 70 years. Thus, an arrangement may need to be made with the song publisher agents in your country to place the recordings online; the terms of such arrangements may be fixed by statute. Laws in your country may also require making arrangements with mechanical and performance rights agencies even when the sound recordings are themselves Public Domain, although it appears that in many (if not most) countries once a sound recording becomes Public Domain there is no requirement to pay mechanical reproduction and performance rights fees.)
I also call upon all the international media companies to seriously consider a radical proposition: donate or sell the rights and the existing masters of your catalogs of pre-WW2 recordings to a committed, broad-based, independent, international non-profit organization so that organization may properly protect the masters for posterity, produce vinyl test pressings from the masters for distribution to libraries and archives worldwide, and to transfer, digitally restore and put online all the recordings in cooperation with the song publishers. The organization and its servers will reside in a country (or countries) where the sound recordings are legally Public Domain and where the people and the government are seriously committed to preserving the world's musical heritage.
It would not surprise me at all if the current pre-WW2 catalog of recordings is much like an albatross around the neck of the major media companies, especially since the fixed annual costs of archiving and maintaining the still-existing metal masters, and administering the ownership rights of the recordings, probably far surpasses whatever small revenues and profits (if any), and other benefits, the major media companies derive from owning the rights to the older recordings. Thus, donating their collections (or selling them to the non-profit for a reasonable sum) will be good for their bottom line and their stockholders, as well as giving them some much sorely needed positive public relations. Other "perks" are also possible to further benefit the media companies for such a generous act of philanthropy. In addition, this philanthropy may indirectly benefit the recording industry as it lobbies for harmonization of sound recording copyright terms internationally — it will demonstrate to the world their commitment to the Public Domain.
I strongly urge the media companies not to reject this proposal out-of-hand, but to carefully explore it. I firmly believe an objective and comprehensive cost-benefit analysis will demonstrate they will gain much more for their companies and their stockholders, especially in various intangible ways, by giving, rather than by holding, their early recorded sound collections.
Thanks go to David Rothman who helped with the editing of this article, and for putting it up at his TeleRead site. Many thanks also extend to James Linden of Ticluse Teknologi in Canada, who helped in many ways, including the formulation of the Project Gramophone concept, the editing of this article, hosting the current Project Gramophone web site (still under major construction), and for providing general technical advice. And finally, thanks to the many individuals, too many to acknowledge here, who contributed their knowledge and thoughts to the Project Gramophone discussion list, and in private communications, which made this article possible.
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