The Fight for Copyright Reform and What It Means for You Tim Brooks ARSC Conference May 2009

What If --- ? 100s of private CD reissues of pre-1940 recordings legally available 100s of private CD reissues of pre-1940 recordings legally available

What If --- ? 100s of private CD reissues of pre-1940 recordings legally available 100s of private CD reissues of pre-1940 recordings legally available 1000s of websites with free streaming and downloads of historical recordings 1000s of websites with free streaming and downloads of historical recordings

Foreign Archival Websites

What If --- ? 100s of private CD reissues of pre-1940 recordings legally available 100s of private CD reissues of pre-1940 recordings legally available 1000s of websites with free streaming and downloads of historical recordings 1000s of websites with free streaming and downloads of historical recordings Archives free to preserve and circulate copies Archives free to preserve and circulate copies Clear rules about what is under copyright, how to legally use orphan works Clear rules about what is under copyright, how to legally use orphan works Copyrighted but long out-of-print recordings could be used for a reasonable fee Copyrighted but long out-of-print recordings could be used for a reasonable fee

What If…. Actually, most of this IS true… everywhere except in America Actually, most of this IS true… everywhere except in America Every country except the U.S.A. now has historical recordings in the public domain Every country except the U.S.A. now has historical recordings in the public domain  Benefits the public  Causes no discernable harm to rights holders So why not in the U.S.A.? So why not in the U.S.A.?

The State “Loophole” Until 1976 recordings not under federal law, little U.S. experience Until 1976 recordings not under federal law, little U.S. experience Justice Dept. thought pre-1972 recording might fall into p.d. upon passage of law; sent memo to House-Senate conference committee Justice Dept. thought pre-1972 recording might fall into p.d. upon passage of law; sent memo to House-Senate conference committee “Technical amendment” added by conference committee leaving pre-1972s under state law for 75 years. No public debate. “Technical amendment” added by conference committee leaving pre-1972s under state law for 75 years. No public debate. A “thundering blunder” by the DOJ? A “thundering blunder” by the DOJ?

The Next 30 Years Major overhaul of copyright in 1990s. Major overhaul of copyright in 1990s. No one paid attention to Section 301(c) – the state exception. No one paid attention to Section 301(c) – the state exception. A few warnings, but they went unheeded. A few warnings, but they went unheeded. NO ADVOCATE IN WASHINGTON FOR HISTORICAL RECORDINGS. NO ADVOCATE IN WASHINGTON FOR HISTORICAL RECORDINGS. ARSC did nothing. ARSC did nothing.

Problem: State Law for Pre-1972 Recordings Brought into stark relief by Capitol v. Naxos (NY, 2005) Brought into stark relief by Capitol v. Naxos (NY, 2005)  Sweeping, one-sided decision “Common law.” “Common law.”  Perpetual and absolute  No public domain  Few provisions for preservation or fair use Much preservation work technically illegal. Much preservation work technically illegal. Few lawsuits – but don’t have to be. Few lawsuits – but don’t have to be.  Climate of fear  Many restrictions on access  “Dark archives”

Result: Availability from Rights Holders (% Protected Available by Time Period)

What Do We Do??

What Do We Do? – Timeline 2005: Position statement by ARSC: “Several provisions of U.S. copyright law impede the effective preservation of historic recordings and unduly restrict public access to those recordings.” 2005: Position statement by ARSC: “Several provisions of U.S. copyright law impede the effective preservation of historic recordings and unduly restrict public access to those recordings.” : Copyright & Fair Use Committee develops specific recommendations : Copyright & Fair Use Committee develops specific recommendations. 2007: Researched tax regulations re: non-profits. 2007: Researched tax regulations re: non-profits. 2007: Interview with Rep. Boucher. 2007: Interview with Rep. Boucher.

ARSC Five Copyright Recommendations 1. Place pre-’72 recordings under single, understandable national law (repeal sec 301c). 2. Harmonize federal term with other countries (i.e., 50 to 75 years). 3. Legalize use of “orphan” recordings. 4. Permit use of “abandoned” recordings with appropriate compensation to copyright holder. 5. Permit “best practices” digital preservation.

Timeline ARSC hired representative in D.C. ARSC hired representative in D.C.  Malcolm Grace, Wexler & Walker Met with staff for 24 key members of Congress. Met with staff for 24 key members of Congress. Met with Register of Copyright Marybeth Peters. Met with Register of Copyright Marybeth Peters. Met with RIAA. Met with RIAA. Obtained support from six organizations: ALA, AMIA, IAJRC, MLA, SAM, SAA (total 70,000+ members). Obtained support from six organizations: ALA, AMIA, IAJRC, MLA, SAM, SAA (total 70,000+ members). Prepared OW amendment directing Copyright Office to study repeal of 301(c). Lined up Democrat and Republican co-sponsors. Prepared OW amendment directing Copyright Office to study repeal of 301(c). Lined up Democrat and Republican co-sponsors.

Timeline Generous support from ARSC members. Generous support from ARSC members. Formed HRCAP coalition with MLA, SAM. Formed HRCAP coalition with MLA, SAM.  Also helps with funding. Website: Website: But Orphan Works Bill (and amendment) stalled, had to explore other options. But Orphan Works Bill (and amendment) stalled, had to explore other options.

A Major Breakthrough! March 11, 2009: Pres. Obama signs the Omnibus Appropriations Act. March 11, 2009: Pres. Obama signs the Omnibus Appropriations Act. Includes directive that Copyright Office study bringing pre-1972 recordings under federal law. Includes directive that Copyright Office study bringing pre-1972 recordings under federal law.  Effect on preservation  Effect on public access  Economic impact on rights holders Used ARSC language. Used ARSC language. Deeply grateful to Appropriations Committee. Deeply grateful to Appropriations Committee.

What to Expect Next Copyright Office must take public comment, report in two years. Copyright Office must take public comment, report in two years. For first time this will shed light on a dark corner of copyright law. For first time this will shed light on a dark corner of copyright law. Opens the door for more to come. Opens the door for more to come. No guarantees though. No guarantees though.  There will be pushback.  We must make our case!

What to Expect Next Inertia. Inertia. Other agendas. Other agendas. Fear. Fear. There has been fierce, sometimes irrational opposition to Orphan Works. There has been fierce, sometimes irrational opposition to Orphan Works.

The Battle over Orphan Works Despite layers of protection for creative artists, and three years of negotiation… Despite layers of protection for creative artists, and three years of negotiation… Website: A MILLION PEOPLE AGAINST THE ORPHAN WORKS BILL!!! Website: A MILLION PEOPLE AGAINST THE ORPHAN WORKS BILL!!! “A threat to the intellectual property rights, privacy and free speech of all Americans” “A threat to the intellectual property rights, privacy and free speech of all Americans” “Unalienable right” to have copyright “for eternity” “Unalienable right” to have copyright “for eternity” “License to steal!” “License to steal!” Coalition of music groups loudly oppose. Coalition of music groups loudly oppose.

- Nick Anderson, Houston Chronicle cartoonist, 5/14/08

But… The RIAA is willing to talk. The RIAA is willing to talk.

What We’ve Learned No one knew! No one knew! Much “soft” congressional support. Much “soft” congressional support. Perceived as non-partisan, for the public good, not harmful to stakeholders. We’re the “white hats.” Perceived as non-partisan, for the public good, not harmful to stakeholders. We’re the “white hats.” House is where IP legislation originates. House is where IP legislation originates. Chairmen are extremely powerful. Chairmen are extremely powerful. We must “Talk to stakeholders.” We must “Talk to stakeholders.” There may be a “fear campaign” against it. There may be a “fear campaign” against it. Will take time, persistence. Will take time, persistence. Will take $$$. Will take $$$. Change is possible. Change is possible.

Thank You Laws are being rewritten. Laws are being rewritten. The door has been kicked ajar. The door has been kicked ajar. Copyright Office study huge breakthrough. Copyright Office study huge breakthrough. We can make a difference. We can make a difference.