Larry Lessig takes a swipe at the Copyright Office for suggesting reform of 17 USC 115 if by reform you mean "eliminate" (The Register Wants Reform). More on the important proposal here: Forget Grokster? A Recording Industry Bombshell from the Copyright Office.
Lessig cites a discussion of the provision in 1967 House Judiciary Report:
[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.
Larry writes:
Apparently the Registrer believes performers no longer "need unhampered access to musical material on nondiscriminatory terms." What progress.
I don't necessarily see the issue this way. While I'm still haven't come to any conclusions about the proposed reforms, I remain a critic of 17 USC 115 and would be happy to see it eliminated on general principles. And it's not because I'm against unhampered access to music. I'm all in favor. The question is how best to achieve this.
I believe that it would ultimately be easier to achieve through proper unification of rights and a voluntary collective license. I believe a voluntary collective license will be easier to acheive without the artificial split in rights created by Section 115. Heck, mandatory collective licensing would probably be easier to implement without 115.
It would simplify licensing issues for new technologies immensely. Under 115, unhampered access for artists comes at the expense of further hampering developers and users of new technologies, such as webcasting and, now, podcasting. One might frame the argument in favor of 115 reform as not one of hampering artists, but unhampering technological innovators.
Arguably, 115 has actually been harmful to creators on a whole. Not only has technological innovation suffered, but by taking the songwriters essentially out of the equation, the record labels have comparatively greater power as against the interests of the performing artists.
And, maybe, more musicians (and record labels) might favor less copyright if they didn't have such easy access to making covers. They might be a bit more sympathetic to other artists who don't have similar privileges and might want to clear rights for snippets of audio in a documentary, for example. I mean, why should record labels care about copyright reform? They've got their mandatory license and complete copyright control over the rest. They've got the best of both worlds. They get to copy what they want and stop people from copying their stuff.
There are a number of other benefits that would flow from elimination of 115. Copyright would be simpler, for one. We're all creators and publishers today. We shouldn't all have to be copyright lawyers as well. "You see, Suzy, there is a composition right and a recording right ..."
And, hey, I'll say it again. 17 USC 106(1), the right of reproduction, should just go away. Copying is such a 20th century concept. Copyright should be about distribution of information, not "copies." Section 115 essentially embeds the concept of "copies" in copyright. So we have these crazy arguments about whether a dual-pressed CDs, with two versions of a sound recording in two different formats counts as two "copies" or not. Copies, schmopies. Let's talk distribution, instead. Getting rid of 115 helps that, just a bit.
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. Tom Poe on June 28, 2005 07:47 PM writes...
I would like to share a scenario unfolding here. Here's the activity log thus far:
1] Hello Tom Poe
Question History:
Patron: Your site appears to offer 30 second samples of music. If I visit the library, personally, will I find that I can only listen to 30 second samples?
Thanks for your time and consideration. I look forward to hearing from you.
Librarian 2: This is in response to your questions about 30 second samples of music available in online exhibits. Your inquiry was forwarded to the Recorded Sound Reference Center by the Music Division.
Because you sent your question directly to the Music Division, I assume that you are referring to the recordings in the "I hear America singing," online exhibit. Due to copyright laws, songs from the twentieth century are not represented by very many items on the Web site. While every effort has been made to obtain permission to use these songs or portions of these songs, in some cases this has not been possible. Therefore, there may be no recordings or paper items to illustrate those songs, although there will still be text on the history of these songs.
In several cases, the rights’ owners of the materials have given permission to only use a portion of the material online. In those instances, only 30 seconds is used from a sound recording, and one or two pages from print or manuscript materials.
Complete recordings are used in the online exhibits in the American Memory section of the Library's web site. Online exhibits with complete recordings can be accessed at .
When researchers come to the Recorded Sound Reference Center they can hear the entire recording. Listening facilities, which are available without charge, are provided for those doing research of a specific nature, leading toward a publicly available work such as a publication, thesis or dissertation, radio/film/television production, or public performance. We regret that the facilities may not be used for purely personal study or appreciation.
You can access additional information about the recorded sound collection listening policy at .
Please contact me if you have additional questions.
Sincerely,
Janet W. McKee
Reference Librarian
Recorded Sound Reference Center
Telephone: (202) 707-7833
To check the status or the history of your library question(s), go to: http://questionpoint.org/crs/servlet/org.oclc.ask.PatronDirect?&language=1&email=tompoe@fiai.net&qid=895539
Please take a moment to fill out a survey at: http://questionpoint.org/crs/servlet/org.oclc.ask.PatronSurveyForm?&language=1&type=ask&qid=895539
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2] So, with that, we set out to see how the system works:
On 28 Jun 2005, tom poe wrote:
> Hello: Are there any recordings in your collections that are identified
> as belonging to our country's public domain? If so, could you identify
> those songs which may be linked from our web site for listeners to enjoy
> and share with others?
> Respectfully,
> Tom Poe
> Charles City, Iowa, USA
"Public domain" generally refers to materials that were once under
copyright and on which copyright has since lapsed. So compositions that
were first published before 1923 are public domain.
But copyright doesn't deal with performer rights. Copyright applies to
the compositions themselves, typically as set down in sheet music or other
kinds of scores. Sound recordings themselves were not copyrightable until
around 1972.
So the persons who were recorded between 1890 and the early 1970s never
had an opportunity to copyright their artistic creations as long as those
were in audio format only. At this point, it becomes a matter of ethics
more than of legalities.
For these reasons, we require good-faith attempts to contact each
performer or performer's estate before any of the approximately 100,000
hours of unpublished recordings here can be disseminated. This work has
been done, for example, for each on-line presentation on our website, as
well as for each commercial or published release of recordings from our
collections.
So you're definitely welcome to create a link on your web site to our
websites: (There
are over 300 hours of material, both music and spoken word, in these
collections.) If you want to take excerpts from any of those collections,
however, please be sure to retain all of the necessary credit information:
performer's name, song title, call number, collection name, American
Folklife Center, Library of Congress.
But if you would like to explore additional on-line publication, you will
need to select those recordings and then do the good-faith searches.
We can talk you through that process.
If you have additional questions about the procedures, please let me know.
Judith Gray
Reference Specialist
American Folklife Center
Library of Congress
Washington DC 20540-4610
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And, we move to focus on the public domain issue:
3]
We are not allowed to choose items for people in that way. You'll need
to browse the on-line collections and see which cuts may work. Again,
_all_ of the songs that are on-line from the Folklife Center are OK as
far as copyright is concerned, so all you need to deal with are any
performer rights that may still apply. So once you've chosen potential
items, please send us the list (if you use the AFS call numbers and
provide the names of the performers, that will expedite our searches as
well as make sure that we're all dealing with the same songs), and we'll
then check our correspondence files to see if there's someone you'll need
to contact before you can disseminate the materials further. (The
relatively-few performers or estates that we've been able to contact have
given the Library of Congress permission to use those recordings, but they
haven't given up their rights for all other users.)
Again, all of the actual audio is on-line via the connections from the
list of our on-line collections:
When you go from that page to the homepages for each collection, you'll be
able to search by performer or titles, etc. When you click on those
links, you'll come to pages where you can select a listening format (mp3
or RealAudio or wav files), depending on the speed of your browser, etc.
Our on-line music collections include WPA recordings from various ethnic
groups in Florida, from migrant camps in California, from southern states
visited by John and Ruby Lomax in 1939, from a West Virginia fiddler, from
Georgia festivals in the 1930s and 1940s, from Omaha Indian people in the
1890s and 1980s, from Spanish-speaking people in northern New Mexico and
southern Colorado, etc. There will be many options for you to choose
from, depending on the audience you're serving. And if you supply the
URL for the various collection homepages, people will be able to get to
those recordings and more. (Please note that the structure of all of the
Library's American Memory collections means that the various songs do NOT
have permanent URLs: you can't copy a link and have the same thing will
appear each time. Instead you have to supply instructions on searching
for the song title or performer from the homepage of the collection.)
Let us know if you have additional questions about the procedures or those
idiosyncracies of the American Memory pages, etc.
Judith Gray
Reference Specialist
American Folklife Center
Library of Congress
Washington DC 20540-4610
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We know that the material is public domain, for copyright purposes. We also know that the material is "cover" of public domain works. We also know that there is some resistance to my suggestion that the songs be offered on the Internet, with links to the Library of Congress site, and specifically, to the song file.
As the Library of Congress' system for those seeking to provide additional online publication of the songs hosted by them gets fleshed out, it just might shed some light on what our Library of Congress says, and what it does. Keep in mind, they used taxpayer dollars to obtain some kind of arrangement for the tunes on their site. Was that arrangement made with the best interests of the public in mind, or was that arrangement made with the idea of generating revenues for the Library of Congress?
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