is protected in the U.S. for the full term of protection it would have had if published here as a book or image or other work comprising protectable subject matter under federal law—95 years from the date of publication. The URAA “restored” the foreign work’s copyright in the United States.

Here are two examples that illustrate how this works: If a composition were created in 1920 and performed and recorded in London in 1935, the recording would be protected by U.K. law (Copyright Act of 1956) for 50 years from the end of the year in which it was first published, that is, until the end of 1985. So, on January 1, 1996, when URAA went into effect in the U.S., that recording was in the public domain in the U.K. and would not be eligible for restoration in the U.S.

Another composition created in 1920 and recorded in London in 1947 would qualify for restoration because the recording would still have been under U.K. protection on January 1, 1996 when URAA went into effect. It would be protected for 95 years from its date of first publication, or until the end of 2042, even though in the U.K., it would have become public domain in 1997.

A pre-1972 foreign work that does not qualify for restoration might possibly be protected by state common law in the U.S., but courts should be reluctant to use state law to protect a work whose copyright has expired. See, for example, Capitol Records, Inc. v. Naxos of America, Inc., 2003 WL 21032009 (S.D.N.Y.) and a recent Supreme Court case in which the Court came down strongly against the use of trademark law to protect a copyrighted work in the public domain, Dastar Corp. v. Twentieth Century Fox Film Corp., 123 S.Ct. 2041 (June 2, 2003).

The URAA was challenged as unconstitutional in Golan v. Ashcroft; the case was stayed pending a decision in another case that dealt with an overlapping issue (Eldred v. Ashcroft, 123 S.Ct. 769 (2003)). Eldred was decided January 15, 2003; however, there has been no activity on Golan since that date.

Composition Copyrights. A further complication results from the fact that the composition embodied on a recording is itself protected by copyright, so in some cases, even if a recording is in the public domain, the underlying composition may not be, and vice versa.

THE PUBLIC DOMAIN

So, what may we conclude is in the public domain? Compositions published in 1922 or earlier and performed and recorded (or, in some cases, released) in foreign countries on a date that would result in their being in the public domain on January 1, 1996, in the source country (i.e., during or earlier than 1945 for countries that protect sound recordings for 50 years) are in the public domain, and we should be able to do with them as we wish and permit our patrons to do the same. There may be some question about possible state law claims for unfair competition, but as the Naxos and Dastar cases suggest, other laws should not be stretched to make the good faith use of public domain materials actionable.

U.S. recordings of public domain compositions (i.e., those published during or before 1922) fixed in a tangible medium before 1972 are protected by state laws, but as noted, state law causes of action center on unfair competition for the most part. That is unlikely to affect archival and research activities. Patrons who would like to commercially exploit such recordings, however, would be well advised to obtain permission from the owners.

There is one other category of works that may be in the public domain: works whose copyrights have been abandoned or waived. Before 1989, when copyright notices were required to claim federal protection, failure to affix the proper notice for publication resulted in the works becoming public domain. U.S. recordings published between 1972 and 1989 may be in the public domain if they were published or otherwise widely distributed without the proper notice. Also, works published between 1923 and 1964 had to be renewed at the end of their 28-year terms. If the copyright owners failed to renew the copyrights, those works would now be in the public domain. By some estimates, as many as 95% of copyright owners did not renew their copyrights.

OUR ARCHIVAL RIGHTS UNDER THE COPYRIGHT ACT

Section 108. Libraries have rights to archive and distribute works that are protected by the law, but when we wish to make and distribute digital archival copies, the rights do not extend much beyond the walls of the physical structures that hold our collections.

Sections 108 (b) and (c) of the Copyright Act provide our basic authority to archive and distribute works. Section 108 (b) applies to unpublished works and section 108 (c) applies to published works. The main differences between the two sections relate to the purposes for which we may make copies and the circumstances that must exist to justify making them.

We may copy unpublished works for preservation and security or for deposit for research use in another public or research library if we currently possess the work in our library. We may copy published works only to replace them if they are damaged, deteriorating, lost, or stolen, or if their format has become obsolete, and only after we have determined after reasonable effort that we cannot obtain an unused replacement at a fair price. One crippling condition applies to both types of works: digital copies cannot be made available to the public outside the premises of the library.

Section 108 (h) provides libraries and archives with special rights during the last 20 years of a work’s copyright term. If a published work is not being commercially exploited, a copy cannot be obtained at a reasonable price, or the copyright owner has not notified the Copyright Office that the work is being commercially exploited or copies are available at reasonable prices, the library may make digital copies for preservation, perform them publicly, and distribute them to the public for scholarship or research.

The language of 108 (h) is very generous, giving libraries rights to copy, perform, display, and distribute publicly even digital copies of published works in their last 20 years of protection. However, section 108 (i) says that the rights of reproduction and distribution contained in 108 do not apply to musical works except for preservation. This creates a conflict: 108 (h) says we can copy, distribute, display, and perform published works publicly, and music is clearly “performed,” but 108 (i) says that 108 (h) does not apply to music (by failing to include 108 (h) in its exceptions). Frankly, I think this is just sloppy drafting. Even assuming it does apply, section 108 only covers published compositions in their last 20 years of protection and U.S. recordings published before 1972 that are not protected by federal copyright law. So, libraries can (arguably) archive digitally and distribute publicly for scholarship and research pre-1972 U.S. recordings of compositions that were published between 1923 and 1927, inclusive. Next year, the eligible dates will be from 1923 through 1928, and so on, each year adding another year’s worth of works to the list.

Notice how the beginning date of 1923 stays the same; this results from the addition in 1998 of an additional 20 years of protection to all works then under copyright (the Sonny Bono Copyright Term Extension Act). Works published in 1923 that would have gone into the public domain in 1998 did not lose their protection, and for the following 19 years, no works will enter the public domain in the U.S. Thus, the next time a U.S. work will enter the public domain will be at the end of the year 2018, when protection for the works published in 1923 will finally expire—unless, of course, Congress passes another extension, which the Supreme Court, in Eldred v. Ashcroft cited above, has indicated it is free to do.

The only foreign restored works to which this “last 20 year” provision would apply would be those from countries, if any, whose laws protected recordings for 68 years or longer in 1996. A recording that was published in 1928 in a country with a 68-year term would still have been protected in 1996 in the source country and would have then been eligible for restoration. The restored term of protection in the U.S. would end in (28 + 95 =) 2023. Such a work would be in its last 20 years starting in 2003. Next year, works published in 1929 in that country would enter their last 20 years of protection.

I am not sure that there are countries that protect recordings for 68 years or longer, however, because Article 18 of the Berne Convention requires that member countries provide a 50-year term of protection to pre-existing works originating in another WTO member country if those works have not already enjoyed a full term of protection in both countries. So the norm is 50-year terms, not 68 or 70-year terms. A work from such a 50-year term country would have to have been published no earlier than 1946 to be still under protection on January 1, 1996 when URAA went into effect. A work published in 1946 would enjoy a 95-year term (46 + 95 = 2041) in the U.S. Its last 20 years of protection will not begin until 2021.

Because recordings embody at least two copyrights, the composition copyright and the recording copyright, those protected by U.S. federal law (foreign restored works and U.S. recordings published after 1972) would arguably require that both copyrights be in their last 20 years to qualify for digital distribution pursuant to section 108 (h). This point has never been raised, to my knowledge, so there is no legal guidance.

Fair Use and Other Exemptions. In addition to libraries’ rights to archive works, libraries enjoy fair use rights as well. Section 108 specifically states that nothing in that section affects the rights of fair use, so it is reasonable to assume that fair uses may be made even of digital archival materials that would otherwise be restricted to the premises. For example, digitized archival materials may be put on electronic reserves, incorporated into class projects by faculty and students, and performed in the classroom and in distance education in accordance with fair use.

PROMOTING OUR PATRONS' USES

Generally. Although the law gives us reasonable rights to create archives, what we can do with them, and more particularly, what our patrons can do with them, is tightly constrained by copyright. In particular, the restriction to building-only use for digital archival copies of analog works tremendously limits the research value of digital archives, to say nothing of their value to the public. We are fast approaching a time when for many people, what you can’t find on Google does not exist.

This unhappy circumstance suggests first that we should proactively manage our collections and copyrights to facilitate patrons’ uses. Even though we may not be authorized to distribute a work digitally, we can make use of public Web sites as well as the more typical proprietary indexing and finding aids to make our holdings known to the public. Without being overly aggressive, we certainly can try to negotiate the widest scope of rights in materials we acquire from a rights holder, most importantly, the right to provide digital access to researchers at a minimum, and ideally, to the public. We can update our acquisition forms to encourage broad grants of rights to access and use. We should revisit collection restrictions periodically to encourage that they be lifted. We should not only obtain, but try to maintain accurate contact information for copyright owners when we acquire materials without rights so that we can facilitate the permissions process; alternatively, we might maintain specialized resources to help patrons locate and contact copyright owners. We may even try to acquire more general rights from a rights holder in connection with a specific patron request. We might create materials that can be used to educate researchers about the issues of rights when they are involved in the creation of recordings and forms they can use to clear rights expeditiously. Anthony Seeger speaks more extensively to these issues in “Rights Management—Intellectual Property and Audiovisual Archives and Collections” at <www.clir.org/pubs/reports/pub96/rights.html>.

Lobbying for Changes in the Law to Promote Access. Ultimately, we must bring the issue of greater access to digital archives to Congress. The changes made in section 108 in 1998 were intended to address serious problems—the complete lack of a digital archival right and the effect on research and scholarship of a new 20-year extension of the copyright term—but they addressed these problems in a way that only opened the door a crack. Copyright owners’ fears that wide access to digital copies in libraries would undermine sales of the owners’ works prevented adoption of any but the most restrictive provisions. But today, the National Recording Preservation Board has a mandate from Congress to study laws that must be changed to make preserved recordings available digitally, 2 USC 1724 (b)(4). Sections 108 (b) and (c) must be at the top of their list. If they are not, the board needs to hear from librarians and archivists about the need for changes in this law.

SUMMARY

In response to a request from Ann Blonston, via e-mail before the conference, I offer as a summary this checklist of procedures to assess the extent of the rights you have to digitize the audio recordings in your collections and make them available to researchers or the public: