The sound of silence

By G.F. | SEATTLE

THE sound of Thomas Edison's first recorded words in 1877 are lost, but he said they were, "Mary had a little lamb". Had the cylinder containing that utterance survived, it would remain firmly under copyright protection in America at least until 2067. A quirk of the federal copyright law with regard to recordings means that nearly all music, spoken word, and other aural treats produced before the early 1970s are currently protected until the second half of the 21st century. Sonically speaking, the public domain is a wasteland.

In America, sound recordings have two sets of rights associated with them. One covers the underlying composition, as if it were a literary work. The other governs the audio itself, most notably addressing its reproduction and distribution. The copyright for composition is chartered at the federal level, and is well settled. Anything published prior to 1923—musical, literary, or otherwise—is now in the public domain. Up until the 1980s works lost protection if an owner failed to file a form at the right time with the copyright office, or omitted the crucial copyright statement in the work. (The owner of this right also sets fees and terms for artists to perform their works; all this is handled almost exclusively by a few American organisations: ASCAP, BMI, and SESAC.)

The second sort of rights is fiddlier. Sound recordings made in America before 1972 do not fall under federal protection, being governed instead by state common law. Ensuing rights tend to be perpetual—and anything but uniform, according to Peter Hirtle of Cornell University, who advises the university's libraries on intellectual property. Most states' laws also include the notion, peculiar to modern ears, that whoever possesses the master recordings also holds the right of reproduction. In 1972, an act brought copyright for new sound recordings under federal jurisdiction. For those recorded earlier it set an expiry date of 2047, later extended to 2067. Assuming no further extensions, states will control pre-1972 audio rights until then. In 2067 federal rules will kick in, pushing the works immediately into the public domain.

In Britain, the issue of usage rights for recorded audio was settled in 1911. A term of 50 years was set, counting from when the work was fixed for reproduction—in a wax disc, for instance. In 1958 the 50-year term was retained, but it was now counted from the end of the year in which the recording was put on sale or played publicly for the first time. Many other countries have similar rules. Would it were that simple in America.

The American rules infuriate scholars, archivists, musicians and the conservationists who preserve fragile recordings. They fret that by the time the recordings become available, many will be beyond salvation. Some wax cylinders and discs, metal tape, vinyl records and other formats have already begun disintegrating or are slag. The permission to disseminate material—at least for academic use and licensing—could lead to more money for its conservation. As things stand, some institutions are chary about digitising works for fear of potential liability.

Under the current regime, those who wish to listen to recorded music held exclusively in a particular collection must travel there in person. That is the case even if digital or other copies have been made, unless the rightsholder is found and express permission obtained to use them. As for the originals, institutions are often reluctant to proffer them even in the controlled setting since the physical media risk deteriorating beyond repair if played too frequently.

There has been some improvement. On May 10ththe Library of Congress unveiled the fruits of a deal hashed out with Sony and launched the National Jukebox. The website offers 10,000 recordings released by the Victor Talking Machine Company from 1901 to 1925, before the advent of microphones. (Performances were captured by an audio horn, which caused a stylus to vibrate and etch wiggles directly into wax discs.) The chain of ownership starts with RCA buying Victor in 1929, and Sony ultimately achieving full ownership of all RCA rights in 2009, after 80 years of mergers and rights transfers. These included the obscure trove of Victor audio reproduction copyrights. Those recordings can now be streamed (though not yet downloaded) for free. There is more to come: Sony has already committed to making other material available.

Gene DeAnna, the head of recorded sound at the Library of Congress, says that the jukebox has already notched up over 390,000 visitors, who have so far streamed 825,000 recordings. He thinks Sony's move may prompt others to follow suit. There seems to be little scope for commercial exploitation of old recordings and owners who obstinately refuse access may appear churlish. Mr DeAnna looks forward to the resulting scholarship.

Edison's audio is not to be found on the National Jukebox. An earlier effort at the University of California, Santa Barbara (UCSB), digitised over 8,000 cylinders, mostly from Edison's own recording firm. The school made the contents available online starting in 2005. However, UCSB relies on the ambiguity over who exactly owns the rights to the sound experiments and commercial recordings Edison made until 1928 (he died in 1931). The United States National Park Service purchased Edison's primary estate and main lab, as well as all his papers and collections, in the 1950s, but there is uncertainty about whether it is has also obtained the copyrights.

America's Copyright Office is making some headway on these rights that could have a broader effect. It recently held heated hearings on the recondite topic of federalising pre-1972 recordings and normalising other rules. The Recording Industry Association of America, the music labels' trade body which took part in the proceedings, made it abundantly clear that it remains wary of far-reaching changes. Mr Hirtle explains that is because federalisation could, among other things, award artists a right to terminate grants of copyright to recording companies. That termination right would come 56 years after a contract assigning copyright for those pre-1972 works, which would put rights from 1955 and before at stake. (This option changed to a 35-year period for works created after 1977.)

Ideally, Congress would set in and overhaul the sound-recording copyright rules to make more old material available in the public domain. After all, "the idea of copyright assumes there is an end to it," quips Mr DeAnna.