Screaming Penguin - Source Does Matter

Number of historical recordings extant

Experts believe that the vast majority of recordings commercially issued in the United States—probably more than 90 percent—still exist in some form.4 Often this is in the form of commercial pressings, since in the past, record companies routinely destroyed their older masters, and sometimes even the files that documented what these companies had recorded. However, archives and private collectors have assembled large collections of these recordings, and they serve as the source for many reissues. Relying on a worldwide network of collectors, Europe’s Document Records has issued more than 600 CDs documenting the contents of the book Blues & Gospel Records, 1890–1943, alone.

Many of the discographers whose works were consulted for this study physically examined most of the records they listed or received reports from others who had done so. Rock-era compiler Joel Whitburn claimed to own a copy of every record listed in his huge Top Pop Singles; individuals working in earlier periods commonly derived take numbers5 and label credit from copies examined. This was the case with the author’s Columbia Master Book volume covering 1901–1910. Most likely to have been lost are cylinder recordings made in the 1890s, but even these continue to turn up. Preservation specialist Glenn Sage reported that he has seen approximately 1,200 such cylinder recordings and believes that 8,000 to 10,000 are in existence nationwide. Another expert, Bill Klinger, puts the figure at about 7,000 to 8,000.6 Interestingly, 50 percent of the more-than-600 1890s cylinders that Sage has transferred were made by the Columbia Phonograph Company. If this sample is representative, approximately half of the cylinders from this era are still protected, even though the rights holder, Sony BMG, has retained or reissued almost none of them.

Though many early cylinders are in poor condition, they can still provide future preservation experts with the opportunity to retrieve their sound using technologies yet to be developed. Several advanced technologies for this purpose are in development.7
Percentage of the recordings in this study controlled by someone under current U.S. law and percentage in the public domain

An important provision of the 1976 copyright law is Section 301(c), which provides, for recordings made prior to 1972, that “any rights of remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067.� This means that recordings issued before 1972 will not be covered by federal copyright until 2067. Until that time, they fall under state laws, generally those regarding copyright, property rights, and unfair competition. State laws vary, and there is no known summary of their current coverage of sound recordings. However, these laws are universally interpreted to grant permanent ownership of recordings to the creating entities until such time as federal copyright law takes over in 2067.8

The net effect is that pre-1972 recordings are treated in the United States as protected from the time of their creation, no matter how long ago that may have been, until 2067. At that time, barring a change in the law, all such recordings will become part of the public domain. Inasmuch as the first commercial recordings were made around 1890, this is a de facto term of between 95 and 177 years, depending on the date the recording was made. All recordings included in this study were made before 1972 and therefore fall into this category.

Despite bankruptcies, abandonment, and long-dead record labels, under current U.S. law an overwhelming majority of historic recordings—in this study 84 percent—are still owned by someone. This is true even for the earliest periods, with more than 60 percent protected for every period after 1895. The figure exceeds 90 percent after the 1930s. It is also true for every genre of music studied. Most of America’s recorded musical heritage of the last 110 years, even recordings made in the nineteenth century, is protected by state and common law until 2067.

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Evidence uncovered in this analysis suggests that a significant portion of historic recordings is not easily accessible to scholars, students, and the general public for noncommercial purposes. There are many reasons for this, but the primary one appears to be a convergence of two factors. The first is that the physical barriers created by recording technologies change often and have rendered most such recordings accessible only through obsolescent technologies usually found only in special institutions. Second, copyright law allows only rights holders to make these recordings accessible in current technologies, yet the rights holders appear to have few real-world commercial incentives to reissue many of their most significant recordings. The law has severely reduced the possibility of such recordings entering into the public domain, at least until 2067.

While there is no reason to assume that the law intended to create or sustain such an imbalance between the private and public domains, the evidence suggests that it has, in fact, created such an imbalance. This study indicates that there is an active and hardy network of foreign and small domestic companies, associations, and individuals willing to make historic recordings available; indeed, some do this in spite of laws that force them underground or overseas.

Council on Library Information Resources via Boing Boing

So, ahh. When the people responsible for copyright are talking about how retarded it is, what does that tell you?