Frequently Asked Questions
What do you mean by “historical recordings”?
How old do they have to be?
There is no fixed definition, but recording history divides itself
neatly into technological periods (cylinder recordings from about
1890-1910, 78s from c.1900-1950s, microgroove from 1950s-1980s, CDs
from 1980s-today, etc.) and most historians would consider anything
from the 78 rpm era or earlier to be “historical.” Some
LPs and 45s could be considered historical as well, however we do
not suggest that recordings less than 50 years old should be in the
public domain. Exactly how long the copyright term should be is a
matter for negotiation.
Why does the U.S. have such an unusual copyright system,
with pre-1972 recordings under state control and no public domain?
Prior to the 1976 Copyright Act sound recordings were not covered
by federal law. A provision was inserted into the 1976 act at the
last minute, while the bill was in House-Senate conference committee,
specifying that recordings made prior to 1972 would remain under state
law until 2047 (this has since been extended to 2067). After that
they would be brought under federal law, which unlike state law provides
for a public domain. The reason given at the time was to ensure that
pre-1972 recordings did not immediately fall into the public domain
upon passage of the bill. The provision, which was arguably “overkill,”
was never debated.
Can’t people just buy used copies of old recordings,
as they do for out-of-print books?
Of course, but unlike books, records are technology-dependent.
Unless you have the correct playback equipment like a 78 rpm turntable
or an antique Edison cylinder phonograph, you won’t be able
to play them. Moreover most early recording formats are fragile,
good-condition copies can be very hard to find, and they aren’t
lent by libraries. Finally, why should there be no public domain
for recordings, as there is for books and for every other form of
Aren’t your proposals a threat to the recording industry,
which is already struggling?
Actually these proposals should help the industry. Its income
from historical reissues is minimal (which is why it releases so few
of them) so there’s really nothing to lose. However bringing
pre-1972 recordings under federal law would open the door to federally-granted
revenue streams such as internet streaming (and potentially terrestrial
performance rights), which could be considerable for 1950s and 1960s
recordings. The record industry should be focused on the future not
on the past; let the archivists and historians take care of that.
What should performing artists think about your proposals?
If they want their work heard, they should be in favor of them.
What good does it do to make a recording if the record company won’t
keep in release? The American Federation of Musicians (AFM) and the
American Federation of Television and Radio Artists (AFTRA) have both
made the same recommendation that HRCAP makes in regard to out-of-print
recordings, namely “permit and encourage the reissue by third
parties of ‘abandoned’ recordings, those that remain out
of print for extended periods, with appropriate compensation to the
copyright owners” (i.e., compulsory licensing). Archivists and
artists have a lot in common, they both want recordings to be available.
Nobody benefits from locked-up recordings, whether they are new or
Who gets the revenue from historical recordings when they
The vast majority aren’t reissued (as noted elsewhere),
but when they are it’s usually the record company, not the artists.
Most sidemen and even principal artists during the early days of the
industry did not receive royalties, only a fixed session fee. Have
you ever seen a recording contract? It’s extremely rare for
a living artist to still be collecting royalties from a recording
that is 60 or 70 years old, and that rare case should not be an excuse
to lock away everybody else’s recordings. Of course with a public
domain artists or their descendents would be free to release the records
themselves if they wished. So would the record company; it just wouldn’t
have a government-enforced monopoly.
Aren’t other countries trying to lengthen their copyright
terms for recordings, and bring more early recordings under copyright?
The international record companies are fighting to extend copyright
everywhere, to increase their monopoly control for up to 95 years—even
though in most cases they won’t use it. They suffered a severe
setback when the U.K. refused to extend its 50-year term in 2006.
Most scholars and economists oppose term extension, and extensive
studies have shown that it will cost the public money while not
benefiting musicians, however politicians have largely ignored these
studies and backed the companies. The companies next tried to push through
a 95 year copyright term throughout the European Union, but again there was a
furious backlash. Eventually a compromise was reached in which the term was
extended from 50 to 70 years, but with significant conditions. The companies get
the extra 20 years only for recordings that they keep in print ("use it or lose it"),
there is no retroactivity (everything made prior to the early 1960s stays in the
public domain), and they have to start paying backing musicians, not just the "stars,"
no matter what the original contracts said. Separately, the European Union has also
enacted legislation allowing the use of "orphan works." The Europeans realize how badly
the U.S. model has turned out and that extending absolute monopoly control for a century
does not make sense.
Can’t record companies make historical recordings available
cheaply simply by selling them online?
No. Many companies destroyed their early master recordings, so
copies in excellent (“mint”) condition must be found and
purchased on the open market (difficult and expensive), they must
be individually converted to digital files by transfer experts (expensive),
and then mounted on a continuously-maintained website. This is economically
unfeasible for large numbers of recordings.
Why should the general public care about the length of recording
Copyright is a government-enforced monopoly. Under a monopoly
prices are always higher and scarcity can be enforced. That is why
patents only last for 20 years; if they lasted longer we would be
paying a fortune for aspirin!
Could the problem of unavailability be solved by a “use-it-or-lose-it”
system, whereby the record companies could keep their copyrights but
only if they made the recordings available at a reasonable price?
Yes, within reason. (At some point there should be a public domain
as the Constitution mandates, and as there is for every other type
of intellectual property.) This is what they now have in Europe.
Copyright owners are very sensitive about access, so why
not concentrate on preservation and forget about access?
Preservation and access are inextricably linked, for several
reasons. As a practical matter it is extremely difficult to obtain
funding for preservation when the results cannot be made available
to the public; donors are simply not interested when the results of
their generosity cannot be shared. This is a phenomenon known as “dark
archives.” Also, archivists will tell you that the best preservation
is duplication. The more perfect copies exist, in many hands, the
better the chance that the sound will survive. Finally, why should
our generation and several more to come be denied access to our cultural
history, to no one’s benefit?
Is this just about money?
It’s primarily about the right of the public to have access
to its cultural heritage. However copyright can also be used for purposes
of censorship. Under copyright law no reason need be given to withhold
a work: the right is effectively absolute. Originally this was intended
to permit a creator to control the use of his or her own work, but
in a world where most historical copyrights are held by corporations
or other third parties it gives them that absolute power. There are
many examples of copyright being used to suppress works for non-economic
reasons, for example modern corporations afraid that a historical
work might offend someone (e.g. Disney withholding the Academy Award-winning
Song of the South) or heirs who wish to enforce their own social views
(e.g. the Margaret Mitchell estate attempting to suppress publication
of a novel portraying Gone with the Wind from the slaves’ point
Is HRCAP a “PAC” (political action committee)?
No. A political action committee supports political candidates.
HRCAP is non-partisan. It does not back candidates or take sides
in elections. It will work with whoever is elected to obtain laws
that help preserve and make accessible our audio heritage.
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