Written by: Members of the Music Library Association’s Legislation Committee

Ver: November 2014

Providing long-term access to scholarly and cultural materials have long been the vital duties of music librarians. Music librarians have embraced new digital technologies and have endeavored to provide access of digital content to their patrons through
databases and other subscription services. A major challenge to the mission of music libraries and collections has emerged. This challenge takes the form of recordings which are made available only through end-user license agreements that severely restrict the terms of use of online content. These licenses prevent music libraries and collections from carrying out their core functions by legally restricting storage and distribution. The long-term effects faced by the scholarly and creative communities should not be understated: potential loss of vast amounts of musical knowledge and culture is at stake. This document will summarize, and propose several ways in which the Music Library Association might move forward to address this very serious problem.

The Problem:

The increasingly digital nature of the creative and scientific landscape brings with it an increased reliance by copyright holders on providing licensed, rather than purchased content. In most cases, especially in the realm of music sound recordings, the material is only made available under licensing terms that are more restrictive than current copyright law. This severely obstructs or eliminates traditional and legal library uses. Where the online-only distributed content is alternately made available in some physical and purchasable form due to the protections offered to libraries by the First Sale Doctrine.^[1] However, when licenses form the only way in which the works are made available, music librarians are unable to continue to collect the works that their patrons may require. When music librarians cannot legally make their selections from the totality of the
available works, the important role that they play in society is severely hobbled.

In many cases, online-only-distributed sound recordings cannot be legally acquired by music libraries. Many license agreements are available to end users only, and libraries are not generally understood to be end users.^[2] License
agreements frequently override the important exceptions built into the copyright law to balance the rights of users and right holders. In particular, the lack of ownership renders moot the first sale and fair use doctrines.^[3] Furthermore, there is, in principle, no time limit to the agreements, meaning that increasing use of end-user license agreements (EULA) models to control content undoes the “limited times” language regarding intellectual property in the Constitution.^[4]

Though the problem is limited in scope now, there are already examples of very important works and performances—those that would normally be collected by music libraries—which have been excluded from their collections due to the terms of these license agreements. The Music Library Association is concerned that the music industry is likely to move increasingly toward licenses as the dominant distribution model. Taken to the limit, a world where all works are made available only through such regimes would be disastrous for the research and creative community.

Where works are made available through subscription services, their availability is subject to ongoing negotiations between the services and the rights holders, with the result that content can and will disappear from those services unpredictably. Unlike those services, the content of music library collections is driven by user need, rather than commercial considerations, and in many cases, such need is expressed years or decades after publication of the work. Subscription and download services that license content are not in the business of preserving works, and have no financial incentive to do so.^[5] Music libraries, on the other hand, are optimally situated to preserve online-only distributed sound recordings so that future generations of users may still be able to listen to them.

Music libraries’ sound recording collections have benefited composers, performers, and scholars for generations. Over the course of the twentieth century and into the twenty-first century, a shift in focus has taken place in what music librarians and scholars have viewed as primary resources for research. In the past, scores were the definitive primary resource. Now, performances of musical works, as embodied in sound recordings, have become the dominant primary source for patrons’ research and creative needs. They are the essential and expected vehicle for documenting and disseminating creative output. Contemporary composers, for instance, need to submit recordings of their works along with scores for competitions. In the same way that other scholars have used the written word to submit publication of books and peer-reviewed articles, contemporary composers submit sound recordings of their works distributed by major labels as a requirement for tenure. Online license-driven sound recordings with their rigid agreements are a detriment to composers working in academic institutions.^[6] With respect to research
within popular music, the sound recording is the primary, and often the only resource for scholars. In addition, research and creativity are not limited to scholars within schools of music with respect to the use of sound recordings as research tools. Scholars in numerous disciplines, including history, sociology, and foreign language study, have relied on sound recordings of popular music for their research as well.^[7] Although the landscape for distribution of sound recordings has changed with technologies and accompanied by end-user-license-agreements, music libraries’ missions to preserve and create access to these works for researchers has not.

Recording labels have also benefitted from music libraries’ ability to preserve and make accessible sound recordings of musical works. To cite one example, Bowling Green State University’s Music Library assisted the record label, RCA, in reissuing Henry Mancini recordings. This library had very well preserved the album covers of these historical LP recordings and RCA greatly benefitted from it.^[8] While this example does not directly address the preservation of the sound recordings, it demonstrates that record labels cannot always be relied upon to preserve their recordings, and in such cases might rely on libraries to assist them with re-issues of recordings.

Desired Outcomes:

The Music Library Association insists that any plans that may solve this problem must, at a minimum, allow libraries and archives to:

1. Acquire the recordings of works at a reasonable price;
2. Store and preserve these works locally; and
3. Serve these works to their patrons.

A legislative solution will ultimately be needed to achieve these outcomes and to prevent loss of material from the cultural record, and to ensure that library patrons can continue to make creative, personal, and research uses that all libraries have traditionally supported.

Current Actions Taken By Music Libraries To Address The Problem:

Some individual music librarians have taken initiatives to be able to preserve and make available these online license-driven works. The following actions have often not been successful and will not allow libraries to pursue their mission as cultural institutions in the future.

1. By negotiating directly with artists, librarians may be able to acquire content in a library-friendly fashion, by bypassing the large content aggregators.

Caveat: this is very time and resource-intensive. It is often not possible for many artists to negotiate with libraries because they have been required to assign their rights to the recording labels representing them. This will still leave many works
unavailable for libraries to acquire.

2. By negotiating directly with record labels, we might likewise be able to make some additional works available.

Caveat: though more difficult than negotiating with individual artists, success with record labels will bring larger pay offs. To date, larger record labels have not responded favorably to recent negotiation attempts by libraries.

3. By promoting and supporting library-friendly services such as CDBaby or Free Music Archive, we may provide a positive incentive for other, similar services to follow suit. Highlighting role models may also serve to demonstrate to competing services how our needs can be compatible with their success.

Recommended Actions:

The Music Library Association recommends the following actions to successfully address and solve this problem:

1. The Music Library Association should immediately begin spearheading efforts to craft model legislation. Our organization needs to build a coalition of other library organizations, lawmakers, musicians, and other interested parties who will champion our work to legislatively solve this problem. One model for this coalition to examine is the recently introduced House bill (H.R. 5586) “You Own Devices Act” (YODA) written by Representative Blake Farenthold in September of 2014.^[9] To
summarize, this bill would allow consumers to do the following:

If a computer program enables a device to operate, YODA would let you transfer ownership of a copy of that computer program along with the device. The law would override any agreement to the contrary (like the one-sided and abusive End-User License Agreements commonly included with such software)^[10]

2. The Music Library Association must lead efforts to create a LOCKSS-style framework where libraries may begin storing known examples of EULA-only works in dark archives, to be made available if and when the legal landscape favors it.

* While a collaborative framework is being built, librarians should begin downloading known examples of EULA-only works and storing them in offline, non-accessible locations within their institution.

* The Music Library Association must lead grant-funding efforts to build a national framework.

3. To accompany the above framework and to encourage music librarians to continue to research the issue, the Music Library Association should host a central, mediated, growing list of known examples of EULA-only works. The list might also include other relevant information such as current distributors’ contracts, relevant court cases, and other writings on the issue.

4. The Music Library Association must raise broad awareness to a wide audience of how this problem affects music scholars, performers, composers, and related patron bases. This could be accomplished through a campaign similar to the “Read” posters created by the American Library Association.

Notes

1. 17 U.S.C. § 109.
2. Hoek, D.J., “The Download Dilemma,” American Libraries, July 27, 2009, accessed October 5, 2014, http://www.americanlibrariesmagazine.org/article/download-dilemma;
   Kevin Smith, “Planning for Musical Obsolescence,” Scholarly Communications @ Duke, July 28, 2014, accessed October 5, 2014, http://blogs.library.duke.edu/scholcomm/2014/07/28/planning-for-musical-obsolescence/.
3. For a court case addressing the doctrine of first sale and online-only music sound recordings, please see: Capitol Records, LLC v. ReDigi Inc., 2013 WL 1286134 (S.D.N.Y. Mar. 30, 2013).
4. “The Congress shall have power… To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. Const. art. I § 8.
5. “Today’s digital formats are not inherently safe harbors of preservation. Protecting and maintaining digital audio recordings poses problems that go beyond those associated with the preservation of analog recordings… For example, successive releases of software programs may no longer be compatible with earlier files.” Rob Bamberger and Sam Brylawski, The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age (Washington D.C.: CLIR, 2010): 2; here is an example of lost content from a popular television show, “More than 100 installments of [Doctor Who] are still missing because the BBC did not start routinely archiving its shows until 1978.” John Plunkett, “’Lost Doctor Who Episodes from 1960s Returned to BBC,” Guardian, December 12, 2011, accessed October 2014, http://www.theguardian.com/media/2011/dec/12/lost-doctor-who-episodes-bbc.
6. Tom Moore, “Sound Recordings,” Notes 56 no. 3 (March 2000): 635-636.
7. “Popular music… has become increasingly the object of study in the academy… This is also an area where the sound recording is fundamental, and the notated score secondary or nonexistent and, once more, an area neglected in earlier years. Finally, the erudite and popular music of non-Western cultures (India is a good example) is increasingly of interest.” Ibid., 640.
8. Hoek, “Download Dilemma.”
9. You Own Devices Act, H.R. 5586, 113th Cong. (2014). https://www.congress.gov/bill/113th-congress/house-bill/5586 (Accessed
   October 30, 2014).
10. Kit Walsh, “Bill Introduced in Congress to Let You Actually Own Things, Even if They Contain Software,” Electronic Frontier Foundation Deeplinks Blog, September 19, 2014, https://www.eff.org/deeplinks/2014/09/bill-introduced-congress-let-you-actually-own-things-even-if-they-contain-software (Accessed October 30, 2014).