Isn’t It A Pity?
The Failure of Technology:
Over the last fifty years, modern popular music has evolved to revolutionize the world. Early rhythm and blues, exemplified by Big Joe Turner’s “Shake, Rattle, and Roll” or the Dominoes’ “Sixty Minute Man”, scandalized and titillated audiences both black and white through their ribald lyrics and raucous performances. More importantly, because young people bought records such as these in ever-greater numbers, a new youth-oriented mass culture arose in the United States that contrasted and eventually opposed the heretofore-dominant parental or elder cultural forms. This pattern of new music forms “stirring up” young people against their parents (or even just their older siblings, as in the mid-1970s punk “revolt”) has been repeated many times since, even as the original and now the youngest second-generation rock-and-rollers/rockers become parents themselves.
While this phenomena has effected vast change in both music and our society at large in the last half-century, in academic circles, the rise of rock music remains largely ignored. It is relatively easy to find courses and even whole curricula devoted to jazz (the lifespan of which is not that much greater than rock, given the time scale of centuries used in music schools) on the university level, but in a survey of most of the top music schools in the country, I found only one University (Indiana) that had a program (of a mere six courses) devoted to rock, and many others paid but scant attention to the genre at all. (See Table I) Why this should be so remains outside the scope of this paper, but certainly this negligent attitude has affected the archiving practices of the academy in regards to rock (and the other post-World War II popular musics).
Another indication that music scholars are treating modern popular music less seriously by can be seen
in a survey of articles and reviews presented by the major journal of the Music Library Association, Notes. The
last five volumes contained 15 articles, 196 book reviews, 48 music reviews, and 3 other (software) reviews.
None of the articles and music reviews pertained to pop music, and only 7-8 (depending on one’s definition)
of the book reviews addressed popular music writings. Even if one limits the discussion to those reviews
concerning 20th century topical works, the rock era—the latter half of that period—is vastly underrepresented.
These five volumes of Notes contain 61 20th century music book reviews; the 7-8 pop music book reviews thus
denote barely a quarter (if that) of the expected amount of reviews, even based solely on these narrow
chronological terms. (See Appendix I). The news is even worse when looking at the house journal for the Society for
American Archivists. Since 1998, only one article out of the 51 printed had any potential relevance to music
collection, and the author makes it clear that the profession is still not treating audio archiving formally or
systematically. “Unfortunately, many archivists are discovering that their professional training has not prepared
them for dealing with recording media and systems, and they find themselves at a loss when attempting to
administer and preserve their audio collections.” (Paton, pg. 188)
For archivists trained for, and archives dedicated to, the collection of popular music, though, many
additional (and more serious) problems make the continued existence and relevance of the profession problematic.
The biggest and most important rock music archive, the Sound Recordings Archive at Bowling Green State
University, has been in operation since 1967, however funding remains the primary concern. William Schurk, the
head of the Archive since its inception, admits that although physical access to the collection is fairly open,
“much of our recordings backlog has yet to be cataloged and access to that is only through me and my using
discographies and other reference tools.” (Schurk, question #2, see Appendix II) The catalog is available online
at: http://maurice.bgsu.edu/screens/opacmenu.html, although there are currently no plans for digitizing any of
the materials themselves for either preservation purposes or online dissemination, even for researchers on
campus. There is simply not enough money for such a project, even if Schurk and his colleagues had the time to
devote to it. Schurk maintains his faith in the prospects for the Archives’ survival in the face of fiscal crises, but
he is not without his moments of doubt: “At times I get a bit despondent but then I find something cool at the
Goodwill or a used record shop to quiet me down.” (Schurk, question #3 and #5)
Even for a collection with no apparent fiscal worries, though, access remains a central issue. The Library
of Congress holdings, which cover the whole range of music genres, of course, could be providing scholars
with the ultimate resource. Due to its indiscriminate nature, however, one could argue that the LC is not really
an “archive” at all, but rather a mass of uncoordinated deposits collected without thematic or generic
rationale. The overwhelming size of the holdings (over 2.5 million recordings, increasing by roughly 75,000 or
more each year) precludes all but the most basic cataloging or indexing strategies, making access to the
holdings highly knowledge-dependent. (Locating Sound Recordings) The researcher who does not know
exactly what 45 or LP s/he is looking for will find the LC’s collection difficult (at best) to use as a resource.
The LC may also be indifferent to changes in format. For example, all of the Velvet Underground’s
original releases are accessible on vinyl through the catalog, but none of the CD releases are listed. Does this
mean the LC does not have those copies, or that they have yet to log them? In either case, the user is stymied.
The LC has required all labels releasing music since 1978 desiring copyright (and all releases since 1989, regardless)
to deposit a copy (or two, depending on the item in question) with the LC, so it seems logical to presume that
those CD versions are present in the LC vaults, but without proper cataloging records they might as well not
exist. (Circular 7d: Mandatory Deposit of Copies or Phonorecords for the Library of Congress)
The LC has planned a more systematic archive, though, that will be devoted to the access and
preservation of American musics. In November of last year, Congress finally addressed this issue and passed the
National Recording Preservation Act (colloquially known as the “Grammy Bill” before passage), the terminology and
construction of which was modeled on the National Film Preservation Act. The creation of the National
Recording Registry and Preservation Board is a fundamental acknowledgment by our government that these
artifacts are of vital importance not just in and of themselves as pieces of art, but also because they represent
our modern cultural heritage and must be saved for future generations to study, and quite possibly, enjoy.
The central creation of the Act is the National Registry. Conceived of as an accessible repository of
music, the Registry will thus correct many of the flaws inherent in the present musical archiving policies of the
Library of Congress. "It has a focus on preserving song and recordings," says [Mickey Hart] the former Grateful
Dead percussionist, who is also a trustee of the Library of Congress. "We all have our own registry in our heads,
but this goes a step further. It says that songs and recorded collections are important, to us and to the nation,
and it makes preservation a national priority.” (Dansby) The Act also calls for the preservation of recordings in
(or conversion to) a digital format, which will presumably aid in reducing present storage costs while at the
same time creating the possibility of easier dissemination of these materials. As Hart observes, “This is a terrific
opportunity because once we digitize it, we can give it away. This isn't a business, it's about recognizing
national heritage." (Dansby)
The main problem facing the yet-to-be created Board, however, is the same as Schurk encounters:
funding. The Act only provides for nominal governmental support—a scant $250,000 per year, although matching
donations will be made as well. (See Appendix III, The Final Draft of the NRPA, section 133.) Convincing citizens
of the desirability (if not the necessity) of saving music for the future will be a difficult public relations task facing
the Foundation. Making it even harder will be arguments against the Act’s very existence made by commercial
entities already attempting to collect and store music. The arts are usually on the cutting edge of technological
usage and creation, and music is almost always the art form furthest “ahead of the curve”. It stands to reason
that paying close attention to the issues facing the music industry, its producers, and its consumers can only
help locate and address potential threats and opportunities for the library community. These companies have
solved the financial problems that will be facing the Foundation by shifting the costs onto the end user, the
logical result of “privatization” in a capitalist economy.
Following from the fact that the bulk of pop musics were created and distributed for profit, those
concerned with the recording and distributing of rock have learned that even the oldest of these recorded
materials have value beyond the archival. The reissuing and repackaging of older records have created enough of
a profit to encourage labels to save original masters and outtakes as potential sources for future revenues. Private
corporations, however, have little incentive to share their archives with anyone not paying for that privilege, so
for the most part, the present state of rock music archiving relies on the “twin towers” of copyright law: the
doctrines of “first sale” and “fair use”.
Anyone buying a copy (the eponymous first sale) of the Velvet Underground’s “White Light/White Heat”
could do what he/she wants with it, including resell it, save it, burn it, make a tape of it, or play it for friends in
private. A researcher could quote from its’ lyrics, play selections from it, or make it available for listening by
his/her students, all in the context of education. These were all considered to be fair legal uses of that single
copy of “White Light/White Heat”. Legal, that is, until Congress passed the Digital Millennium Copyright Act
(DMCA) of 1998.
The Act itself does not prohibit fair use of these materials; indeed the DMCA goes out of its way to
reaffirm the principle of fair use. (Digital Millennium Copyright Act Summary, , p. 4.) The passage of the DMCA
began to affect fair use, however, as soon as record labels started producing CDs encrypted (using “Digital
Rights Management” technology, or “DRM” software) against copying (known as “ripping”) by computers for
conversion into the portable MP3 or other similar formats. The most common encryption method incorporates
similar technology to that used in protecting videotape, which makes sense since the producer of each is
Macrovision. Macrovision encryption affects playback only in rare cases, but in both their original video and
their new audio codes, any copies made from the original source will contain “noise” making the copy virtually
unlistenable/unwatchable. (Eng) In other words, the teacher who wants to make his/her encrypted CD copy of
“White Light/White Heat” available to anyone taking his/her class will no longer be able to rip it onto his/her
school server for easy access, even though this is the definitive example of fair use. Indeed, “ . . . when DRM
technology becomes pervasive, content owners will also be able to prevent you from ripping tracks from your
favorite CD and burning them onto a recordable CD for personal use.” (de Carmo, pg. 84)Furthermore, the
DMCA explicitly makes illegal the breaking of any encryption coding by individuals except under specialized
cases, none of which have anything to do with fair use. (Digital Millennium Copyright Act Summary, , pp. 5-6.)
The other twin tower, first sale doctrine, sustained a hit by the decision in the Napster case, although the
issues presented were far murkier therein. At first glance, peer-to-peer file sharing would seem to be no more
offensive to copyrights holders than the bogeyman of home taping turned out to be by the mid-1980s. The
difference, of course, is that in the digital realm, any copies made of the source material suffer no appreciable
degradation of sound quality, unlike analog copying/taping. The secondary, tertiary, or any other subsequent
generations are virtually identical to the originals used, making digital copying a far more likely candidate for
piratic activity than home taping ever could have been. The industry had therefore resisted most attempts to
compete in the digital arena, leaving the filed open for independent operators. "The industry has been very
reluctant to get into distribution online, mostly because of piracy fears. Upstart companies and consumers have
downloaded music online, and the record labels were pulled into it." (Bartlett)
Piracy, though, was not the main bone of contention between the record labels and Napster. The
record labels charged merely that file-sharing of the sort Napster software allowed created an atmosphere
deleterious to their commercial goals. The Appellate Court sided with the labels, stating: “[h]aving digital
downloads available for free on the Napster system necessarily harms the copyright holders' attempts to charge
for the same downloads. The record supports the district court's preliminary determinations that: (1) the more
music that sampling users download, the less likely they are to eventually purchase the recordings on audio CD;
and (2) even if the audio CD market is not harmed, Napster has adverse effects on the developing digital
download market.” (Napster Decision: Highlights)
And even though Napster (and its “P2P” brethren) did not actually store any of the shared digital music
files on its own servers, according to the Appellate Court’s decision, its role was quite obvious: Napster facilitated
the illegal transfer of copyrighted materials, thereby acting illegally itself. “The district court determined that
plaintiffs in all likelihood would establish Napster's liability as a contributory infringer. The district court did not
err; Napster, by its conduct, knowingly encourages and assists the infringement of plaintiffs' copyrights.”
(Napster Decision: Highlights) Underlying the plaintiffs’ case and providing a base for the Court’s decision was
the apparently misguided notion that new legitimate services were being stymied by the cost-free Napster
platform. “Analysts who argued that Napster should be suppressed assumed that legal methods of digital
downloading would soon appear and that music would become too cheap to be worth stealing. If this is
wrong, the situation will take new and unpleasant turns as pirate sites reappear, this time far beyond the reach
of the US courts that decided against Napster.” (DeLong) This prediction from May of 2001 has already begun to
be fulfilled; Gnutella, Morpheus, KaZaa, and many others behaved in similar fashion (and still do) to Napster,
although none of these others have been as pilloried by the recording industry. Having proved its point,
seemingly, by winning the Napster case, the industry has now turned its energies to more profitable pathways
by emulating its illegal rivals.
By providing users with controlled web access to music files, record labels believe they can harness this
new technology for their own purposes, much as they succeeded with their introduction of the compact disc
some 15 years earlier. Theoretically, the vast market tapped by Napster and the other P2P players represents
a “new” audience for commercially released product, even though the actual users are probably
comprised of the same individual consumers of other-formatted music. Converting users who have been
happy to download music files for free into paying customers, though, remains a problem the labels have
yet to truly tackle. While paying a great deal of lip service to the various courts during the Napster trials
that they were ready to provide commercial downloading, none of the labels have actually begun to do
so in the six months since the Appellate Court rendered its final decision.
In the wake of Napster, the various major record labels have officially and separately sponsored two
potential downloading services—MusicNet and pressplay. The two are not necessarily in competition,
however, since both services have reached licensing agreements with different content providers:
MusicNet plans to disseminate files supplied by the AOL/TimeWarner, BMG, and EMI music groups; pressplay
is allied with Sony and Vivendi (a relatively new conglomerate of the old Polygram, Geffen, and MCA
labels). Neither site provides many clues as to how these platforms will function; both use fairly vague
language in their “About Us” statements, especially in regards to origination or purpose.
For example, MusicNet answers its own question “What will the MusicNet user experience be like for the
consumer?” with this: “We feel that in order for a digital music subscription product to be successful it must
make it easy for consumers to find and acquire the music they want and easy to play the music. MusicNet
will be the first product in the marketplace to combine this level of ease of use along with rights protection
for the content owners.” (Emphasis added) (MusicNet About Us Faqs) Instead of providing a glimpse into
the actual workings of their system in order to demonstrate a possible “user experience”, MusicNet has
opted to evade its own question by stressing what will make them successful, while simultaneously making
it clear (in the emphasized portion) what is really important to the company.
Oddly enough, pressplay is somewhat more forthcoming in regards to this issue of rights management,
in due part to its partnership with Microsoft, a major proponent (and creator) of DRM software. In a press
release featured on the pressplay web site, Andy Schuon, President and CEO states, "[o]ur relationship with
Microsoft offers us access to one of the world's largest consumer networks, via MSN, as well as high-quality audio
with Windows Media and DRM technology, which strengthens the pressplay service offering…” (Pressplay Press
Release) Users looking for a detailed explanation of how the service works, however, will be just as
disappointed: “The subscription service, which will be available in the United States this Fall, will offer streaming
and downloads through a secure delivery system designed to respect and protect artists' rights. To provide the
richest online music experience to consumers, pressplay will be offered with a user-friendly Web interface.”
(emphasis added) (Pressplay Home Page) in addition, and as was the case in MusicNet’s FAQ answer noted
above, pressplay has interwoven a statement of copyright protection policy into its comment on user
The consolidation of digital distribution networks has had the unfortunate, although completely
predictable, effect of eliminating (or at least drastically curtailing) market competition. The ready-made duopoly
MusicNet and pressplay enjoy, although they have yet to upload their first songs, has already killed smaller entities
seeking to provide even legal access to music. Michael Robertson, ex-CEO of MP3.com states flatly,
There is no place for a small company
to pull off a monster vision
in digital music . . . If you’re making a tiny widget that’s a bolt-on
feature for listening to music, fine—that can be a small company.
But if you want to be the grand vision, the place where everyone
stores their music and listens to it wherever they go, that’s a very
big undertaking and a small company simply cannot do that.
What you’re witnessing on the digital music front is that all the
small to medium companies are going away. The window of
opportunity is over . . . The power . . . is consolidated squarely
back in the hands of the same record industry executives that
held the reins before. Everyone with a good idea that doesn’t
fit into what the music moguls have already deemed appropriate
is out of luck. [quoted in Brown, 2001 #16, pp.2, 3]
A statement of this nature might sound like disillusioned ranting, but Robertson makes for a compelling and
credible witness—not because he ran one of those companies with “the grand vision”, of course, but also
because he profited handsomely for his sale of MP3.com technology to Universal, making his grapes quite
sweet. (Brown, pg. 2)
Robertson’s “music moguls”, however, are depending on DRM technology to maintain their control
over the digital landscape, and this raises more than just economic issues, as mentioned above. Especially at
the beginning of the DRM controversy (as Napster came under fire in the spring of 2000), some theorized that
encryption technologies and even the whole concept of charging user fees for downloading would not
withstand consumer activism. “ . . . In the Digital Era, trying to sustain exploitative business practices is hopeless.
The day of the $15.95 pop-music CD is over. Whatever digital walls your guys can build, my guys can tear down.
Sometimes overnight. The impact of the digital revolution on the recorded music business ought to be a wake-
up call for other businesses. Those who hide behind physical-distribution barriers to protect inflated prices will
face exactly the same kind of disemboweling coming in the record biz.” (Seymour, pg. 106) Jon Sobel, of the
Society of Independent Musical Artists, in an account of the proceedings for the first Future of Music Policy
Conference held on January 10-11, 2001, concurred:
“ . . . the Conference audience evinced strong
technological security measures like encryption and watermarking.
An observer might be led to suspect that for cultural or marketplace
reasons alone, the future of this strategy is doubtful for the long term.
Marybeth Peters of the US Copyright Office, for example, thinks that
the marketplace will not bestow its blessing on encryption. ‘I don’t
think people are going to lock [the content] up.’ she said. ‘I don’t
think the economics are there.’” (Sobel)
Relying on the majority of consumers to act illegally in order to protect their first sale rights, however (as
Seymour apparently does), is probably not the best strategy to defeat the music industry’s interests, regardless of
how many people choose to skirt lawlessness by using the newer renegade P2P services. The American public
has historically chosen to follow the nation’s established laws and customs, even when legal acts seemingly
broach its rights or impair its economic welfare. None of the music industry’s mergers/acquisitions, price hikes,
or format changes over the last 25 years—all of which were implemented to increase profits for the industry at
the expense of the consumer—have provoked more than token resistance from the public, belying Peters’s
It is likely, though, that the new forms of digital dissemination and its manipulation have changed the
rules somewhat, both for the artist and the public. The Pho listserve, which enables many frontline music
businesspeople, artists, and information science workers to exchange ideas and new information, has
repeatedly contained threads on this topic. Ken Appleman, former CTO of About.com, stated “[t]he Internet
allows artists an unprecedented freedom from the old systems built to profit from their work . . .” (Appleman),
although tobyslater demurred in his reply, asserting that “[t]he problem is that it’s very rare anyone will willingly
pay for online content and it’s even more rare that a site or service makes it easy to pay.” (tobyslater)
While our perusal of the two legal music downloaders above illustrated the difficulty of proving or
disproving tobyslater’s assessment, perhaps the latest legal development concerning P2P services drives home his
point, albeit by inference only. Napster, though apparently knocked out of the downloading game by the Appellate
Court’s verdict 5 months ago, has struck back in a lawsuit designed to force the record labels to drop their
duopolistic plans. Napster’s argument rests on
an interesting conundrum of anti-trust logic here: Unlicensed
sharing services might be illegal. But if they are illegal then the legal
licensed versions like pressplay, MusicNet, MP3.com etc, will each
have to choose sides with one Big Five or another exclusively to
avoid anti-trust violations. And if they do that they will never have a
complete catalog and so probably compete so fiercely among
themselves until they are free and go out of business. Conversely, if
file-sharing is legal then labels will have to license to the underground
services as much as the legitimate corporate ones to avoid antitrust
violations, which will void their exclusive agreements with pressplay
and MusicNet. (Avalon)
In other words, if the presiding Judge agrees with Napster by insisting that the record labels open negotiations
with all downloading services, then according to Avalon market competition would conceivably make
tobyslater’s assertion relatively moot.
On the other hand, the DRM technology that the industry wants to implement is not really designed to
forestall downloading, but instead to make it impossible for users to take the downloaded music files with them
when they leave their computers without paying an extra fee. “Downloaded files are tethered to the subscriber’s
computer, meaning they can’t be copied for playback on other devices—a condition imposed by the labels.”
(Howe, pg. 145) Brad King, in an interview with Princeton Professor Edward Felton, believes the labels’
motivation for the inclusion of DRM technology designed to achieve this goal constitutes the heart of the
industry’s attack on the public’s fair use rights. “Felton said he thought the major companies were pushing to
gain unprecedented control over copyright. ‘I have a problem with DRM because as a member of the public, I
can manage my rights just fine . . . This gives copyright owners to control rights that they don’t necessarily
have.’” (King, pg. 2)
The perniciousness of DRM is not just that it threatens to curtail public access to materials, legal or
otherwise, (which has been the objective of entertainment industry lawsuits against technological advances since
the Sony Betamax case), or even that it allows heretofore unknown control of copyright. DRM technology is
frightening to those aware of it because of its potential to accumulate information regarding individuals’
listening/viewing habits. “DRM in its present form inevitably impinges on privacy to some degree; it can’t
operate without constant verification of the user’s identity. In a nation committed to protecting its citizens’
right [sic] to express ideas, even those repugnant to the majority, the need to preserve a zone of anonymity
around media consumption is at least as compelling as the demand for instant access to every Sopranos
episode.” (Howe, pg. 147) While few argue over the industry’s constitutional rights to turn a profit (even an
obscenely healthy one), this threat to civil liberties and personal privacy must be challenged, especially by those
in the library community, and defeated.
Libraries and archives have always clung to the canonical belief in user anonymity as an integral tenet
of their institutional missions. The right to privacy is the very foundation of a free and democratic society (witness
our pioneering the concept of “free and open elections” using “secret ballots”), and this extends to the materials
one chooses to read, watch, or listen to. Usually libraries are far from the firing line on many issues, especially
ones involving private corporations engaged in commercial enterprise, but the controversy over DRM places
libraries, archives, and museums squarely front and center in the debate. Many of these institutions will
increasingly be placing a great deal of their holdings online so as to increase access to, and usage of, their
materials—this is the function of the library profession.
The DMCA and the attendant reaction of the content providers in the music industry (the rise of DRM
technology and its employment) to that Act both signal direct challenges to the library/archive/museum
concept of access. That only a very few of the academic, none of the public, and only illicit commercial,
entities engaged in collecting music currently digitize their collections should not prevent all of us in the library
profession from joining in the fight against this encroachment on our rights. Furthermore, in the new digital
environment, content becomes relatively meaningless—the music files encrypted with DRM described here
might just as easily be e-books or scanned images—so all of us should feel the same sense of outrage. Just
because these issues are currently affecting only a small percentage of our cohort (if any at all) does not mean
that this is not a major struggle for the rest of us as well.
Notes Reviews on Popular Music Books
(8 total, including 1 on blues music)
Vol. 57, #1: Bowers, Jane M. A Blues Life.
Block, Steven. The Beatles As Musicians.
Daubney, Kate. Frock Rock.
Vol. 57, #2: Walser, Robert. Understanding Rock.
Mercer-Taylor, Peter Jameson. The Cowboy and the Dandy.
Regev, Motti. Reading Rock and Roll.
Vol. 57, #3: none.
Vol. 57, #4: Hawkins, Stan. Expression in Pop-Rock Music.
Vol. 58, #1: Macan, Edward. Tomorrow Never Knows.
William Schurk E-mail Interview
1) Where are the most important popular music repositories (as opposed to scores, sheet music, manuscripts, etc.) in the US? Are there enough? Are they open to the public, or is that not a major concern?
A: Most repositories (actually are they really repositories or are they really libraries and archives? We never billed ourselves as a repository) I know about and deal with are at academic institutions. That is where the credibility lies! Thus:
Marr Sound Archives (University of Missouri/Kansas City)
Archives of Jazz Studies (Rutgers)
Hogan Jazz Archives (Tulane)
Rodgers and Hammerstein Archives (NYC)
Library of Congress
Chicago Public Library
Center for Popular Music (Middle Tennessee State Univ./Murfreesboro, TN)
Country Music Foundation Library & Museum (They just recently had a MAJOR personnel shake-up and a lot of good people were hurt)—I don’t know their status as of now
ARChive of Popular Music (NYC), private and has poor access
There could be more Popular Music Archives however there has to be a reason for one to exist on a college campus if there is to be adequate space and funding. Many academics and students look to us because we are a university with web access to our catalog. Some of the other libraries don’t have that luxury. Libraries SHOULD be open to the public (not like the ARChive of Popular Music). Why hide a collection and deny service? That is where the world of the paranoid private collector resides!
2) What kinds of access does your archive provide its users, and who are the main user groups?
A: We have open stacks with many periodical titles, reference books, and circulating books and scores. The closed stacks have all the recordings (Archive records don’t circulate), pop music books (non-circulating), and many popular periodical titles. Anything that is in the catalog can be used. However, much of our recordings backlog has yet to be cataloged and access to that is only through me and my using discographies and other reference tools. The original audience of the collection which I started in 1967 was understandably our school (faculty and students), but we have stretched far beyond that and reach out to visiting scholars, discographers, visiting students (secondary schools and up), record companies, TV & film producers, and the like. The site for our catalog is:
We get requests from walk-ins, by mail, by phone, and by email. There is also a fee-based service for recording, photocopying, and research.
3) Does your archive allot funds for digitization of music resources, and if so, into what format(s)? Is there a standard for the digital conversion and preservation of music?
A: No bucks for digitization. The copyright bugaboo is foremost in our minds and we have decided not to tackle it now. The only thing we do is make dubs onto CD’s for reserve listening material for College Of Musical Arts students. Pop stuff doesn’t go on reserve.
4) How did/does/will the passage of the DMCA affect your decisions regarding migration and/or digitization of music? Should this current climate of escalating restriction for fair use be taken into account by archivists seeking to create digital libraries of music? Is that endeavor even possible or desirable now?
A: Don’t spend time dealing with this situation. I am too busy acquiring and cataloging now.
5) What are the other prominent issues facing the archiving of popular music? How is your archive and its staff addressing them?
A: Adequate budget for periodical subscriptions, and the purchase of books and recordings. You never have enough $$. I have never gotten enough to keep up with current recordings and also trying to buy retrospectively. Gifts bring in a lot of treasures but you HAVE to have the $$ to get what you MUST. At times I get a bit despondent but then I find something cool at the Goodwill or a used record shop to quiet me down. With the current state of our state’s education budget I don’t see the situation improving any time soon.
Security always a top priority, where we have the floor and the collection area alarmed with the elevators keyed for when we close. Only recently I started to Tattletape selected LP’s. It would be quite a task to go back and do the whole cataloged collection.
Access through cataloging. We input our cataloged information onto OCLC and then it is downloaded to our website. The recording cataloging, which we do on our floor, gets to be quite intense. We go an extra mile when we do the research for proper documentation and discographical citation. Take a look at our site. We also belong to NACO (LC name authority program).
Bill Schurk, Professor
Sound Recordings Archivist
The Final Draft of the National Recording Preservation Act
Public Law 106-474
To establish the National Recording Registry in the Library of Congress to maintain and preserve sound recordings that are culturally, historically, or aesthetically significant, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE. <<NOTE: 2 USC 1701 note.>>
This Act may be cited as the ``National Recording Preservation Act of 2000''.
TITLE I--SOUND RECORDING PRESERVATION BY THE LIBRARY OF CONGRESS
Subtitle A--National Recording Registry
SEC. <<NOTE: Establishment. 2 USC 1701. >> 101. NATIONAL RECORDING REGISTRY OF THE LIBRARY OF CONGRESS.
The Librarian of Congress shall establish the National Recording Registry for the purpose of maintaining and preserving sound recordings that are culturally, historically, or aesthetically significant.
SEC. <<NOTE: 2 USC 1702.>> 102. DUTIES OF LIBRARIAN OF CONGRESS.
(a) Establishment of Criteria and Procedures.--For purposes of carrying out this subtitle, the Librarian shall--
(1) establish criteria and procedures under which sound recordings may be included in the National Recording Registry, except that no sound recording shall be eligible for inclusion in the National Recording Registry until 10 years after the recording's creation;
(2) establish procedures under which the general public may make recommendations to the National Recording Preservation Board established under subtitle C regarding the inclusion of sound recordings in the National Recording Registry; and
(3) determine which sound recordings satisfy the criteria established under paragraph (1) and select such recordings for inclusion in the National Recording Registry.
(b) Publication of Sound Recordings in the Registry.--The Librarian shall publish in the Federal Register the name of each sound recording that is selected for inclusion in the National Recording Registry.
SEC. <<NOTE: 2 USC 1703. >> 103. SEAL OF THE NATIONAL RECORDING REGISTRY.
(a) In General.--The Librarian shall provide a seal to indicate that a sound recording has been included in the National Recording Registry and is the Registry version of that recording.
(b) Use of Seal.--The Librarian shall establish guidelines for approval of the use of the seal provided under subsection (a), and shall include in the guidelines the following:
(1) The seal may only be used on recording copies of the Registry version of a sound recording.
(2) The seal may be used only after the Librarian has given approval to those persons seeking to apply the seal in accordance with the guidelines.
(3) In the case of copyrighted mass distributed, broadcast, or published works, only the copyright legal owner or an authorized licensee of that copyright owner may place or authorize the placement of the seal on any recording copy of the Registry version of any sound recording that is maintained in the National Recording Registry Collection in the Library of Congress.
(4) Anyone authorized to place the seal on any recording copy of any Registry version of a sound recording may accompany such seal with the following language: ``This sound recording is selected for inclusion in the National Recording Registry by the Librarian of Congress in consultation with the National Recording Preservation Board of the Library of Congress because of its cultural, historical, or aesthetic significance.''
(c) Effective Date of the Seal.--The use of the seal provided under subsection (a) with respect to a sound recording shall be effective beginning on the date the Librarian publishes in the Federal Register (in accordance with section 102(b)) the name of the recording, as selected for inclusion in the National Recording Registry.
(d) Prohibited Uses of the Seal.—
(1) Prohibition on distribution and exhibition.--No person may knowingly distribute or exhibit to the public a version of a sound recording or any copy of a sound recording which bears the seal described in subsection (a) if such recording—
(A) is not included in the National Recording Registry; or
(B) is included in the National Recording Registry but has not been approved for use of the seal by the Librarian pursuant to the guidelines established under subsection (b).
(2) Prohibition on promotion.--No person may knowingly use the seal described in subsection (a) to promote any version of a sound recording or recording copy other than a Registry version.
(e) Remedies for Violations.--
(1) Jurisdiction.--The several district courts of the United States shall have jurisdiction, for cause shown, to prevent and restrain violations of subsection (d).
(A) Removal of seal.--Except as provided in subparagraph (B), relief for violation of subsection (d) shall be limited to the removal of the seal from the sound recording involved in the violation.
(B) Fine and injunctive relief.--In the case of a pattern or practice of the willful violation of subsection (d), the court may order a civil fine of not more than $10,000 and appropriate injunctive relief.
(3) Limitation of remedies.--The remedies provided in this subsection shall be the exclusive remedies under this title, or any other Federal or State law, regarding the use of the seal described in subsection (a).
104. NATIONAL RECORDING REGISTRY COLLECTION OF THE LIBRARY OF CONGRESS.
(a) In General.--All copies of sound recordings on the National Recording Registry that are received by the Librarian under subsection (b) shall be maintained in the Library of Congress and be known as the
``National Recording Registry Collection of the Library of Congress''. The Librarian shall by regulation and in accordance with title 17, United States Code, provide for reasonable access to the sound recordings and other materials in such collection for scholarly and research purposes.
(b) Acquisition of Quality Copies.—
(1) In general.--The Librarian shall seek to obtain, by gift from the owner, a quality copy of the Registry version of each sound recording included in the National Recording Registry.
(2) Limit on number of copies.--Not more than one copy of the same version or take of any sound recording may be preserved in the National Recording Registry. Nothing in the preceding sentence may be construed to prohibit the Librarian from making or distributing copies of sound recordings included in the Registry for purposes of carrying out this Act.
(c) Property of United States.--All copies of sound recordings on the National Recording Registry that are received by the Librarian under subsection (b) shall become the property of the United States Government, subject to the provisions of title 17, United States Code.
Subtitle B--National Sound Recording Preservation Program
111. ESTABLISHMENT OF PROGRAM BY LIBRARIAN OF CONGRESS.
(a) In General.--The Librarian shall, after consultation with the National Recording Preservation Board established under subtitle C, implement a comprehensive national sound recording preservation program, in conjunction with other sound recording archivists, educators and historians, copyright owners, recording industry representatives, and others involved in activities related to sound recording preservation, and taking into account studies conducted by the Board.
(b) Contents of Program Specified.--The program established under subsection (a) shall--
(1) coordinate activities to assure that efforts of archivists and copyright owners, and others in the public and private sector, are effective and complementary;
(2) generate public awareness of and support for these activities;
(3) increase accessibility of sound recordings for educational purposes;
(4) undertake studies and investigations of sound recording preservation activities as needed, including the efficacy of new technologies, and recommend solutions to improve these practices; and
(5) utilize the audiovisual conservation center of the Library of Congress at Culpeper, Virginia, to ensure that preserved sound recordings included in the National Recording Registry are stored in a proper manner and disseminated to researchers, scholars, and the public as may be appropriate in accordance with title 17, United States Code, and the terms of any agreements between the Librarian and persons who hold copyrights to such recordings.
112. PROMOTING ACCESSIBILITY AND PUBLIC AWARENESS OF SOUND RECORDINGS.
The Librarian shall carry out activities to make sound recordings included in the National Recording Registry more broadly accessible for research and educational purposes and to generate public awareness and support of the Registry and the comprehensive national sound recording preservation program established under this subtitle.
Subtitle C--National Recording Preservation Board
The Librarian shall establish in the Library of Congress a National Recording Preservation Board whose members shall be selected in accordance with the procedures described in section 122.
122. APPOINTMENT OF MEMBERS.
(a) Selections From Lists Submitted by Organizations.--
(1) In general.--The Librarian shall request each organization described in paragraph (2) to submit a list of three candidates qualified to serve as a member of the Board. The Librarian shall appoint one member from each such list, and shall designate from that list an alternate who may attend at Board expense those meetings which the individual appointed to the Board cannot attend.
(2) Organizations described.--The organizations described in this paragraph are as follows:
(A) National Academy of Recording Arts and Sciences (NARAS).
(B) Recording Industry Association of America (RIAA).
(C) Association for Recorded Sound Collections (ARSC).
(D) American Society of Composers, Authors and Publishers (ASCAP).
(E) Broadcast Music, Inc. (BMI).
(F) Songwriters Association (SESAC).
(G) American Federation of Musicians (AF of M).
(H) Music Library Association.
(I) American Musicological Society.
(J) National Archives and Record Administration.
(K) National Association of Recording Merchandisers (NARM).
(L) Society for Ethnomusicology.
(M) American Folklore Society.
(N) Country Music Foundation.
(O) Audio Engineering Society (AES).
(P) National Academy of Popular Music.
(Q) Digital Media Association (DiMA).
(b) Other Members.--In addition to the members appointed under subsection (a), the Librarian may appoint not more than five members-at-large. The Librarian shall select an alternate for each member-at-large, who may attend at Board expense those meetings that the member-at-large cannot attend.
(c) Chair.--The Librarian shall appoint one member of the Board to serve as Chair.
(d) Term of Office.—
(1) Terms.--The term of each member of the Board shall be 4 years, except that there shall be no limit to the number of terms that any individual member may serve.
(2) Removal of member of organization.--The Librarian shall have the authority to remove any member of the Board (or, in the case of a member appointed under subsection (a)(1), the organization that such member represents) if the member or organization over any consecutive 2-year period fails to attend at least one regularly scheduled Board meeting.
(3) Vacancies.--A vacancy in the Board shall be filled in the manner in which the original appointment was made under subsection (a), except that the Librarian may fill the vacancy from a list of candidates previously submitted by the organization or organizations involved. Any member appointed to fill a vacancy shall be appointed for the remainder of the term of the member's predecessor.
123. SERVICE OF MEMBERS; MEETINGS.
(a) Reimbursement of Expenses.--Members of the Board shall serve without pay, but may receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.
(b) Conflict of Interest.--The Librarian shall establish rules and procedures to address any potential conflict of interest between a member of the Board and responsibilities of the Board.
(c) Meetings.--The Board shall meet at least once each fiscal year. Meetings shall be at the call of the Librarian.
(d) Quorum.--Eleven members of the Board shall constitute a quorum for the transaction of business.
124. RESPONSIBILITIES OF BOARD.
(a) Review and Recommendation of Nominations for National Recording Registry.--
(1) In general.--The Board shall review nominations of sound recordings submitted to it for inclusion in the National Recording Registry and advise the Librarian, as provided in subtitle A, with respect to the inclusion of such recordings in the Registry and the preservation of these and other sound recordings that are culturally, historically, or aesthetically significant.
(2) Source of nominations.--The Board shall consider for inclusion in the National Recording Registry nominations submitted by the general public as well as representatives of sound recording archives and the sound recording industry (such as the guilds and societies representing sound recording artists) and other creative artists.
(b) Study and Report on Sound Recording Preservation and Restoration.--The Board shall conduct a study and issue a report on the following issues:
(1) The current state of sound recording archiving, preservation and restoration activities.
(2) Taking into account the research and other activities carried out by or on behalf of the National Audio-Visual Conservation Center at Culpeper, Virginia--
(A) the methodology and standards needed to make the transition from analog ``open reel'' preservation of sound recordings to digital preservation of sound recordings; and
(B) standards for access to preserved sound recordings by researchers, educators, and other interested parties.
(3) The establishment of clear standards for copying old sound recordings (including equipment specifications and equalization guidelines).
(4) Current laws and restrictions regarding the use of archives of sound recordings, including recommendations for changes in such laws and restrictions to enable the Library of Congress and other nonprofit institutions in the field of sound recording preservation to make their collections available to researchers in a digital format.
(5) Copyright and other laws applicable to the preservation of sound recordings.
125. GENERAL POWERS OF BOARD.
(a) In General.--The Board may, for the purpose of carrying out its duties, hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence, as the Librarian and the Board consider appropriate.
(b) Service on Foundation.--Two sitting members of the Board shall be appointed by the Librarian and shall serve as members of the board of directors of the National Recording Preservation Foundation, in accordance with section 152403 of title 36, United States Code.
Subtitle D--General Provisions
As used in this title:
(a) The term ``Librarian'' means the Librarian of Congress.
(b) The term ``Board'' means the National Recording Preservation Board.
(c) The term ``sound recording'' has the meaning given such term in section 101 of title 17, United States Code.
(d) The term ``publication'' has the meaning given such term in section 101 of title 17, United States Code.
(e) The term ``Registry version'' means, with respect to a sound recording, the version of a recording first published or offered for mass distribution whether as a publication or a broadcast, or as complete a version as bona fide preservation and restoration activities by the Librarian, an archivist other than the Librarian, or the copyright legal owner can compile in those cases where the original material has been irretrievably lost or the recording is unpublished.
132. STAFF; EXPERTS AND CONSULTANTS.
(a) Staff.--The Librarian may appoint and fix the pay of such personnel as the Librarian considers appropriate to carry out this title.
(b) Experts and Consultants.--The Librarian may, in carrying out this title, procure temporary and intermittent services under section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed the daily equivalent of the maximum rate of basic pay payable for level 15 of the General Schedule. In no case may a member of the Board (including an alternate member) be paid as an expert or consultant under this section.
133. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Librarian for each of the first 7 fiscal years beginning on or after the date of the enactment of this Act such sums as may be necessary to carry out this title, except that the amount authorized for any fiscal year may not exceed $250,000.
TITLE II--NATIONAL RECORDING PRESERVATION FOUNDATION
SEC. 201. NATIONAL RECORDING PRESERVATION FOUNDATION.
(a) In General.--Part B of subtitle II of title 36, United States Code, is amended by inserting after chapter 1523 the following:
``CHAPTER 1524--NATIONAL RECORDING PRESERVATION FOUNDATION
``152403. Board of directors.
``152404. Officers and employees.
``152406. Principal office.
``152407. Provision and acceptance of support by Librarian of Congress.
``152408. Service of process.
``152409. Civil action by Attorney General for equitable relief.
``152410. Immunity of United States Government.
``152411. Authorization of appropriations.
``152412. Annual report.
``Sec. 152401. Organization
(a) Federal Charter.--The National Recording Preservation Foundation (in this chapter, the `corporation') is a federally chartered corporation.
(b) Nature of Corporation.--The corporation is a charitable and nonprofit corporation and is not an agency or establishment of the United States Government.
(c) Perpetual Existence.--Except as otherwise provided, the corporation has perpetual existence.
Sec. 152402. Purposes
The purposes of the corporation are to--
(a) encourage, accept, and administer private gifts to promote and ensure the preservation and public accessibility of the nation's sound recording heritage held at the Library of Congress and other public and nonprofit archives throughout the United States; and
(b) further the goals of the Library of Congress and the National Recording Preservation Board in connection with their activities under the National Recording Preservation Act of 2000.
Sec. 152403. Board of directors
(a) General.--The board of directors is the governing body of the corporation.
(b) Members and Appointment.
(1) The Librarian of Congress (hereafter in this chapter referred to as the `Librarian') is an ex officio nonvoting member of the board. Not later than 90 days after the date of the enactment of this chapter, the Librarian shall appoint the directors to the board in accordance with paragraph (2).
(A) The board consists of nine directors.
(B) Each director shall be a United States citizen.
(C) At least six directors shall be knowledgeable or experienced in sound recording production, distribution, preservation, or restoration, including two who are sitting members of the National Recording Preservation Board. These six directors shall, to the extent practicable, represent diverse points of view from the sound recording community.
(2) A director is not an employee of the Library of Congress and appointment to the board does not constitute appointment as an officer or employee of the United States Government for the purpose of any law of the United States.
(3) The terms of office of the directors are 4 years. An individual may not serve more than two consecutive terms.
(4) A vacancy on the board shall be filled in the manner in which the original appointment was made.
(c) Chair.--The Librarian shall appoint one of the directors as the initial chair of the board for a 2-year term. Thereafter, the chair shall be appointed and removed in accordance with the bylaws of the corporation.
(d) Quorum.--The number of directors constituting a quorum of the board shall be established under the bylaws of the corporation.
(e) Meetings.--The board shall meet at the call of the Librarian for regularly scheduled meetings.
(f ) Reimbursement of Expenses.--Directors shall serve without compensation but may receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5.
(g) Liability of Directors.--Directors are not personally liable, except for gross negligence.
Sec. 152404. Officers and employees
(a) Secretary of the Board.--
(1) The Librarian shall appoint a Secretary of the Board to serve as executive director of the corporation. The Librarian may remove the Secretary.
(2) The Secretary shall be knowledgeable and experienced in matters relating to--
(A) sound recording preservation and restoration activities;
(B) financial management; and
(b) Appointment of Officers.--Except as provided in subsection (a) of this section, the board of directors appoints, removes, and replaces officers of the corporation.
(c) Appointment of Employees.--Except as provided in subsection (a) of this section, the Secretary appoints, removes, and replaces employees of the corporation.
(d) Status and Compensation of Employees.--Employees of the corporation (including the Secretary)--
(1) are not employees of the Library of Congress;
(2) shall be appointed and removed without regard to the provisions of title 5 governing appointments in the competitive service; and
(3) may be paid without regard to chapter 51 and subchapter III of chapter 53 of title 5, except that an employee may not be paid more than the annual rate of basic pay for level 15 of the General Schedule under section 5107 of title 5.
Sec. 152405. Powers
(a) General.--The corporation may—
(1) adopt a constitution and bylaws;
(2) adopt a seal which shall be judicially noticed; and
(3) do any other act necessary to carry out this chapter.
(b) Powers as Trustee.--To carry out its purposes, the corporation has the usual powers of a corporation acting as a trustee in the District of Columbia, including the power--
(1) to accept, receive, solicit, hold, administer, and use any gift, devise, or bequest, either absolutely or in trust, of property or any income from or other interest in property;
(2) to acquire property or an interest in property by purchase or exchange;
(3) unless otherwise required by an instrument of transfer, to sell, donate, lease, invest, or otherwise dispose of any property or income from property;
(4) to borrow money and issue instruments of indebtedness;
(5) to make contracts and other arrangements with public agencies and private organizations and persons and to make payments necessary to carry out its functions;
(6) to sue and be sued; and
(7) to do any other act necessary and proper to carry out the purposes of the corporation.
(c) Encumbered or Restricted Gifts.--A gift, devise, or bequest may be accepted by the corporation even though it is encumbered, restricted, or subject to beneficial interests of private persons, if any current or future interest is for the benefit of the corporation.
Sec. 152406. Principal office
The principal office of the corporation shall be in the District of Columbia. However, the corporation may conduct business throughout the States, territories, and possessions of the United States.
Sec. 152407. Provision and acceptance of support by Librarian of Congress
(a) Provision by Librarian.—
(1) The Librarian may provide personnel, facilities, and other administrative services to the corporation. Administrative services may include reimbursement of expenses under section 152403(f).
(2) The corporation shall reimburse the Librarian for support provided under paragraph (1) of this subsection. Amounts reimbursed shall be deposited in the Treasury to the credit of the appropriations then current and chargeable for the cost of providing the support.
(b) Acceptance by Librarian.--The Librarian may accept, without regard to chapters 33 and 51 and subchapter III of chapter 53 of title 5 and related regulations, the services of the corporation and its directors, officers, and employees as volunteers in performing functions authorized under this chapter, without compensation from the Library of Congress.
Sec. 152408. Service of process
The corporation shall have a designated agent to receive service of process for the corporation. Notice to or service on the agent, or mailed to the business address of the agent, is notice to or service on the corporation.
Sec. 152409. Civil action by Attorney General for equitable relief
The Attorney General may bring a civil action in the United States District Court for the District of Columbia for appropriate equitable relief if the corporation--
(a) engages or threatens to engage in any act, practice, or policy that is inconsistent with the purposes in section 152402 of this title; or
(b) refuses, fails, or neglects to carry out its obligations under this chapter or threatens to do so.
Sec. 152410. Immunity of United States Government
The United States Government is not liable for any debts, defaults, acts, or omissions of the corporation. The full faith and credit of the Government does not extend to any obligation of the corporation.
Sec. 152411. Authorization of appropriations
(a) Authorization.--There are authorized to be appropriated to the corporation for each of the first 7 fiscal years beginning on or after the date of the enactment of this chapter an amount not to exceed the amount of private contributions (whether in currency, services, or property) made to the corporation by private persons and State and local governments.
(b) Limitation Related to Administrative Expenses.--Except as permitted under section 152407, amounts authorized under this section may not be used by the corporation for administrative expenses of the corporation, including salaries, travel, transportation, and overhead expenses.
Sec. 152412. Annual report
As soon as practicable after the end of each fiscal year, the corporation shall submit a report to the Librarian for transmission to Congress on the activities of the corporation during the prior fiscal year, including a complete statement of its receipts, expenditures, and investments.''
(b) Clerical Amendment.--The table of chapters for part B of subtitle II of title 36, United States Code, is amended by inserting after the item relating to chapter 1523 the following new item:
1524. National Recording Preservation Foundation.............152401''.
Approved November 9, 2000.
LEGISLATIVE HISTORY--H.R. 4846:
CONGRESSIONAL RECORD, Vol. 146 (2000):
July 25, considered and passed House.
Oct. 25, considered and passed Senate, amended.
Nov. 1, House disagreed to Senate amendments. Senate receded from its amendments.
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