Fair Use Week 2023 (10th Anniversary): Day Five With Guest Expert Kathleen DeLaurenti

I am delighted to kick off the final day of the 10th Anniversary of Fair Use Week with a post from a copyright music expert. Join Kathleen DeLaurenti as she explores “Musical Fair Use in the Age of Digital Access” – Kyle K. Courtney

Musical Fair Use in the Age of Digital Access

By Kathleen DeLaurenti

In their 2004 edited volume, Music and Copyright, Lee Marshall and Simon Frith suggested a future that looked a lot like the film The Fifth Element: something akin to blockchain would stamp and track every interaction you had with digital music, using a system of micropayments to tally, charge, and penalize non-payers for access to music. Thankfully, our system of compulsory licensing has continued to find ways for musicians and fans to share music without turning us all into cyborgs. Yet since the Copyright Act of 1976, changes to the law have been largely in response to the interests of rights holders, leaving libraries and music collections to navigate a different kind of dystopia.

We often talk about fair use and music in the context of sampling. And while sampling is an important part of the music copyright landscape, music collections and their users have quietly been employing fair use in other ways for decades. Performers who are using scores in collections for private study often format shift to a print or digital copy to fully annotate their work. Accompanists might digitize by creating a single-sided copy to avoid an impossible page turn. Students working in new media might use physical collections in digital media projects that require them to rescore film scenes or understand the fundamentals of making sample-based music. 

Fair use continues to bolster Section 108 uses for music collections: 108(i) limits many Section 108 activities for musical and audio-visual works. Without access to these exemptions, libraries and cultural institutions have often had to make fair use assessments for preservation and access activities. Fair use remains a critical tool for preserving and providing access to our musical cultural heritage.

But before the Music Modernization Act (MMA) went into effect in January 2019, sound recordings made before 1972 did not have clear fair use protections. In fact, prior to the passage of the MMA in 2019, pre-1972 sound recordings had no federal copyright protection at all. This also meant there was confusion and uncertainty about whether or not institutions could take advantage of federal copyright exceptions, including fair use. These recordings traditionally have not enjoyed robust digital preservation, either; in 2008, Universal Music Group (UMG) lost as many as 175,000 master recordings in a single fire that destroyed their entire physical archive of master recordings. 

And unlike paper, physical audio and visual media formats deteriorate. Quickly. Sometimes very quickly. While vinyl is a fairly stable format, each play introduces discrepancies into the actual disc that impact future playback. Magnetic tape, the recording format of choice for most of the 20th century, remains at risk of being mangled in playback equipment, being demagnetized through accidents, or in some cases literally disintegrating on the shelves through a phenomenon called “sticky-shed syndrome.” It’s hard to quantify the scale of audio-visual media that we’re losing. The Library of Congress National Jukebox only has about 10,000 recordings represented there for preservation and future access. It’s estimated that in 2022, the first year sound recordings went into the public domain, that copyright expired on more than 400,000 recordings made before 1923. 

In addition to gaining certainty with fair use in engaging in preservation and access activities, libraries garnered another important legal right: a rule construction that expands Section 108(h) to apply to all sound recordings made before 1972

You might ask me “Kathleen! That’s all great, but what does that have to do with fair use?” One perhaps unintended consequence of this provision – which gives broad latitude to reproduce, distribute, display or perform sound recordings – is that Section 108(i) still restricts that copy and lending activity for musical compositions. Suppose you discover a reel-to-reel tape in your archival collections of Billie Holiday performing “Strange Fruit” at the Café Society in Greenwich Village in 1939: At first, it might seem like you would be able to widely share this 1939 recording under the new provisions in the MMA. However, the musical composition remains copyrighted until 2033

This means that for many Section 108(h) activities – when our institutions want to share unique recordings with researchers, educators, and scholars – we may still need to make fair use assessments where the other exceptions are still 

Fair use is also a critical tool for music collections who may want to implement Controlled Digital Lending (CDL) for access to physical music collections, particularly in cases where students may need access to musical scores for course-related research and study. There are very limited options for institutions who want to acquire musical scores for digital access through purchase or license. Unlike the sciences, social sciences, and humanities, open access isn’t a workable solution for access to musical scores that are still under copyright; in fact, new music is more likely to be unavailable even for purchase, with access limited to rental copies. (Scores for film music, which are often works for hire, are almost never released for purchase to anyone). 

However, fair use and CDL can fall short for performing musicians. During the COVID-19 pandemic, several institutions who were taking advantage of the HathiTrust’s Emergency Temporary Access Service (ETAS) heard many complaints from users that the view-only access limited their ability to critically annotate, analyze, and study musical works. Unlike traditional texts where you can take meaningful notes separately in your personal notebook, musical analysis employs specialized annotations that are only meaningful in tandem with the original music notation and makes no sense when separated. 

In response to this, the Music Library Association recently issued a Model Purchase and License Agreement for Digital Scores. Without clarity around digital first sale, it continues to be important to clarify exactly how an institution will use born digital content. We hope that independent composers will also employ their own custom versions of this agreement in their online shops, making it easier for institutions to acquire, preserve, and provide access to these important new works.

The passing of the MMA has provided opportunities for music collections to engage even more deeply in critical preservation and access activities. But until we advance the policy changes we need for libraries to collect and share (and make fair use of!) digital collections, we hope tools like the MLA’s Model Purchase and License Agreement for Digital Scores will allow libraries to continue to collect important works and prevent a gaping chasm in the future cultural record.

Kathleen DeLaurenti is the Director of the Peabody Institute of the Johns Hopkins University’s Arthur Friedheim Music Library. She previously served as the arts librarian, open education coordinator, and scholarly communication librarian at the College of William & Mary. She is currently the co-chair of the Music Library Association (MLA) Legislation Committee where she has also served as chair of the Best Practices for Fair Use in Music Collections task force.