The Bittersweet National Jukebox
The Bittersweet National Jukebox
The Bittersweet National Jukebox

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    If you have not had a chance to play with the Library of Congress’ new National Jukebox, stop reading this post and do it now.  The Jukebox is an amazing project that makes over 10,000 historic sound recordings from 1901 to 1925 available online.  These recordings, which span genres from opera to whistling (its own category) to novelty songs to speeches and everything in between, are fantastic examples of what is possible when you combine rich historical archives and the internet.  However, this project comes with a curious asterisk.

    On the About the National Jukebox page, there is a mention of a gratis license issued to the Library of Congress by Sony Music Entertainment to stream the recordings.  Kudos to Sony for partnering with the Library and granting the free license.  But why is the license needed in the first place?

    After all, a quick glance at your favorite online copyright term calculator (like this one) might suggest that most of these works should be in the public domain by now.  Works registered and published in the US before 1923 are in the public domain.  These recordings come from 1901 to 1925.  Besides needing a license for the works from 1923, 24, and 25, and Sony’s cooperation in actually digitizing the master recordings, what is the license for?

    Closer examination of the calculator would reveal that sound recordings are special cases.  While copyrights, by and large, are purely federal concerns, before 1976 federal copyright law did not cover sound recordings (for an interesting history of music entering the recorded era that sheds light on why this sort of made sense at the time, check out Albin Zak’s book “I Don’t Sound Like Nobody,” or listen to this interview from the podcast).  Instead, sound recordings from before 1972 are covered by a patchwork of state common law.  Federal law will preempt state common law, thereby placing the recordings in the public domain, but that does not happen until 2067.  As a result, it will be a long time before anyone can access these recordings without someone’s permission. (Addition: The Copyright Office is looking at the relationship between state and federal copyright law for sound recordings now – click here to learn how to get involved).

    While this is frustrating for sound recordings, it illustrates a larger problem with long copyright terms.  People are rightly excited about being able to access these works through the National Jukebox. Unfortunately, because the works are still protected by copyright, only an institution like the Library of Congress has the clout to collectively license them for free.  It is unlikely that anyone else would have the time, money, or inclination to work out a license to publicly stream Burt Shepard performing his monologue “The boy and the cheese” (sorry Burt).  Even if they did have the time, money, and inclination, it is unlikely that it would be worth the rightsholders’ time to engage in the one-off negotiation.

    While some works are valuable long after their original creation, for better or worse most of them are not.  Today’s ever-expanding copyright terms do not even try to distinguish between the two.  Locking most works up behind a gatekeeper does not enrich the creator (or the creator’s heirs) so much as it prevents anyone from discovering the work in the first place.  Even if a low cost license could be had, the process of obtaining it (or even determining who to obtain it from) makes it unlikely to be worth the effort.

    And so, the National Jukebox is bittersweet.  It is a great resource, but largely stands alone.  Instead of being the belle of the barber’s ball, it is stuck playing the all alone waltzAin’t that a shame.