By Davidson, Mary Wallace | Notes, March 2000 | Go to article overview
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Davidson, Mary Wallace, Notes

Most music librarians have a working knowledge of the United States Copyright Law with respect to situations that arise in the library, especially with respect to the use of musical works captured on paper, recordings, and film. Few at the moment, however, have had to tangle with legal issues of licensing electronic reference sources, storing and streaming digitally formatted sound to computer workstations, or providing library materials legally for distance-learning classes. Fewer still know whether they are Online Service Providers (OSPs), as defined by the Digital Millennium Copyright Act of 1998 (DMCA), [1] and if they are, what rights and responsibilities that definition imposes. As we cope with this, and the many other public laws now so rapidly being sponsored and passed by members of Congress, we risk losing sight of some significant historical threads to guide us into the future.

The United States Constitution provides that "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." [2] The framers fortunately understood two conditions necessary for fostering the natural growth of artistic and scientific culture: (1) creative individuals must have some economic incentive to pursue their craft, and (2) their successors must be able to use the results as seeds for new growth while those seeds are still alive.

The first federal copyright law passed by Congress in 1790 protected only published books, maps, and charts for fourteen years, with option for the same period of renewal. Published music was not protected until the first general revision of this law in 1831 (when the first term was extended to twenty-eight years), and dramatic works not until 1856. The second general revision, in 1870, added published works of art and the rights of authors to create certain derivative works. It also centralized deposit and registration in the Library of Congress (rather than with the states). The Copyright Law first protected music in public performances in 1897 and certain kinds of unpublished works in the third major revision of 1909. Motion pictures (previously registered as photographs) joined protected formats in 1912. Limited federal copyright protection was finally granted to sound recordings (fixed and first published on or after 1972) in the most recent thorough revision of the law in 1976, [3] which also provided for all unpublished works. Computer programs first entered the law at the end of 1980, [4] followed by the Semiconductor Chip Protection Act of 1984 [5] and the Computer Software Rental Amendments Act of 1990. [6] The Audio Home Recording Act of 1992 [7] clarified the legality of home taping for private use while imposing royalties on the sale of digital audio recording devices.

The law did not concern itself with "moral rights" until 1992, [8] although these often take precedence over copyrights in other countries. Various international agreements have extended protection to works published outside the United States, beginning with the Universal Copyright Convention in 1952. The United States' adoption of the earlier Berne Convention in 1989 had a greater effect, particularly as a result of the World Intellectual Property Organization Copyright Treaty in 1996, to which the United States is also a signatory. The Uruguay Round Agreements Act of 1994 [9] restored copyright protection in the United States to certain foreign works that had been protected in the source country (e.g., the former Soviet Union) but not here.

The DMCA and the Sonny Bono Copyright Term Extension Act of 1998 (known as the "Sonny Bono Law") [10] change the law in matters of potentially great significance to libraries. [11] Among other provisions, the DMCA revises section 108 to allow what has been the practice for many years (three preservation copies rather than one), and also specifies that preservation copies may be digital if they remain within the library.

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