Folk Heritage Collections in Crisis

Table of Contents A Message from Peggy Bulger About the Symposium Keynote Presentations Article: "No Time to Dawdle" Folk Heritage Collections in Crisis (Report from CLIR) Resources for Sound Archives

Intellectual Property and Audiovisual Archives and Collections[1]

Anthony Seeger
University of California at Los Angeles

We are in the midst of an intellectual property gold rush. Thousands of fortune-seekers are trying to stake their claims to promising territory, existing claims-holders are seeking increasingly aggressive means of defending their claims, and the original owners are often being ignored. Scholars and enthusiasts whose work uses intellectual property, and archives and libraries that store it, are largely bystanders in this goldrush; but they are profoundly affected by it.   

Most archives, in particular, find themselves in the position of a horse being kicked forward and reined in at the same time. When you kick a horse and pull back on its reins, the horse gets confused and may rear, buck, rear, kick, and forget all its previous training. Faced with the tremendous challenges of preserving disintegrating collections, prodded by increasingly entrepreneurial administrations to be more self-supporting, kicked by patrons for not having more online, and reined in by concerns about copyright and ethical uses of their materials, archivists rarely kick, but we do roll our eyes in frustration, consider other jobs, and may forget what we have learned through decades of work with our collections, with depositors, with patrons, and with communities.

This is a paper about intellectual property and audiovisual archives[2] and collections.[3] It will not resolve your preservation and access problems, but I hope it will clarify them. It will not advocate any particular technological direction, because technology is changing quickly enough to make such recommendations dated between my writing them and the December conference. It will advocate that archives take proactive stances regarding intellectual property--but especially in the area of training, reviewing their own contracts and other archive forms, and carefully evaluating proposals for use of materials they hold in trust for communities, scholars, and collectors. It will advocate that archives help researchers obtain the rights they need when they do their research and to transfer those rights required by the archives at the time of deposit in a way that permits maximum access. It will also recommend that archives help artists and communities learn what their rights are and how to protect them. It will advocate that researchers and other collectors review their collections now, and take steps to resolve ambiguous rights questions. It will advocate that our academic programs focus on intellectual property as part of the study of music, folklore, anthropology, and other fields. It will also argue that archives should look at the new technologies and the new pressures placed upon archives in the light of their accumulated knowledge, their collections, and their expanding potential to have an impact on the lives of their users.

There is no question that the changes in the U.S. copyright laws, pressures to adopt emerging international copyright agreements, and pressure to extend the protection of copyright to more and more material for longer and longer periods of time have already had a significant impact on archival operations. The Internet's potential to disseminate information rapidly and widely raises intellectual property issues with an urgency they have not had before. The situation is further complicated by the age of the collections in most audiovisual archives (older rather than newer, with greater significance given to old material than to new), and by the (only slowly) changing practices of field researchers and those who collect materials and deposit them in the archives.

The issues surrounding intellectual property and audio-visual archives cannot be divorced from the specific features and objects of archives and collections. And these issues are too important to be left to lawyers alone, because they are not only legal (what people can do) but also ethical (what people should do). The interests of the large companies involved in the intellectual property gold rush are also rarely the concern of the patrons of and contributors to archives, and their opinions must be championed.

Two Kinds of Collection; Two Kinds of Challenges

Before going into my subject in any more depth, I want to make a distinction between two different types of collections, because the issues raised by each type are quite different. To a certain degree, this distinction also classifies types of archives, and it also clearly distinguishes some archives from libraries.

Commercial Recordings and Other Publications

Some collections consist largely of commercially released recordings and associated print and photographic materials. Such collections may be created from the compulsory deposit of published materials (e.g., at the Library of Congress), by the accumulation of commercial recordings for broadcast (e.g., at commercial radio stations), or by collectors who devote themselves to systematically amassing recordings of a given genre or period. Collections of 78 rpm jazz recordings. These collections have an important feature in common--the print and recent audio publications are governed by laws of copyright. The laws are reasonably clear, albeit inadequate for the digital age and our patrons, whether we like them or not. Collections of this sort can be treated in a manner similar to the way in which large libraries handle print materials.

There are some problems, though, even with commercial recordings. Prior to 1972, no national copyright law governed actual sounds on commercial recordings. The cover art, the liner notes, and the song sequence were all covered by copyright, but not the sounds themselves. Local anti-piracy laws covered the actual sounds. Also, different countries have different laws regarding the use of older recordings--thus it is possible to reissue older sound recordings in Australia or Germany that cannot be reissued in the United States.

Most archives, like most libraries, follow copyright laws carefully, because they are part of larger institutions with little reason to embark on long battles with the well-funded legal departments of large corporations. This can be frustrating for patrons, who find that such policies limit their access to and use of materials. Among the frustrations of patrons are (1) the relatively small amount of a given piece that is considered to be an idea covered by copyright; (2) the difficulty of identifying the copyright holder on material published by a company that has ceased to exist under its original name; and (3) the lack of response from many copyright owners, who often do not even answer requests for permission to use materials they control unless a lot of money is involved. Countless researchers have told me about their inability to get an answer from the major record labels when they ask to use the materials in limited educational editions, or for transcriptions of lyrics in books and journals. The arena for "fair use" is being constricted by the holders of the copyrights whenever possible. A solution similar to that of the Copyright Clearance Center, which has greatly facilitated the creation of course readers by handling clearances for many academic publications, would be a good model for easing these frustrations. However, no centralized effort has yet been undertaken to permit quick and easy use of copyrighted audiovisual materials.[4]

Individual collectors of published recordings often respond more flexibly to requests for use of these materials than archives. Under a liberal interpretation of fair use collectors can copy their recordings, which they then send to researchers who need the copy to analyze--something most archives will not do. Collectors often cite this liberty as a reason not to place their collections into an archive. There is a potential drawback, however: an individual is not an institution, and the best collections should eventually end up in institutions that will care for them over long periods of time.[5]

Unpublished Collections of Recordings, Manuscripts, Field Notes, and Photographs

Quite distinct from collections of published materials are collections of unpublished and unique materials. Such collections include the scholar's field recordings of interviews, performances, and events; the enthusiast's collections of concert tapes; and the scientist's recordings of experiments. The Archive of Folk Culture has acquired many such collections, as have the Indiana Archives of Traditional Music, and, to a lesser extent, archives at UCLA, the University of Washington, the University of Illinois, Harvard University, and elsewhere. Local community scholars, museums, individuals, and institutes of various kinds may also hold such collections.

Since the recordings have never been published, the type of use permitted for them is often unclear. Just because the collector or archivist has them doesn't mean they can use them however they wish. The following paragraphs describe some of the rights that need to be transmitted from the "artist" (the individual/group recorded for whatever purpose) and "collector" (the person responsible for making the recording and depositing it in an archive) to the archive:

Artist: To transfer rights, the artist must possess the rights to the performance. This may not always be the case. A performer might record material belonging to another group, and thus not have the rights to transfer to the collector. The artist recorded must be able to transfer to the collector the rights he or she requires for his or her project[6]                                                   

Collector: The collector needs to have the artist agree to not only make the recording but also to agree transfer to the collector the rights needed for his or her purposes. This usually means "for personal research use," but should also include "to deposit into an archives for preservation and future consultation." It would be wise to include "and for publication in print, or other media" as well. If the conditions are not agreed to, either in print or on the recording itself, it is often difficult to get them later. The collector should also find out if the person being recorded is able, within the local knowledge system, to give the rights granted with the recording. The collector should also note reservations--such as "people can listen to this song, but it can't be used for profit, because our church doesn't allow that" or "you can't publish this without coming back to me for permission." These restrictions should be noted when the recording is made, and noted when it is transferred to any institution or individual.

The archives usually receives materials from collectors rather than artists. An archives needs to ensure that it can make copies for preservation and that it can provide access to the collection, preferably in the broadest sense, using technologies both existing and as yet to be invented. If possible, archives would like to be able to permit the commercial use of the recordings, in collaboration with the collector and artist. Without the explicit transfer of these rights, including a statement that the depositor is authorized to grant these rights, the archive will find itself frustrated in its efforts to make its collections accessible. Archives need well-designed, easy-to-understand contracts that give them the rights they need, and to give the collector space to provide the information on restrictions and reservations that may have been expressed during the recording.

There are real ethical issues here. If the artist puts restrictions on something, the collector/depositor and the archives should take every step possible to respect those wishes. This may be seen as an impediment to dissemination, but it should be a fundamental tenet of archival policy.[7]

Contracts should be drawn up with the interests of all parties in mind. When I was Director of the Indiana University Archives of Traditional Music, I was frustrated by the number of collections that had been deposited with the highest degree of restriction on the whole collection. This was often because the researchers who made them wanted to publish their results before others could use their collections. They would restrict the collection, and then forget to change it after they had published their results. As part of a broad effort to improve access, I contacted every depositor we could find to renegotiate their contracts. The objective was to permit increased access to at least part of every collection, while allowing continued restrictions on material that for one reason or another should continue to be restricted. I also created a new contract that required the highest level of restriction to be reevaluated every ten years. I did not anticipate the Internet, and after my years at Folkways would probably rewrite the contract again, but I was able to improve access to the collections by retroactive contract negotiating.

The Enduring Cultural Bias of Copyright Legislation
and its Implications for Archival Recordings

The following discussion of copyright is meant to show how the existing laws came from a culturally defined idea of creativity that is not shared by most folklorists, anthropologists, and other scholars. The thinking behind the laws comes from an earlier time, filtered through evolutionist thinking and romantic ideology, and is now expressed in international legislation. Scholars and archivists alike need to recognize that they cannot simply abide by current legislation, but need to work to bring the legislation into the twenty-first century, within a post-colonial global economic system, in more than merely technological ways.

Any discussion of copyright law must be placed in the context of the societies in which the currently observed laws were developed. They should be seen as the production of a specific group people in specific societies at a particular moment in their histories. Ideas about intellectual property were further developed and codified in Europe and the United States, and have become the framework for international intellectual property law.

Today's copyright laws reveal their origins in the Enlightenment, when philosophers looked to the individual as the fundamental element of society, rather than the group. They were further developed in England and France during a period of tremendous social and political change. The laws took much of their current form in a period of increasing urbanization, literacy, and evolutionist thinking. The laws favored new creations by literate creators, printed on paper, and sold commercially to a literate public. The initial purpose of copyright was to allow the printers' guilds time to recover their investment before others could make copies of the materials. The early copyrights established the trend for copyright in the ensuing centuries: publishing companies held the protected copyright, which usually applied to print publications. After a fixed period, copyright material would enter the "public domain" and becomes available to anyone for making copies or using in other forms. This is an important part of copyright and patent law: the restrictions are temporary, to enable the creator to benefit from the creation, and after a fixed time the restrictions expire.

Any folklorist or anthropologist will immediately notice that quite a lot of human knowledge and wisdom was not included in formulations of the copyright law, among them the creations of the illiterate and non-literate, ideas created and controlled by a group rather than individuals, and the protection of knowledge not intended for commercial use. Not only were these left unprotected, they were specifically made available for creative artists to use without restriction to produce new materials that could be copyrighted. Let me give some specific examples:

1. The laws either failed to consider or specifically excluded all of what is broadly called "folklore" and "traditional knowledge." The laws controlled the right to make copies of written material, not the right to re-tell stories heard around the campfire or in the local pub, or the right to learn a song from a songwriter in a local, oral tradition. This kind of knowledge, often labeled "collective" knowledge or considered "traditional," was placed in the "Public Domain" where creators of new works could freely use it.
2. Laws carefully protected the rights of individual, literate composers in the name of that composer (or his or her publishing company). But laws did not recognize the possibility that a lineage, clan, village, church, or some other social group (other than corporations, which were recognized) might possess knowledge that should be protected in the name of the group.[8]
3. A composer could make some changes in an unpublished "traditional song" and copyright it in his or her name--without any consideration of the original performers of the song.

In sum, intellectual property legislation encouraged, and continues to encourage, the creation of new things and creates a disincentive to value traditional performances--because the creations of traditional artists are not "valued."  This value is often quite concrete: a popular music songwriter can make money from his or her song; a traditional artist who performs an equally moving song cannot receive any songwriter's royalties.

Over the centuries, music publishing companies have extended the life of their copyright protection (originally only a few years, now seventy), and to reduce the amount of material in the "public domain" and restrict "fair use" of intellectual property in order to control it. The most recent revision of the U.S. copyright laws included an extension for company control, and few concessions to the rights of artists, communities, the non-literate, or the traditional.[9]

There is a colonial aspect to the copyright laws. A creator takes unprotected, public domain materials and creates something "new" from them that can be protected. Anyone who wishes to use the adapted original materials must pay the "improver" for them, not the original creator or his or her heirs. The issues have become particularly acute in the area of pharmaceuticals. Here, the knowledge of traditional curers is considered "public domain." But once that knowledge has been taken and turned into a product, the traditional knowledge bearer receives nothing, and the pharmaceutical company may make millions over the "discovery" which was in fact something learned from a member of another community. Similar things have happened in music, when a popular performer takes "folklore" materials from books and recordings and creates a popular arrangement.

Are There Other Formulations of Intellectual Property?

Many societies have extremely elaborate concepts of ownership and control of knowledge, many of which bear little resemblance to the European/North American ideas of copyright. Among the more elaborate are those found in the Melanesia. For example, on Vanuatu, payments must be made to original producers or their community for such things as the use of a particular design in wood carving, or the wearing of a certain flower. The archive of the Vanuatu cultural center has a "Tabu Room" where restricted recordings are placed to demonstrate their secret and restricted nature (Amman 2000). Australian Aboriginal communities often restrict knowledge of certain materials to a certain group of people (a clan, a phratry, a gender). To the rest of them the information was secret. Such restrictions are also common in American Indian communities.  Such examples are further evidence of the cultural biases behind European-influenced copyright law.

Throughout the world today, traditional musicians, the subjects of interviews, and the objects of photographs and films increasingly feel that they are being deprived of income through an unjust copyright system. They see how those whose rights are protected can become very wealthy, while those whose rights are not protected appear to remain poor. They find it increasingly difficult to find successors who will carry on their arts, partly because no one can make a living at it. And one reason they cannot make a living is that their art is not recognized by, protected by, and paid for through copyright law and the equitable distribution of royalty payments.

Some countries, especially former colonies of Europe, are making an effort at the national level to protect local traditional performances. This has usually involved the creation of a "paid public domain" arrangement in which no music may be used for free: if there is no named composer, then the payments must be made to the nation. So far, however, these funds have not been distributed to traditional communities or artists in any systematic way. These countries are also leading an international movement to fundamentally change the existing copyright laws to include what is now deemed to be traditional, unprotected, knowledge. Both UNESCO and the World Intellectual Property Organization (WIPO) have been investigating and preparing recommendations for the protection of what is variously called "folklore," "intangible cultural heritage," and a number of other terms. Their work is far from complete and may result in other difficulties outlined by Michael Brown (Brown 1988), among them a "reification of authenticity," conflicting regarding "hybrid" forms, etc.

What does the history and current status of copyright law have to do with Archives?

Quite a lot. Imagine[10] that the maker of an X-rated film wants to use a recording of a traditional religious song in a sex scene in a bordello. The best performance of this song is found in your archive or collection. The producer offers you $20,000 for the use of the recording in the film and the accompanying sound track (an enhanced CD with explicit photographs to browse while listening to the music). What should you do? Should you make a digital copy and use the $20,000 to fund badly needed preservation? Should you refuse to do so and confirm patrons' views of archives as places where material is placed never to be available to anyone again? What would you do if the film were a documentary history of bordellos, no money was offered, but the music was desired to portray life in a bordello next to a church on Sunday morning? Would that be any different? You certainly shouldn't start by contemplating national copyright codes.

The place to start, of course, is with the original recording and deposit agreements you should have in your files. What did the collector and church community agree to at the time of recording? What did the collector require the archives to do when the recordings were deposited? Many of the holdings in research-based archives are on the one hand unprotected "Public Domain" materials, and on the other hand to some degree governed by local ideas of ownership and propriety. The archives' rights to use the materials are often further affected by restrictions placed on the use of the materials by the collector or donor of the materials.[11] This places the archive in a position of arbiter between the traditional ideas of ownership, the restrictions of the donor, and the current copyright law.

For these reasons, archives have to be especially careful to consider the rights of the original performers, as well as the rights conferred by law, before entering into any agreement. It might be perfectly legal for a film company to play a traditional religious song in a scene filmed in a bordello, but would it be ethical to use the one you have? Would it respect the original intent of the recording and the reason for its deposit in an archive?

It is precisely the ambiguity of the archives' holdings that should place them at the forefront of the debate about the ethics as well as the legal implications of the copyright code. I am particularly happy to find the Library of Congress the locus of this discussion of copyright laws. The issue is too important to be left to lawyers, and the ethical issues are highlighted every day for archivists as they deal with requests for a huge variety of uses for their materials.

Who Is Our Audience? Why are our Collections Important?

What archivists know, and few others seem to realize, is that archives can be places of discovery, excitement, and joy. The public image of archives is all too often of a dark place where one sends things one doesnt need anymore. But when I was directing the Indiana University Archives of Traditional Music, I was impressed by the number of musicians that came to listen and learn from the collections; by the request from the Fox Indians for copies of some cylinders so they could perform forgotten songs; by African archives' requests for copies from our collections to enable African countries to possess the documents of their own musical heritage.  Recalling Karl Marx's statement that "just when [people] seem engaged in revolutionizing themselves and things, in creating something entirely new, precisely in such epochs of revolutionary crisis they anxiously conjure up the spirits of the past to their service" (Marx 1972 [1851]: 437),[12] I felt that we were supplying communities around the world with the tools of their self-determination. Through documents of their own history, they might be able to make major transformations or establish meaningful continuities.

As a scholar, I have been humbled by the significance of some of the by-products of the research of anthropologists and folklorists. One hundred years after their publication, few articles in the Journal of American Folklore or the American Anthropologist are of more than minor interest. The recordings made by some of those authors, however, often continue to be very exciting to scholars, musicians, and members of the communities in which they were recorded. Over time, it may be the collections we have made, rather than what we have done with them, for which we are most gratefully remembered. This requires many of us to rethink our priorities and to pay attention to the fate of our recordings, photographs, and unpublished materials.

In reacting to the various pressures on our institutions and personal collections, it is essential for archives and collectors to remember the future audiences for them and the potential impact of the materials we have. It is well to recall the trust in which we are holding them. Our ethical treatment of the artists and the communities from which they have come must be of primary importance in our positions on intellectual property, in our decisions about preservation, and in our strategies for institutional survival.[13]

Archives, Multimedia, and the Internet

Clearly, the emerging and rapidly evolving technologies of multimedia and the Internet offer archives the chance to maintain the unity of their collections and yet make them available on a scale previously unimagined. It allows us to facilitate access not only to information about our holdings (through online catalogs) but also to many of the materials themselves. The technology, however, is far ahead of the archives' ability to use it. Our collections are rarely ready for the kind of wide access that is potentially available. One of the ways in which they are not ready is that we usually do not have the right to distribute them that way.

We can look to technical solutions, but many technical solutions--like audio streaming to avoid copying--are surpassed by technologies that defeat them more quickly than we can adopt them. It is also possible that a technologically superior system will not become the standard one, because the consumer market continues to influence the media received by most archives and the recordings made by most collectors. In spite of this, archives need to continue to experiment with new ways of reaching the people who will use and benefit from their collections. I recommend non-exclusive contracts, however, and experiments with the parts of the collection for which rights are quite clear.

As we experiment with different systems for digital distribution, we can be reviewing our contracts, acquiring collections with more clearly established dissemination rights, and working to bring the needs of our peculiar institutions to the attention of lawyers and lawmakers, to scholars and the people they record, and to communities and their members. The next section makes a number of specific suggestions; readers are welcome to contact me with more suggestions.

Steps to be Taken by Archives, Collectors, and Institutions
To Facilitate Our Use of New Media

Archives alone will not resolve the general issues of intellectual property, nor will they even resolve their immediate problems with acquisitions and dissemination. Access to research-related collections will have to be ensured through a broad collective action and changes in the public's attitudes toward information. It is difficult to predict how this will play out in the coming years. One thing is highly probable, however: there will be an enduring need to clearly establish what rights are being transferred to collectors and archives. Given this probability, and the problems faced by archives and collectors today, here are a few suggestions for archives, collectors, and professional organizations.

1. Archives should bring the issues of access, preservation, and dissemination to the attention of colleagues in the disciplines they serve. They should argue for ethical as well as legal and practical approaches to the materials in their possession.

   a. The archiving committees of the Society for Ethnomusicology and the American Folklore Society are good forums for discussing these issues, as are specialized professional organizations such as International Association of Sound and Audiovisual Archives (IASA).

   b. Archives and collectors should be involved in local discussions regarding intellectual property and should contribute their own expertise to such discussions.

   c. Archives should provide rights information and rights transfer forms to researchers before they start their work, and should pay careful attention to ethical issues when materials are deposited.

   d. Archives should also mobilize to help artists and members of communities that are being recorded understand how to protect their rights. At the same time, archives should educate members of communities about the uses of archives and show how properly written agreements can both protect the community members and permit the archives to do its work.

2. Archives should be very cautious in signing agreements for the use of their materials. Most such agreements require the archives or collector to affirm that it controls the desired rights, and most archives do not have a paper trail to prove that should the issue become contested.

   a. Archives might want to consider reviewing their collections and creating new contracts for collections they would like to make widely available through digital archival distribution.

   b. Archives might consider collaborating in creating standard licensing agreements for archival material, with the assistance of legal counsel, that protect their interests, as well as those whose materials they hold.

   c. Archives might want to review their acquisitions policies. If they have a regular supplier of materials (such as recordings of university concerts, for example) they might want to ensure that all the appropriate rights have been transferred to the archives for the desired use.

3. Archives should take advantage of those technological developments that support their goals, within the limits of sound policy and ethical practice.

4. Technological solutions to intellectual property issues have had a short life, however, and will probably not resolve access concerns by themselves.

   a. Collection samples, in the form of 30-second audiovisual segments and low-resolution photographs, appears to be commonly accepted, although this may change.

5. Archives will certainly face some censure by insisting on following both ethical and legal guidelines.

   a. Archives should take the lead in deflecting criticism by using brochures and Web sites to explain the reasons for their policies on intellectual property, and why they have developed their specific forms and policies.

   b. Archives should engage their critics in debate.

   c. Archives and other institutions should make their opinions and expert knowledge available when new regulations are being created covering materials customarily held in archives.

6. Collectors should review their collections carefully for material that is confidential or secret, or that reveals culturally restricted information. If such materials are found, collectors should do the following:

   a. Contact the artists, performers, or speakers and ask for written authorization to use the materials, to deposit them in archives, and to make them available for nonprofit educational use of all kinds in the future.

   b. When preparing materials for deposit in an archive, inform the archivists in writing of any sensitive materials for which written agreements have not already been obtained, with suggestions on how to handle the materials.

   c. Review new contracts with the archives or other receiving institutions very carefully, to be sure they accord with the implicit or explicit agreements through which the materials were collected.

   d. Learn about how to obtain rights to materials collected in the field, and how to assist community members with rights issues before returning to the field.

7. 7. Universities should train researchers in appropriate methodology for recording and receiving rights to use cultural materials. Such training should be part of all research methods classes, and it should be available to scholars of all ages.

   a. All researchers should go to the field with rights information forms in English and the local language, and with video cameras. They should have enough training to be able to explain the forms to the people they work with.

   b. All students should be exposed to the issues of intellectual property before they start research of any kind, to avoid perpetuating a tradition of poor documentation and permissions.

I started this paper with the image of a confused and frustrated horse simultaneously kicked and reined in. When a horse is kicked and the reins give it a direction to go, it will take off. I hope that archives, frustrated by the lack of direction so far, will move quickly and decisively and become proactive in the area of intellectual property, always keeping in mind the ethical obligations of their materials, and their long-term importance to the communities whose traditions they preserve.

Recommended Reading

There is a huge literature on intellectual property, ranging from "how to get your song published" to detailed discussions of a variety of national and international agreements. As of this writing, an outstanding resource for information related to traditional music is the Web site created by Anthony McCann, "Links In Some Way Relevant to my Thesis on Copyright and Traditional Music." It can be viewed at:

http://www.beyondthecommons.com/iff2003.html

An informative and enjoyable book on the general issues of intellectual property today is James Boyle's Shamans, Software, and Spleens (Harvard University Press 1996). The UNESCO Copyright Bulletin 32 (4) has several articles on the intellectual property law and indigenous peoples, and is representative of the issues being raised in that body. A lively debate on the subject by a group of anthropologists can be found in the article by Michael Brown, listed below.

The literature within audiovisual archiving is considerably smaller. It includes a series of articles in the publications of the Association of Recorded Sound Collections (ARSC), some articles in the IASA's publications, and those listed below.