2.4.1 Archives and Copyright Owners

Published sound recordings are in many cases the product of a commercial industry, which has as its primary purpose the creation of profit thorough the sale of recordings and through charging license fees for the use of recordings. Traditionally, the industry has been comprised of record and publishing companies, who invest in the recording, production and distribution of content, and authors and performers who generate content. In return for their investment, the companies have historically assumed ownership or control of the copyrights of authors, performers and recordists through contractual arrangements. Copyright collecting societies may act as central clearing houses for collecting and distributing licence fees for routine uses of sound recordings, such as public performance and broadcasting. Even recordings that were not the product of a commercial industry, or were never published, are usually covered by some kind of copyright laws.

Copyright legislation varies from country to country, but in general, through the operation of international treaties, it gives copyright owners an almost exclusive right to publish, reproduce, publicly perform or play, communicate, adapt, broadcast, and in some cases rent, their copyright materials. In many countries there are public interest exceptions allowing specific uses such as preservation, educational instruction, critique and news reporting, however these are typically very specific and do not overcome the conflicting interests of copyright owners with exclusive rights to control the exploitation of their material and archives with the objective of making material freely accessible.

First and foremost, archives have an obligation to comply with copyright and related law. This requires a high level of awareness of the relevant law, and a system of controls within the archives operating procedures which limit the possibility of material being inappropriately used within the archive or incorrectly supplied to a third party.

Archives can position themselves to manage copyright issues effectively by obtaining as much information as possible about the ownership of intellectual property in works represented in their collections, ideally from the point of acquisition. Archives can add value to services they offer to clients by making rights information publicly available, provided that it does not conflict with obligations of privacy and confidentiality. Where archive users wish to make use of copyright material, an archive can minimise the risk of infringement and maintain positive relations with donors and depositors by requiring the users to pursue copyright clearances.

Archives should recognise that copyright is complex, and that ownership may not always be clear. Where there are competing claims for copyright in material held by an archive and the archive does not claim an interest, the archive will most likely achieve positive stakeholder management outcomes by remaining neutral. Permission may need to be obtained from all competing claimants before access is provided to the disputed material.

Activities within archives such as digitisation or preservation copying can potentially be in breach of copyright law. Where no copyright exception applies or copyright owners have not given an archive permission to use the material as desired, stakeholder problems and legal action can be avoided by taking alternative approaches that do not breach copyright law, for example, purchasing additional copies rather than creating copies in house. Where no practical alternative which does not breach copyright law exists archives may be able to negotiate blanket agreements or approval for essential preservation work with industry bodies.

In some jurisdictions, archives can access exceptions within copyright law to support the preservation of heritage recordings and the provision of access for research and educational purposes. In exercising these exceptions archives should ensure compliance with all the relevant criteria that allow the exception. Archives should be open and transparent in their application of any exceptions. The archive’s policy on use of exceptions should be publicly documented, and disclosed to individual copyright owners or to industry groups as relevant.

Archives have a moral obligation to ensure that material which is in Public Domain remains in Public Domain after digitisation. Public Private Partnerships on digitisation should not impose new rights or change of ownership on material that is free of copyright restrictions.