Donation of copyrighted works (e.g., sound recordings) to public domain possible?

Everyone,

It recently was said (and I consider it a revelation) that today's "Big Three" recording companies (Sony, BMG and Vivendi/Universal) who
(reputedly) own the copyrights to the performances of most pre-WWII
sound recordings, are very resistant to license them out to third parties for re-issue because they simply do not know the contract royalty history which may exist for these older recordings. It appears safer for them to simply not grant permission for re-issuing considering the royalty revenue will be so meager to justify doing a legal analysis for the more obscure recordings -- it's simply not profitable to them and may expose them to significant liability.

Unfortunately, the recording companies of the 1920's and 30's were quite lax in keeping accurate records of any royalty contracts they made with recording artists and musicians, and since the ownership of these recordings have changed hands a few times over the years, what little paperwork was there has totally disappeared -- on both sides. Thus, there is a fear that the estate of some older, obscure musician or band leader may come out of the woodwork and sue for royalties or similar compensation. It's an annoyance the recording companies simply prefer to avoid.

The real effect of this is that a huge part of our musical heritage, literally hundreds of thousands of recordings, is defacto "locked away" from the public in the U.S. (supposedly all sound recording performances actually issued before 1953 are public domain in Canada, Australia, England and elsewhere, so I've been told, but that's a separate issue.)

This got me to thinking the following:

1. The recording companies who hold this catalog of material may themselves find it an albatross around their neck. The cost of archiving and maintaining the original metal parts to these older recordings probably far surpases what they ever will get out of it themselves by re-issuing, or authorizing for re-issue, the tiny fraction which has wide-enough popularity to take any chance on.
2. If the recording companies are able to donate this material to either the public domain (if possible) or to a non-profit, they may be able to claim a corporate tax deduction whose amount may far surpass the profits (if any) they will ever derive from this catalog before it lapses into the public domain in the U.S. Or, they could sell their rights to it for $1 to someone and claim a significant loss for the tax year. (and many other possibilities.)

   An added benefit for the recording companies to donate this material    so it becomes publicly available, is the positive PR they will get    in doing so (and the recording companies, as represented by RIAA,    are certainly not well-loved these days and in need of anything    positive in the public's eyes), and it will help to defang arguments    that longer copyright terms will inevitably keep material locked    away from the public for decades, if not centuries.

Item #2 is the one which interests me. However, from my lay perspective I sense that at present U.S. law (and/or our international treaty obligations) does not allow donating copyrighted works to the public domain. The rights of the recordings could certainly be donated to some non-profit or similar organizations, but then there are the potential liability issues (the "encumberances") to the donor and donee alike regarding the unknown 60-70 year royalty contractual issues as noted above which could jump out of the woodwork. And then there is the aspect of corporate tax deductions, etc., to consider.

So, this seems to indicate to me that Congress needs to step in and pass legislation which would allow (and encourage by appropriate tax deduction allowances or other mechanisms) copyright owners to donate certain older works either to the public domain or to an independent 501c(3) non-profit. In addition, any potential contractual encumberances would be declared null and void. Other terms may be necessary such as a public comment period (so estates can file their royalty contract claims which would be honored in some fashion, maybe by a tax deduction, if they can prove it with authentic documentation.) No doubt there are other possible mechanisms to consider.

(Interestingly, those in Congress who wish longer copyright terms may
see this as a positive thing to do since it defangs some of the arguments against copyright term extensions, such as longer terms locking away material from public access, and that it becomes much more difficult to track both copyright ownership and contracts related to copyright ownership, such as royalties -- which is exactly what we see here for the older recordings.)

So, I'm hoping this will encourage some "theoretical" legal discussion as to the correctness of some of the comments mentioned herein, and to ponder the general idea of donation of copyrights to the public domain and related issues.

Thanks.

Jon Noring Received on Wed Aug 20 2003 - 20:55:09 GMT