One of the biggest issues/problems for music libraries is the preservation of commercial audio recordings that only appear in digital and not physical format; this digital-only distribution is increasingly the case. Physical format collection and preservation is the bread-and-butter of libraries because of a concept called "first sale," which is the legal idea that once some person or organization has purchased a legally-copied and sold physical object, they can do almost anything they want with it (I’ve blogged a bit about first sale before). However, digital-only copies often come not as purchases, but controlled by legally-complex licenses which do not allow resale or storage and specifically exclude institutions such as libraries from purchasing or even downloading an inaccessible copy (a so-called "dark archive") for preservation. Further, the large corporate sections of the music industry have a track record of not caring about the preservation of their own sound recording archives, often throwing master recordings away when they are no longer profitable to keep them. In other words, if things continue the way they are, these recordings will almost certainly be inaccessible in the not-too-distance future.
A recent article in the Music Library Association’s journal Notes gives a great (or, more accurately, horrible) example of the problem. The situation involves a music library approaching a large recording company about purchasing a recording distributed only digitally:
We chose to pursue the purchase of the Los Angeles Philharmonic’s recording of Hector Berlioz’s Symphonie fantastique, available via iTunes, toward making it part of the University of Washington collection. This recording was issued online and not in any physical format such as a compact disc. In 2011, we contacted the Los Angeles Philharmonic about purchasing this recording and were referred to its distributor, Deutsche Grammophon, who in turn referred us to its parent company, Universal Music Group (UMG). UMG responded by stating that such an institutional license would not be possible. After exchanging several e-mails, UMG changed its answer, and agreed to license the material to the University of Washington Libraries, our institution, under the following conditions: that no more than 25 percent of the album’s content could be licensed, and the license would be valid for no more than two years. Furthermore, a $250 processing fee would be charged in addition to an unspecified licensing fee that would have been “more than” the processing fee. Given that the standard cost of a complete iTunes album is $9.99, we determined UMG’s offer to be unreasonable. Perhaps more importantly, having 1.25 movements of this five-part piece is useless to a library or user. We attempted to further negotiate with UMG, but our efforts were rejected (Judy Tsou and John Vallier, “Ether Today, Gone Tomorrow: 21st Sound Recording Collecting in Crisis,” Notes: Quarterly Journal of the Music Library Association 72, no.3 (March 2016): 465).Truly, the response of Universal Music Group is ridiculous.
What are the possible solutions to this problem? The article (which is available via Project MUSE, if you have access to a subscription, or in print form) details a few, most of which are pie-in-the-sky (for example, simply adding to copyright law a legal exception for libraries, which will certainly be opposed by a legislature that seems to be in the pocket of large media corporations). At the moment, the only seemingly doable solution (and not a very comprehensive one at that) is working with willing smaller, independent recording companies to create dark archives of digital files for preservation that will just sit around until the music itself becomes public domain. That may happen in around 90 years, unless copyright terms get extended again, in which case, it will be longer.
Here’s hoping we can find something better!