There’s another scenario I want to examine, which covers the ground of a legally gray area when it comes to copyright law and fair use. Morally, I think these scenarios are okay, but it’s kind of an examination more than anything about how our law doesn’t take matters of exceptions into consideration very well. As a result, you get a lot of scofflaws who are breaking the law (voluntarily or otherwise) either because of ignorance or exercising what only seems fair, based on the commercial options presented them.
In fact, that’s where the real problems are created, when copyright and commercialism intersect and they don’t exactly meet up. Specifically, the question I want to ask is, what would be the right thing to do when a work has never commercially been available, or has fallen out of publication completely.
While the two situations are slightly different, they both deal in the same area — archiving our public knowledge as a culture. First, a throwback to an uncommon issue, one that I’ve personally run into quite a lot.
I’m a big fan of old time radio — radio shows that were broadcast over the air a long, long time ago, in the 1930s, 40s and 50s. There is, without a doubt, some really great stuff that is out there, an entirely dead medium for the most part, dramatized storytelling, that has been pretty much ignored since it’s original broadcasts. The problem is that this stuff is so old, and that recording this stuff for commercial use wasn’t even a consideration in the commercial world back then. It is, in fact, a miracle that recordings of this stuff even exists at all. A lot of stuff was on the airwaves once, never to be heard again.
An analogy comparing today’s technologies may be helpful. Imagine that we had all our television broadcasts, satellite and movies as outlets to consume entertainment, but there was no way to record any of it. No DVRs, no VCRs, no DVD players, personal video cameras, Blu-Ray, CDs, cassette tapes or DVDs. The television show, live event or movie release would have its short day in the sun, its fifteen minutes of fame, and then disappear from the public mindset completely, and only live on in memory. That’s exactly what has happened here, with old time radio. It was all produced with no expectation or option of being recorded and redistributed later. It was flash-point entertainment.
Now one effect of there being no option for public recording and copying and such is that the question of what the copyright status of these old entertainment shows is largely in question, across the board, for the entire medium. If there’s no way to even create a copy, why bother with strict copyright laws or even securing a copyright in the first place? As a result, the question of *who* owns the copyright on the original recordings is largely in question for almost all the series. There have been cases where it’s properly been tracked down and secured, but these are by far the minority. And even then, the owners generally shoot themselves in the foot and insist that no-one can copy them without their permission, thus removing them from people’s archives and getting passed over for the other stuff anyway. It’s ironic how people often exercise copyright law in an effort to prevent “piracy”, only to ensure obscurity.
So, the question for this scenario is — what’s the gray area when there is no clear cut status on the copyright of a large part of media. Is it okay to archive, download and share? Most certainly, it’s public domain, either because copyrights were never secured or re-applied for. Either way, though, nearly all of it was never commercially packaged and released anyway, and so there’s never been a legal way to obtain copies.
There are, of course, business enterprises out there who will sell you the recordings on cassette, CD, MP3 or otherwise, but that doesn’t necessarily mean that the question of copyright has been resolved in those cases. For instance, you can go look at archive.org for lots of old films that have been put in public domain, and still go buy them on Amazon.com on DVD from a range of distributors. The fact that a lot of old time radio is out there, both commercially and free, indicates that it’s clearly not a solid situation that has been resolved. And I’m not talking about underground torrent, warez and other seedy sites that host this stuff, but rather lots of outlets that have been around for years that have this stuff for free, and haven’t been shut down. I realize that’s a poor argument — assuming that someone hasn’t broken the law because they haven’t been prosecuted — but it seems to support my point that, if there’s no way to get it through the more “proper,” common commercial channels, it seems perfectly reasonable to just get it however you can.
Looks like I’m gonna have to split my second case up again, in another post. This one’s already gone a lot longer than I expected.
Oh, and for the record, I have a large collection of old time radio.