It is outside the scope of this article to inquire in great detail as to the various ramifications of copyright as they apply to posthumous custodial/archival considerations. A point of emphasis might be appropriate here though. One views copyright differently from the standpoint of how it enhances and supports one while alive, from how copyright interacts with the composer’s music after death. While alive, the composer requires copyright protection as a basic floor from which she/he can realize income and delegate publication of the music. When the composer dies, this same structure may very well serve to inhibit the dissemination of the music, particularly by an archival or advocacy program, and most particularly over the Internet. For example, a publisher of a score or CD can, and often does, terminate publication, and the masters are often lost or the contractual permission to switch copyright ownership is in legal limbo. Or, the publisher might restrict dissemination of a CD or score via the Internet for research or promotional purposes via an archival service. In fact, some publishers and CD companies have very restrictive contracts in this regard. For this reason it is essential that any composer wishing to establish meaningful availability of his music after death peruse each contract with a publisher and CD company to ensure that, at the very least, she can enter into non-exclusive distribution agreements with archival establishments, so they can make the music available for research and special performances. Dead composers do not need royalties, but their music does need to grow and prosper unencumbered by inappropriate legal roadblocks (to amplify this point, see the section explaining the SAA’s Deed of Gift in Approaching Archives).
To amplify this point, Frank Proschan at the Smithsonian Institution writes to me, "At the LC conference in December, it was pointed out that most European countries in their copyright laws provide for copyright and phonogram rights to be taken over by a third party if their owner neglects them (for instance, if RCA were to decide to sit on Carter Family or Jimmie Rodgers masters, Bear Family in Germany can publish them under German copyright law, while Rounder in the U.S. can only do so with RCA’s permission). The U.S. seems to be the only major country that allows a rights-holder to consign material to legal oblivion."
A vivid example of this was provided by Marcia Bauman, who worked on the IDEAMA project at Stanford University. About securing permission to secure archival tapes, she writes, "Elsewhere, publishers prohibited IDEAMA use of materials. Such was the case, for example, with the works of Mario Davidovsky."
I should point out that there is a difference of opinion between archivists and librarians regarding the ownership of intellectual property. Browsing the guidelines of the Society of American Archivists, one will note that the SAA definitely prefers for the archival institution to own the intellectual rights. Betty Auman of the Library of Congress informs me that the LOC and other library institutions prefer to not own these rights. And so, when a researcher wishes to make a copy of any document not in the public domain at the LOC (or most other libraries), they must obtain permission from the copyright holder. It is my impression that librarians are simply not aware of the tremendous roadblock this impediment presents against a composer’s music being fully accessible and available after her death.
From What Might Happen To Your Music After You Die and What You Can Do About It
by Barton McLean
© 2001 NewMusicBox