Our Recorded History: Intellectual Property or Cultural Heritage?

As the magnitude of loss becomes more public and musicians express more anguish about the loss of some half a million music masters in the 2008 archive fire at Universal Music Group several questions emerge as to how we see our cultural heritage. Are music, books, and movies simply intellectual property to be bought and sold at the whim of entertainment conglomerates or are they transcendent creative assets integral to our cultural heritage? If they are also the latter, should we not require a stewardship plan of their owners for their ongoing availability and security?

Universal Music Group (Vivendi-France) is a roll-up of Deutsche Grammophon, Philips, Decca, Polygram, Angel, and Mercury Classics – arguably six of the richest classical libraries in the world. Their jazz labels include: Verve, Blue Note, and Impulse and in pop: Abbey Road, Bravado, Capital, Def Jam, EMI, Geffen, A&M, Island, Polydor, Republic, and Virgin.

The heritage labels I grew up with spanning roughly 75 years of recorded history: RCA Red Seal, RCA Victor Jazz and Bluebird, Columbia,  Jazz and Legacy, Epic, Okeh, Windham Hill, Monument, Arista and others are all owned by Sony (Japan).

The Concord Music Group now owns the Philo label which my brother and I started in 1972 in a barn in Vermont. It also owns many other entrepreneurial heritage labels like Fantasy, Folkways, Smithsonian, Rounder, Concord Jazz, Stax, Fania, Milestone, Prestige, Riverside, Specialty, Sugar Hill, Telarc, Varese Sarabande, Vee-Jay, and Vanguard.

The genesis of most early recording companies was someone’s fascination with and love for music of their own time and another’s culture. Like curators, they picked and chose carefully what and whom to record, preserving on glass disk, wire, and then tape what they found in our cultural history. Whether conservatory music or popular tradition, the likes of John Hammond, Norman Granz, the Erteguns, Chris Strachwitz, Leonard Chess, John and Alan Lomax, Floyd Soileau, Mose Asche, Jack Holzman, the Rounders, Maynard Solomon, and Robert Craft sought out and recorded much of what now makes up a priceless musical patrimony.

Families, communities, and nations define themselves by their cultural heritage, evolving from a mixture of artistic and commercial interests into what have become great analog and digital libraries that can be distributed in homes, schools, libraries, and community gathering places. These original libraries were the lifeblood of small entrepreneurial businesses. Now, they are the digital assets of global entertainment companies.

A specialty label could thrive on aggregate monthly sales of 25 units each of 300 titles; whereas a global enterprise will engineer its resources to generate sales bursts of millions of units of just a few headliners. The unending demand for Billie Holiday, Hank Williams, or the Budapest String Quartet’s recording of the late Beethoven Quartets may constitute little more than “evergreen” sales revenue, yet culturally it is no less important than the latest Ariana Grande or Eminem release.

Over the last five decades, the merger of entertainment libraries, network distributors, and consumer electronics firms into global entertainment companies occurred at a dizzying rate and largely without regulatory notice. Most of the relevant classics, jazz, or indigenous “heritage libraries” have experienced serial upward ownership changes. While there is nothing wrong with a change of ownership – it happens every weekend at lawn sales – heritage libraries are not Tupperware. They evolve into cultural patrimony and there is a commensurate stewardship responsibility attached, just as there is such a responsibility for historical places or environmental sanctuaries.

Catalog deletions, as these conglomerates “reassess costs,” is a major casualty. The severely trimmed backlists of those once great catalogues devolves into “greatest hits” samplers. As the Anti-trust Division of the Department of Justice glances fleetingly at these international roll-ups and applies their “Does it create a monopoly?” criteria to the concept of “public good,” no consideration is given to the cultural value of these libraries nor to their security and stewardship.

In the more regulatory-conscious sixties, the Anti-trust Division took apart Columbia Records saying that it was “vertically integrated,” owning everything from Columbia Artist Management to a chain of retail stores and everything in between. This was found to be anti-competitive. Columbia dutifully disintegrated. The reintegration of key elements of the Columbia holdings is complete and infinitely more powerful, having since added consumer electronics hardware and streaming technology – known now as Sony.

Today, we pay scant attention to intellectual asset transfers; they’re private property. But when does private property assume public interest? When it becomes part of the cultural history of a nation.

Recorded music libraries became “intellectual property” early in the century with amendments to copyright law and achieved full property status in 1976 earning the encircled P for a recorded phonogram. The “information age” was beginning in earnest and “intellectual property” became increasingly bankable as more sophisticated storage, broadcast, and playback hardware made possible greater and greater revenues from its distribution, sale, and licensing.

The time has come to embed stewardship criteria in the regulatory review process for cultural assets that define a national aesthetic. Entertainment inventories used to cost money but today are stored and distributed digitally. If the owner of a unique recording deletes it from distribution, any bone fide music enterprise wishing to reissue could license the recording at a statutory rate like the Harry Fix compulsory mechanical license integral to song publishing. As a third option, they could donate the right with a positive tax consequence to a recognized non-profit patrimony steward.

After the Universal fire destroyed half a million record masters, some plan of cultural stewardship needs to be implemented and enforced, applying to all major literary, film, and music libraries at the very least. The Library of Congress with its vast media restoration technologies and knowledge of archival security could well play a role in developing a regulatory code of stewardship for private owners of our cultural heritage.

Bill Schubart is an author, a regular columnist for VTDigger and VT Public Radio and co-founder of Philo Records and former Chair of the Vermont Arts Council, The Vermont Folklife Center, and The Vermont Business Roundtable.