Copyright law is often described as providing incentives to make and disseminate creative works. Copyright law should also seek to foster the preservation of creative works so that people can enjoy, use, study, critique, and build upon them long after they are first created. Traditionally, copyright law fostered preservation largely because most copyright owners principally exploited their works by making and distributing many tangible copies of those works. Those copies could end up in many different hands, and each copy could potentially survive into the future. Some kinds of works, though, were disseminated principally by performance, and as a result, the audiences for those works generally did not acquire a copy that they could preserve. As a result, most of the time the burden of preserving such works fell entirely on the author or copyright owner, and not all copyright owners expended the resources necessary to preserve their works.

In some instances when a copyright owner has not preserved a copy of her work, a copy made privately by an audience member, usually without the copyright owner’s knowledge, may become the only existing copy of the work. Many examples of this situation involve radio and television broadcasts, including broadcasts of major sporting events, such as Super Bowl and World Series games, and broadcasts of important musical performances by significant artists, ranging from the Metropolitan Opera to jazz greats such as Ella Fitzgerald to The Beatles. In these situations, a stalemate can result because the owner of the privately made copy owns the only remaining copy of the work, while a copyright owner may own copyright rights in the work embodied in that copy, and neither owner alone can exploit the work. A current standoff over the only known recording of the telecast of Super Bowl I is an example of such a stalemate.

Such a stalemate can threaten copyright’s goal of preserving creative works. In these situations, that goal can probably best be achieved if the privately made copy ends up in the hands of an archive that can preserve the work. But current copyright law leaves unclear the question of whether transferring the privately made copy to an archive would infringe any copyright in the work embodied in the copy. That uncertainty may deter parties from transferring a private copy to an archive and may thereby contribute to the complete loss of the work itself.

Congress should eliminate this uncertainty by amending the Copyright Act to provide that transferring a copy of a copyrighted work to an archive for preservation purposes does not infringe the work’s copyright, even if that copy was made without the copyright owner’s authorization. Such an amendment would be simple to craft and would not interfere with the legitimate interests of copyright owners. And as copyright owners disseminate an increasing amount of copyrighted material by online transmission rather than by distributing tangible copies, this exemption for archival transfers could become increasingly important in allowing privately made copies to help preserve such material for posterity.