Planning for musical obsolescence

Gustavo Dudamel is one of the most celebrated conductors of his generation.  As Music Director of both the Los Angeles Philharmonic and the Simon Bolivar Orchestra of Venezuela, he has built a solid and enthusiastic following amongst lovers of symphonic music.  He is also, according to his website bio, deeply committed to “access to music for all.”  So it is particularly poignant that a recording by Dudamel should serve as the prime example of a new access problem for music.

When Dudamel and the Los Angeles Philharmonic release a new recording of a live performance of Hector Berlioz’s Symphonie Fantastique, it should be a significant event, another milestone in the interpretation of that great work.  But in this particular case we are entitled to wonder if the recording will really have any impact, or if it will drop into obscurity, almost unnoticed.

Why would such a question arise?  Because the Dudamel/LA Philharmonic recording was released only as a digital file and under licensing terms that make it impossible for libraries to purchase, preserve and make the work available.  When one goes to the LA Philharmonic site about this recording of Symphonie Fantastique and tries to purchase it, one is directed to the iTunes site, and the licensing terms that accompany the “purchase” — it is really just a license — restrict the user to personal uses.  Most librarians believe that this rules out traditional library functions, including lending for personal listening and use in a classroom.  Presumably, it would also prevent a library from reformatting the work for preservation purposes in order to help the recording outlive the inevitable obsolescence of the MP3 or MP4 format.  Remember that the section 108 authorization for preservation copying by libraries has restrictions on digital preservation and also explicitly allows contractual provisions to override that part of the law.

At a recent consultation to discuss this problem, it was interesting to note that several of the lawyers in the room encouraged the librarians to just download the music anyway and ignore the licensing terms, simply treating this piece of music like any other library acquisition.  Their argument was that iTunes and the LA Philharmonic really do not mean to prevent library acquisitions; they are just using a boilerplate license without full awareness of the impact of its terms.  But the librarians were unwilling.  Librarians as a group are very law-abiding and respectful of the rights of others.  And as a practical matter, libraries cannot build a collection by ignoring licensing terms; it would be even more confusing and uncertain than it is to try to comply with the myriad licensing terms we encounter every day!

In the particular case of the Dudamel recording of Berlioz, we know rather more about the situation than is normal, because a couple of intrepid librarians tried valiantly to pursue the issue.   Judy Tsou and John Vallier of the University of Washington tracked the rights back from the LA Philharmonic, through Deustche Grammophon to Universal Music Group, and engaged UMG in a negotiation for library-friendly licensing.  The response was, as librarians have come to expect, both inconsistent and discouraging.  First, Tsou and Vallier were told that an educational license for the download was impossible, but that UMG could license a CD.  Later, they dropped the idea of allowing the library to burn a CD from the MP3 and said an educational license for download was possible, but only for up to 25% of the “album.”  For this 25% there would be  a $250 processing fee as well as an unspecified additional charge that would make the total cost “a lot more” than the $250.  Even worse, the license would be limited to 2 years, making preservation impossible. The e-mail exchange asserts that UMG is “not able” to license more than 25% of the album for educational use, which suggests that part of the problem is that the rights ownership and licensing through to UMG is tangled.  But in any case, this is an impossible proposal.  The cost is absurd for one quarter of an album, and what sense does it make for a library to acquire only part of a performance like this for such a limited time? Such a proposal fundamentally misunderstands what libraries do and how important they are to our cultural memory.

Reading over the documents and messages in this exchange, it is not at all clear what role Maestro Dudamel and the LA Philharmonic have in this mess.  It is possible that they simply do not know how the recording is being licensed or that it is unavailable for libraries to acquire and preserve.  Or they may think that by releasing the recording in digital format only they are being up-to-date and actually encouraging access to music for everyone.  In either case, they have a responsibility to know more about the situation, because the state of affairs they have allowed impedes access, in direct contradiction to Maestro Dudamel’s express commitment, and it ensures that this recording will not be part of the ongoing canon of interpretation of Berlioz.

As far as access is concerned, the form of its release means that people who cannot afford an MP3 player will not be able to hear this recording.  Many of those people depend on libraries, and that option will be closed to them because libraries cannot acquire the album.  Also, access will become impossible at that inevitable point in time when this format for digital music becomes obsolete.  Maybe UMG and the Philharmonic will pay attention and release the recording on a different format before that happens, but maybe they won’t.  The most reliable source of preservation is libraries, and they will not be there to help with this one.  So access for listeners 20 or 30 years from now is very much in question.

This question of the future should have great consequence for Maestro Dudamel and the orchestra.  Without libraries that can collect their recording, how will it be used in classrooms in order to teach future generations of musicians?  Those who study Berlioz and examine the performance history of the Symphonie Fantastique simply may not know about this performance by Dudamel and the LA Philharmonic.  That performance, regardless of how brilliant it is, may get, at best, a footnote in the history of Berlioz — “In 2013 the Symphonie Fantastique was recorded by the LA Philharmonic under the baton of Gustavo Dudamel; unfortunately, that recording is now lost.”  These licensing terms matter, and without due attention to the consequences that seemingly harmless boilerplate like “personal use only” can produce, a great work of art may be doomed to obscurity.