CDs & Copyright!

[peter rh]

I recently received a 3cd set issued by Avid Entertainment titled
Little Jazz Giant -Roy Eldridge.The material is all 50+ years old
but in addition to the normal All Rights Reserved notice each cd
case has the following "This tecnical reconstruction is uniquely
idenifiable and is copyright"
Anybody care to comment?

[Tenorman]

My understanding of the situation in the UK is:

1. After 50 years the recording is out of copyright. Any company who cleans up and re-masters the original is unable to claim any extension of the copyright. This is the major problem with the enthusiast labels who do all the work to clean up a master, and then someone else pinches the cleaned up version.

2. If you re-issue a compilation of out-of-copyright material, you can copyright the compilation. This prevents anyone from just doing a straight copy of the disc.

I believe that you could select tracks from a variety of compilations and issue them, providing your compilation did not match a previously issued one.

Any lawyers out there who can confirm this??

The rule may also prevent someone putting on the CD in the pub without the proper licensing. But again (I believe) you can put together a selection of out of copyright music and pay no broadcast fees, providing that it is not just straight off a CD

[Claude]

"This technical reconstruction is uniquely
identifiable and is copyright"


I haven't heard of any legal decision putting the technical remastering work under copyright protection. Copyright law protects the composer and the musicians.

Maybe the label could sue on the basis of unfair competition law.

[peter rh]

I don't know very much about Avid,but I don't think they are a
very big outfit.The wording seems to suggest(to me) that they
can identify what might be a copy of their work.It could be a bluff,
but if it stops anyone(other than serious counterfeiters)then
maybe it will have an effect.Surely the details would be known
about in the press etc, if some new system had been introduced

[Phil Meloy]

Originally posted by Claude
Copyright law protects the composer and the musicians.

Copyright law is designed to protect the intellectual property rights of anyone who designs, creates or invents something be they composer, musician, software designer, scientist, writer, record label, architect or multinational corporation etc. Here in the the UK the Act of Parliament which deals with copyright issues is the 1988 Copyright, Designs & Patents Act. As regards sound recordings the copyright expires on a sound recording after 50 years. If however an existing recording that is about to run out of copyright is re-mastered by or with the permission of the owners of the copyright of that recording this is then considered to be an entirely new recording and qualifies for a further 50 years of copyright protection from the time of its inception. Similiarily a remastered version of a recording that is already out of copyright would also been seen as a new recording and qualify for a further 50 years protection. This would not however prevent someone else who also had access to the original recording of the out-of-copyright recording from producing and releasing their own remastered version.

[Claude]

Phil,

Do you mean remastering (the technical act of improving the sound of the original recording, without changing the music) or resampling/remixing (changing the music and adding some sounds to create a new "updated" version of the song)? Only the latter is an artistic act.

I don't think the work of the remastering engineer qualifies for copyright protection, although it would be reasonable under certain conditions, to prevent other labels to simply copy the remastered recordings.

[Phil Meloy]

Claude I believe that all that is required is that the recording is remastered for it to be considered an entirely new recording according to an article I read in Music Week a couple of years ago. I'll try and confirm this.

[Fran]

We have had several threads on this subject. It seem to me that someone, (perhaps Chuck Nessa), who has had first hand experience with the subject commented that the 50 year law has been extended in the US providing an "unfair?" advantage to the off shore producer. Anyone recall this?

[Claude]

Yes, the eternal 50-vs-70 years discussion. You can find the threads by searching for "copyright AND definitive" (Definitive the label)

[Tenorman]

Phil,
I am not sure that your definition is correct. There was an interview with Lake Records MD (I think) in one of the Jazz magazines, and he was saying that it is very annoying that he would spend money cleaning up a master, to produce a new master tape, and then some of the cheapo labels would just pinch the track straight off the CD, and there was not a thing he could do about it if the original release date was more than 50 years ago.

Who would get the copyright on the cleaned up master? The company that did it or the artists?

[Rocket #9]

Originally posted by Claude
Yes, the eternal 50-vs-70 years discussion. You can find the threads by searching for "copyright AND definitive" (Definitive the label)

The "End of Mosaic" thread here turned into a long discussion of copyright, among other things. I don't recall Definitive being part of the discussion, so you might want to search for "copyright" only.

Ed

[Phil Meloy]

Hi guys - The following is a quote from an article which appeared in Billboard in September 2002...

A much-talked-about solution to the public-domain problem is remastering -- a tactic successfully employed by the movie industry. Fisher says, "The British Phonographic Industry says a remastered work constitutes a new recording and therefore a new copyright, but that's never been challenged in court." So, if a work is remastered, is its copyright renewed? "It's a slight grey area," says Richard Constant, legal counsel for Universal Music International. "The basic answer is 'yes,' but the original copy still falls into public domain [after 50 years], so there is a limit as to how much good it will do you."

Admittedly this is now eighteen months ago during which time further debate on the subject has occured however I am not aware in any change to the above position. As I mentioned in my previous post I have also seen this position stated in Music Week which is the UK music industry magazine - unfortunately I do not have a copy of that particular article. The issue of copyright of sound recordings has been particularily complicated by by the difference in time length of copyright that occurs in different countries. I have posted the full Billboard article below. I think it covers the majority of issues involved in this area. Hopefully it will go some way to explaining the current situation...

BY GORDON MASSON

Billboard, September 21, 2002

LONDON-As 40-year anniversaries approach for the Beatles, the Rolling Stones, and their contemporaries during the coming months and years, the record companies behind those acts will be doing their best to capitalize on the milestones in the full knowledge that 10 years from now, anyone in Europe will be able to do the same. In Europe, sound recordings -- including American repertoire released there enter the public domain 50 years after release, meaning that some of the most valuable catalogs in existence are effectively depreciating assets. And with the 50th anniversary of releases by the likes of Frank Sinatra and Elvis Presley fast approaching, record companies dealing in public domain repertoire have potentially huge pay days on the horizon. ”We are facing a situation where recordings by some of the most famous artists of all time are going to enter the public domain in the relatively near future," says John Kennedy, president of Universal Music International.International Federation of the Phonographic Industry (IFPI) senior legal advisor Lauri Rechardt explains: "There are very different time scales for copyright protection] worldwide, so there is an incentive for rights to be harmonized at the highest international level." He continues, "While in the U.S. copyright remains in place for 95 years, in the U.K. and Continental Europe, any U.S.-owned repertoire is subject to the laws of those countries and therefore becomes public domain 50 years after first being released. Meanwhile, a number of Latin American countries have copyright periods between 60 and 80 years, while in Asia it also tends to fall in between the U.S. and Europe. India, for example, is 60 years." EMI Recorded Music senior VP Rupert Perry, who chairs the IFPI's executive committee for Europe, points out that performers are the real victims of the copyright imbalance: "The people most affected at the moment are predominantly American artists and their estates, such as Miles Davis or Nat King Cole or Sinatra." But it's not just big-name artists. Roger Armstrong, managing director of London-based reissues company Ace Records, says: "For performers who perhaps have 11/2 hits in their entire career, any small income they can get from their recordings is gratefully received." The issue is further complicated by the fact that authors and composers in Europe enjoy a longer protection period-life of the author plus 70 years.That's the same as in the U.S., effectively meaning that authors'rights already are harmonized."Nobody has yet explained why a composer's family should still be able to earn money 70 years after his or her death, whereas the people who actually sing or perform a song that helps the composer earn money lose any right to income 50 years after the rather vague term 'affixation,'"Armstrong continues. "Essentially it has to be looked at as anomalous and unfair that authors' rights to be paid for their work should be protected so much more than performers' rights." Until now, pop music had not really figured in the equation of public domain, but that is set to change as the 50th anniversary of rock'n'roll dawns. Bob Fisher, co-founder of London-based Acrobat Music & Media, explains, "A lot of the biggest exploiters of public domain, particularly in the jazz and blues field, are the Europeans. Labels simply issue the chronological recordings of jazz people and blues people as and when they become available, so everything up until the end of 1951 is technically available now. And come Jan. 1 next year, there'll be another volume of issues. So the business and its catalog will grow year on year to the extent that you can predict what you're going to be able to release for years ahead." That situation is something that the IFPI is determined to prevent.The organization is lobbying politicians at every opportunity on the issue of extending copyright on sound recordings and is backed in its fight by the Recording Industry Assn. of America (RIAA).RIAA head of international affairs Neil Turkewitz tells Billboard: "In particular, the online component is of major importance, because in the world of electronic delivery, national borders don't exist. Therefore, if there are different copyright periods in different countries, it is very difficult to prevent infringements." Kennedy says, "It's fair to say one of the complications is that extending the protection period was addressed fairly recently-the 50-year term was confirmed in the 1996 WIPO Performances and Phonograms Treaty. So there will be some that think, 'That was only six years ago, and here we are, the record industry is back trying to extend it already.'" That's a point Fisher claims is only one of many that the music industry has to address with politicians: "Government's attitude is that they don't want to be responsible for increasing the price of music." Armstrong agrees. "There is a widely held perception by politicians that the record industry is full of thieves and they deserve everything they get," he says. "I heard a story from somebody at a major record company that when the U.K.'s Department of Trade and Industry was approached on the issue of extending copyright, the department retorted that if the record goes out of copyright, then royalties don't have to be paid to the performer and therefore the records are cheaper. Government approves of that, because it is in favor of anything that makes CDs cheaper to the consumer." Changing that viewpoint could prove tricky. "The whole area is rife with hypocrisy," Fisher says. He questions whether major record companies continue to pay performance royalties once a track becomes public domain. "None of the majors will admit that, but I'm sure they all do it," he alleges. "The way some of the stuff is being priced and being shipped to retailers for two or three pounds, I'm sure they're not going to be paying performance royalties on that." A source at one of the majors refutes Fisher's claim. "We are not only honor-bound, we are duty-bound by our contracts with artists to pay royalties," the source says. "So to suggest that we would not is ridiculous." A much-talked-about solution to the public-domain problem is remastering -- a tactic successfully employed by the movie industry. Fisher says, "The British Phonographic Industry says a remastered work constitutes a new recording and therefore a new copyright, but that's never been challenged in court." So, if a work is remastered, is its copyright renewed? "It's a slight grey area," says Richard Constant, legal counsel for Universal Music International. "The basic answer is 'yes,' but the original copy still falls into public domain after 50 years, so there is a limit as to how much good it will do you." He adds: "Audiovisual works tend to have longer copyright terms because a number of the contributors to those works are considered to be authors." If harmonization does happen and the U.S. standard of 95-year copyright protection is adopted, many works now in the public domain would fall back into protection putting some public-domain operators out of business.

Kennedy says that has happened in a number of countries where the concept of copyright has only recently been introduced. Acknowledging that some parts of the world are devoid of any copyright law. Rechardt claims such situations are rare and that, the biggest problem is Europe. "Odd as it may sound, the EU [European Union] is lagging behind; against the background of the international treaties, 50 years is the lowest possible level," Rechardt says. "Many of the former Eastern Bloc countries have taken a tiger leap from almost nowhere to the highest international standard through the WIPO Internet treaties. Eastern Europe has the highest percentage of ratification at this point, and that ratification is retroactive. Countries in Africa are still problematic, but again, many of those territories are party to the [WIPO] Trips [Trade-Related Aspects of Intellectual Property Rights] agreement, and some of them have ratified the
Internet treaties, which so far none of the European countries have done."

For their part, public-domain labels argue that after 50 years, copyright holders have had more than enough time to exploit their repertoire. Patrick Fremeaux, president/director general of Fremeaux & Associes, a French company specializing in public-domain catalog, says labels like his are essential to preserving musical legacies. "Extending the copyright is not necessarily a problem for my company; the real problem is with copyright owners because the recordings that the major companies are not going to exploit are going to disappear." Fremeaux says. He adds that he has submitted a report on the subject of public domain to the French government. That report urges the establishment of a commission for what Fremeaux refers to as "heritage" music. He also seeks government funds to preserve heritage music and wants the music to be promoted in school While the French government ponders that report, it is unlikely to strike a chord with Armstrong, who refuses to even speak to public-domain operators. "people who are issuing out-of-copyright material should be marginalized by the business as much as possible," he blasts. "Out-of-copyright operations are shoddy, they make mistakes, and they don't really care if something is done right or not -they're just there to make a fast buck." "We would never even dream of not paying the performers," Armstrong says.And he argues that even though Ace takes the moral stance of paying royalties to performers whether or not the sound recording is protected by copyright, European law currently places him at a competitive disadvantage.

“Nowhere in ... any contract I've ever read does it say that when the work goes out of copyright in the legal sense, I can stop paying the artist," Armstrong says. "So apart from the fact that I feel obliged and duty-bound to pay royalties, I would say that I am suddenly disadvantaged as the person who owns the copyright-or rather the catalog-in that I am probably legally obliged to pay because it is in the contract, whereas the guy down the road can go out and get a B.B. King record, dub it, put it out, and nobody can do anything about it." The tide could be turning. Life expectancy is increasing and in today's litigation-led world, it might not he long before performers challenge the EU on why authors enjoy greater copyright protection. Constant observes, "The Rolling Stones are going to still be very much around when everybody is selling their public-domain stuff."

Perry adds, "These people that are operating in the public-domain area are exporting material by the likes of Miles Davis into the U.S., where of course it is still in copyright." But Turkewitz says physical imports should not exist. "We have the ability in the U.S. to prevent goods that might be public domain elsewhere but still in copyright in the U.S. being sold here. and there are both civil remedies and criminal penalties that we can pursue in such cases. But, the real danger lies in the online delivery of repertoire." While the IFPI and the RIAA may be singing from the same song sheet, Perry is all too aware that, the American trade body faces a battle of its own on copyright-and one that could have implications elsewhere. "The (copyright) law changed in the U.S. fundamentally over Mickey Mouse," Perry recalls. "But people are now challenging that as unconstitutional and therefore it's coming before the Supreme Court for debate, so that could have a real hearing as well." That case is expected to begin next month and marks the first time that the court has accepted a case that challenges the constitutionality of any aspect of the U.S. Copyright Act (Billboard, June 29).

But Rechardt states with unwavering determination: "Our goal is to have protection harmonized at the highest possible level, which at the moment would be that of the U.S. Whether that is achievable is a question mark, but realistically we would like to achieve something that is in line with what the authors have internationally. But we need harmonization now to tackle online commerce, which is borderless, so that requires a decision." And concluding that the political will of America may be the key to achieving harmonization, Armstrong comments: "If the Americans come in and wave a big stick, Europe will as usual jump out of its way and do whatever the Americans require."

P.S. The US extension of the copyright of a sound recording to 95 years from the date of its release became law on 27th October 1998.

[Phil Meloy]

For anyone interested here's some information at this site on the Sonny Bono Copyright Term Extension Act which was enacted in the USA in 1998. The CTEA is currently under legal challenge in the US Supreme Court.

http://writ.news.findlaw.com/commentary/20020305_sprigman.html