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Re: arsclist IP in recordings
At 07:21 PM 1/12/2003 -0500, Patrick Feaster wrote:
On Sat, 11 Jan 2003, Paul T. Jackson wrote:
> Unlike the United States' 95-year protection for sound recordings,
This is a common misperception. There is no 95-year term connected with
the protection of sound recordings in the United States, since pre-1972
sound recordings are excluded from federal copyright law (except for the
underlying compositions). Instead, these recordings fall under a bizarre
array of state laws based on a variety of different principles, some of
which end up contradicting each other -- particularly when master
recordings are lost or have changed hands. So there is no overarching
United States term of protection that's at odds with European law.
Rather, there are some state statutes that could be interpreted as barring
particular imports. But a state statute that bars European reissues would
also get in the way of interstate commerce. The "common law copyright"
term in Colorado is 56 years for sound recordings, so a Colorado-based
reissuer would be in much the same legal position as one in Europe.
California, on the other hand, grants equal protection to a recording
whether it's from 1971 or 1891, although in practice nothing nearly that
early has been the subject of conflict, and mp3.com (headquartered in San
Diego) openly uses 1923 as its rule of thumb. A nationwide standard is
long overdue, and maybe this current situation will result in one, for
better or for worse.
Note that sound recordings made since 1972 ARE subject to the 95-year
copyright term, which is undoubtedly the reason for the error. But that
doesn't apply to anything that's expiring in Europe right now and won't
be a REAL issue until 2022.
In addition to state law, common law applies. Even more to the point, the
location of the issuer may not be in question here. The vital matter may be
the state in which it is sold, the location of the purchaser or the
relationship of state law to federal.
I have seen no case law on the matter but would be pleased to do so. What
is incontrovertible is that on some material a claimant to copyright
protection has threatened suit in various courts and thereby has suppressed
the reissue. One major company, Naxos, has an explanation of its policy of
non-release in the U.S. I do not have the link. This is Naxos' statement at
their website about copyright:
How can Naxos Historical release recordings made by other record companies?
Internationally, sound recordings are protected for 50 years from the end of
the year in which they were first released (worldwide, except in the USA).
That means, any recording published or released to the public before 1952 is
now out of copyright, i.e. in the public domain. Broadcasts are considered
published the day they are re-broadcast.
In the United States, the situation is more complicated. There, sound
recordings were not protected by copyright until 1972, but record companies
use a variety of state laws, including the rights of the artist's
personality and likeness, unfair competition, and the like in attempts to
prevent third parties from releasing their old recordings. This is why we do
not release all our historical titles in the United States and why we do not
release recordings that, although released before 1972, are not at least
fifty years old, counting from the year of release.
There is nothing illegitimate in releasing out-of-copyright sound recordings
the same way it is not illegitimate to release Bach, Mozart, Beethoven and
Mahler without paying mechanical copyright (a fee to the composer or his
publisher for the use of the printed music) to their descendants or
manufacturing a drug whose patent has expired.
Mike
mrichter@xxxxxxx
http://www.mrichter.com/
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