Re: [ARSCLIST] 78's and PD, was Curatorial Responsibility, formerly Copyright of treasures

[Mike Richter <mrichter@xxxxxxx>]

Tom Fine wrote:
> Does anyone have any idea what percentage of commercially-produced 78's are
> now in the PD? 

My understanding is: In the U.S., none or virtually none, depending on 
your interpretation of the law. All electrically recorded discs (1925 
on) are federally protected unless placed in the public domain by the 
holder of rights. Arguments have also been made that even earlier works 
which would be PD by federal law are protected by common law - and per 
the Capitol/Naxos case, that may apply.

In addition, while I have seen one ruling in Europe that copyright is 
based on the original issue, I've found no such in the U.S. Thus, any 
reissue may start the clock afresh on that issue. That is, in Europe if 
one takes a recording of a PD work from a recent LP or a current CD, it 
is still PD; in the U.S., you must take it from the original issue to 
have the original release to PD apply.

Note that the European interpretation is unfair to those who re-engineer 
these recordings. I believe that that interpretation should not and will 
not stand and that the efforts of such as Seth Winner and Ward Marston 
deserve protection. But that, too, is logic and equity, not the law.

Mikw
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mrichter@xxxxxxx
http://www.mrichter.com/