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Re: [ARSCLIST] Public's rights....was offlist archival question from ARSC list member

From: Patent Tactics, George Brock-Nannestad


Karl Miller commented on Donald Andes' perceptive discussion and I agree. 
However, I would like to structure the problem of access differently. I 
support Tom Fine's view on outtakes.

I think that we need to distinguish very clearly between a number of objects 
(for want of a better word; it could be a file): a recording that forms part 
of a scratch pad, or a draft, a recording that is produced but not released, 
and a recording that is released commercially.

In performance we need to distinguish between the acoustic event (setting 
apart the obnoxious PA), the transmitted event and the recorded event.

In rights there are moral rights and commercial rights. Only the latter may 
be licensed or assigned for a pre-defined number of years. Moral rights have 
no term.

All scratch pad or draft recording is a part of the creative process that the 
artistic creator may decide on completely: it is part of the moral right, and 
 the creator may do what he/she wants with its content: erase it or modify 
it. The artistic creator has chosen to communicate via published material, 
and in fact that is all that he/ she should be judged by. Persons who wish to 
make you party to the creative process should be lauded, but not all wish to 
do that.

If the decision not to release is properly taken by the artistic creator, 
then even that finished product cannot be released. If the decision was 
commercial, well then the commercial rights holder may issue it at any time.

If an object is released commercially, then it becomes part of public 
awareness, and I believe in a right to know, to hear, to study everything 
that is public. This means that its content may be preserved, and it becomes 
more and more obvious that this may be very different from preserving the 
physical object. It may only be made available in a commercial form by those 
who are permitted to - until the sole right runs out. After that anybody may 
fight for its survival by any means available, including by distribution, 
except those that would infringe the original and eternal moral rights of the 
artistic creator - this would be modifying by adding an instrument, for 
instance, or rude noises, except when this is artistic in its own right. The 
original commercial entity does not have any duty to preserve anything, not 
even a master tape, because it is the commercial object that is only derived 
from the master tape that is in the public awareness. (Walter Benjamin never 
got this right, or rather, those who try to apply his thoughts to sound 
recording never did). However, it may make good commercial sense to preserve 

As to performance: that is an event in time that has a certain duration. 
After that it only lingers in the memory of those present. If it has been 
transmitted by radio, the listeners would also have their vision-deprived 
memory. So, there is really not a case of "right to know" - you could have 
bought a ticket, if you wanted to share the memory, or listened to the radio. 
If it has been recorded by those who have a right to record it may go into 
the draft - produced - released stream as per above. If it has been recorded 
without permission this clandestine recording cannot be made use of 
commercially, and it may not be modified based on moral grounds. Time seems 
to be a great means of converting clandestine and forbidden to something 
acceptable and welcome, and we should in the common interest welcome past 
infringements while cracking down on present infringements. This is not 
really a double standard, because those individuals who take the risk are for 
this very reason very careful not to create a commercially infringing 
situation. And proof that this clandestine recording is really what it 
purports to be can only be given by witnesses to the live event, to 
spectacular mishaps that were written up in reviews or by comparison to 
simultaneous, authorised recordings. But authorised only means that the 
recording is not clandestine - it does not say anything about publishing it 
as an object.

Was this a rant?

Kind regards,


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