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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
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
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?