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

see end...
----- Original Message ----- 
From: "George Brock-Nannestad" <pattac@xxxxxxxx>
> 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
> it.
> 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?
1) No.

2) As far as outtakes, preparatory material and clandestine recordings...
the applicable question here is whether the artist and/or event has
adequate historic importance to justify the accessibility of any or
all of the above. In the visual arts, particularly painting, we have
preserved, valued and studied the drawings upon which important
artifacts (i.e. the "Mona Lisa"...) were eventually based. In music,
this means that when/if an artist* has sufficient importance, it is
important to make his/her/its work TOTALLY accessible...including
items which enable us to understand (or attempt to) how a certain
entity developed.
* Or a specific work

In the same way that once one becomes a "public figure" certain rights
of privacy are abrogated...if a creator of intellectual property, or
a specific item of same, becomes of sufficient historic importance
and/or value...then the accessibility (of creator or creation[s])
must change. History, as an entity, is important to our culture and
its survival!

Oh...a caveat omitted from an earlier post:

IF you, as an individual, own tangible property which has sufficient
historic importance...it then becomes your task to preserve that (as
opposed to destroying it...i.e. demolishing your 17th century home
to build a parking lot, or turning your one-off custom-built 1933
Duesenberg phaeton into a hot rod...). As part and participant of
a (more or less) functioning society, this becomes your duty...!

Steven C. Barr

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