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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 wrote:

> George Brock-Nannestad <pattac@xxxxxxxx> wrote:    
> ****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.
> ****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.

>   But what if a broadcast or concert took place before you were born. If a
> recording survives, should you be denied the opportunity to hear it even if
> the musican would prefer that it not be heard.

----- you probably mean "prefer that it be heard". In that case I see only 
the owner of the object as a barrier. Just as if a wealthy person had bought 
a painting but put it in his private vault. But if the musician preferred 
that it not be heard, yes, there are some things in life that are 
>   I am reminded of a particular Horowitz concert which was released by
> Columbia. The release was advertized as recorded live. However, some places
> were "touched up." These edits were fairly well known in collector's circles
> as several unauthorized in house recordings were done. It was only a few
> years ago when the "unedited" versions were released.
>   Of course one can fault Columbia for false advertizing when they stated
> that the original release was a documentation of the concert...well most of
> it was...and I won't go into all of the mess with the Stravinsky recordings
> and their "authenticity." Were it not for the inhouse unauthorized
> recordings and the subsequent "honest" release, historians would be left
> with the notion that the recital was note perfect. 

----- fringe cases are always interesting to test your position on. In that 
case it would be a successful (or if better analysis could divulge it) an 
unsuccessful lie

>   And then we have the Joyce Hatto scandal...

----- that is infringing the moral rights of the original musicians to a very 
high degree. But at some stage it would only amount to "quoting", if only 
snippets had been taken out. 

>   I am reminded of those who have recorded the sounds of their environment
> as a way of preserving the sounds of a point in history...say, for example,
> the sounds of taking a walk down the streets of a city. Maybe we need to
> commission a group of individuals to make illegal inhouse recordings so we
> can document performance history.

----- well, that would be a case of creating a source, but the provenance of 
anything based on that would be doubtful.

>   And on the subject of saving recording sessions...thinking about this I
> was reminded of all of the sketches that visual artists have left behind and
> all of the drafts that writers have left us. These can be as treasured as
> the final works.

----- many writers and artists have been concerned about how the future may 
think about them if their struggles become known. So they or conscientous 
heirs have destroyed traces of those struggles, including correspondence. 
Huge outcries from historians and analysts, collectors and dealers. However, 
I respect that completely. The authorized version is the statement. If 
performance of paedophilia was the inspiration, indeed prerequisite for the 
art, do I want to know? Do I need to know? Is the result worth less as an 
artistic statement? Could the state take the artist to court posthumously and 
could he/she be found guilty of crime in retrospect and would the surviving 
works of art and sketches be impounded and sold to pay the fines? Or would 
they be burnt, so that nobody could have any economic benefit from these 
heinous crimes?

----- given the fact that I completely accept drug abuse and doping in sports 
as just another technical crutch like the glass-fiber rods and elastic 
running shoes used these days, I must say "it is the result that counts when 
adults play". But you must not subject children to horrendous regimes, 
because they do not have a free will.

 It made me wonder why musicians might be more protective of
> their "sketches" and "rough drafts..." their recording session outtakes.

----- maybe their crime was drug abuse, and they do not want the ramblings 
while in a stupor be known. Mind you, even the ramblings in a stupor of some 
artists may be greater art than the deliberate actions of some other 

----- I shall now introduce a slightly different subject, but very modern:
Looking at the endeavours of artists to have their work preserved by digital 
means, this has been compared to an emulation of a physical archive, only 
much safer, because of backups, etc. It has been proposed that even some 
modern interactive computer use in the creative process to make art may be 
preserved this way. However, the phenomenon of how to destroy the sketches 
has not been researched in a computer environment. As I regard this as the 
artist's right, I have asked the question "how do you destroy digital files 
in an environment in which there is backup". I asked this of the very 
important group centered at the University of Vancouver called INTERpares, 
run by Luciana Duranti, and for the time being the only answer is that the 
artist should do all communication with the computer encrypted to the highest 
standard. So, you cannot destroy the information as such, but you can make it 
very illegible. Somehow I do not think that the artistic mind would care 
about encryption! So there is a good chance that scavenging backup tapes in 
the future will preserve what the grave-robbers want.

Kind regards,


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