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Re: [ARSCLIST] When you die...now broadcast recordings...more than you want to know
Roger and Allison Kulp <thorenstd124@xxxxxxxxx> wrote:
***I have a lot of radio transcriptions myself,from Canada,Netherlands,Japan, Germany,South Africa,and yes France.What is the legality of webcasting.or posting MP3 uploads of these in the US ?
I make no claim to being able to provide an authoritative response, but it is my understanding that any country that signed the GATT treaty benefits from our copyright laws. Hence, a pre-1957 broadcast of the French Radio, will be PD outside the US but not in the US. Hence posting a file for downloading of such a broadcast in the US would not be legal. I do not know if posting it to a server outside the US would illegal. For example, I believe that it is legal for a US company to take a broadcast performance, not PD in the US, but PD outside the US and press and sell it outside the US. There are several companies that do this and, as I may have mentioned, I hope to begin doing this next year. As for the posting of the file outside the US, it would SEEM that the same notion would apply, assuming downloading in the US was prohibited. However, as we know, with the aforementioned scenario of pressing outside the US, a person in the US can order the CD online from a non-US
vendor and have it shipped to the US. In this instance, there are questions as to who can be held responsible for the importation of a recording that is illegal in the US. And, as we all know, if you want to download anything to your US based desktop...they are ways...
As for the legality of the webcasting, I believe it would subject to the license of the recording. Most of the pressed broadcast transcriptions I have (Dutch Radio, Finnish Radio, Radio France, BBC, NHK, etc.) came with a license that had an expiration date. Most of what I have came from radio stations I worked at. Once the license expired, the discs were headed to the trash. Rebroadcast would not be legal once the license expired.
If it was something like a V disc or AFRS recording, my guess is that the answer is no. However...as we all know, some of those discs have been reissued commercially, but I do not know how legit those releases are. Perhaps someone can fill in here...It would seem that if a V disc was issued commercially, the broadcast of that recording would be legal and subject to the laws as they apply to any broadcast of a commercial recording.
Then there are those broadcast transcriptions made by individuals or by the radio stations, or done for the sponsors of the programs. I have discussed this with our resident copyright expert, Georgia Harper.
http://www.utsystem.edu/ogc/intellectualproperty/gkhvita.htm
Her perspective, at least at the time I spoke with her, about 4 years ago, was that there could be some legal question as to whether or not such a recording was subject to the copyright. She did not, however, recommend assuming that a performing organization claiming ownership might not indeed have ownership. The performing organization may have had the right to broadcast a performance by paying the union members a broadcast fee. However, subject to the contract, the performing organization may or may not have had the right to fix that performance to a recording. Also, there may have been limits to the rights for reuse.
How complicated can this get? An example might help. Many years ago I was doing a radio program on the music of William Schuman. I wanted to rebroadcast a performance of Koussevitzky conducting Bill's 3rd Symphony. NY Public held a copy. I applied to the Boston Symphony Transcription Trust for permission to broadcast the performance. Oddly enough, the performance had not been broadcast, and was, as I recall, recorded by the Carnegie Hall Recording Corp. So, in a sense, the recording was illegal in the first place as the union had never been paid a broadcast rate, and it may have been recorded without the knowledge of the orchestra. As a sideline to this, it might, strictly speaking, be illegal for the Library to retain that copy was it was made illegally...but I digress...
I paid the transcription trust about $100 for permission to broadcast, permission they might not have been in a position to authorize in the first place since the performance may not have been broadcast! I then got NY Public to transfer the recording for me. As part of the agreement, I had to destroy the tape after I broadcast. However...I did have a friend of mine record the broadcast for my own collection.
Another example might help...or hinder. I wanted to issue some broadcast performances of the National Orchestral Association. Part of their archive is held by New York Public. I got a letter from the President of the Board of the NOA to release to me copies of any of their performances held by the Library. I then got the Board to provide me with a letter which basically states that they waived any rights they might have to the commercial issue of these performances. They were quite upfront with me...they didn't know what rights they might have. It was a non-union orchestra, however, I believe some of the first desk players may have been union members.
As to a recording fixed by an individual taking it down from a radio broadcast...we all remember from the famous Betamax case, and the notion of "time shifting." I do not know if the Bono law addresses this or not, but one can question if an individual has any ownership of such a recording. While I have not kept up on it, I recall that last year or so, there was a revision to the law whereby some ownership could be ascribed to such a recording to the extent to its valuation as a donation. For example, in the past, if you were to donate a "unique" recording of a broadcast performance to a 501 c 3, you could only claim value for the recording media...cost of the blank tape, or whatever. I believe now one can have the item appraised for the value of the content, hence, if you have the only copy of a broadcast of something of value, it could be appraised at the value of the content...which of course is a curious contradiction of a sort...as you might not "legally" own the
content.
One other aspect worth mention is the sale of broadcast recordings. While one can still find them on ebay from time to time, and find them in the sales lists of major dealers, I believe the sale of any broadcast transcription MAY be considered illegal.
Typing this, a thought came to my mind...as LoC preserves all of that pre-1957 recorded history of ours, it might be possible for them, assuming they can make adjustments for any mechanical rights involved, to post it all to a server outside the US and share it with the rest of the world, but not make it available to anyone subject to the US copyright laws, unless that individual travels to the Library.
Karl