Wednesday, 15 June 2016

Copyright in digitally remastered recordings

I read recently (here in Billboard and Music Law Updates) about a case in the USA in which it was argued that when a digitally-remastered recording was broadcast, it was not a broadcast of a much older recording (originally in analogue form) and therefore escaped the need to pay. It turns on a point of US law, at the intersection of State and Federal law, which makes the status of pre-1972 recordings debatable. That goes beyond the scope of this blog - but it led me to some thoughts about how copyright works when sound recordings are remastered.

I don't like the basis on which that court in California decided its case: which is not to say that I think the judge was wrong, because it's their law and it's not for me to say what is and isn't the legal position. But I do think that, if the principle is that a remastered recording of an earlier recording is a new copyright work, that's not right.

I've thought this instinctively for some time. Now I think I know why I feel that way. The way I see it, a recording is what is made of a performance of some sort. I know that the law doesn't define a sound recording in that way but perhaps it should - perhaps it's the definition of a sound recording that's wrong. Take, for example (because I happen to be listening to it), Kind of Blue. Some might say not the best example because the 1992 digital remastering changed the key of the music - but I don't think it makes any difference. Miles Davis and the other members of the sextet played the music in 1959 and a recording was made. No new recording was made in 1986, 1992, 1997 or 2005. To my way of thinking, there is only one recording, one copyright work: subsequent productions are just that, new productions of the same recording. No separate copyright should subsist in the remastered version. That isn't, apparently, the state of US copyright law, and it probably isn't the state of UK copyright law - but I think it should be.

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