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.

Extending the term of copyright protection

For sound recordings, that is. Directive 2011/77/EU requires us (and the other Member States of course) to extend the length of copyright term in sound recordings and performers' rights in sound recordings from 50 to 70 years. It also makes specific provision for performers and provides for harmonisation of the copyright term for co-written musical compositions with words.

The government, through the agency of the Patent Office, has issued a consultation document seeking the views of "stakeholders" on how this should be achieved - although at one level there is no surprise about it: there will be a statutory instrument under section 2(2) of the European Communities Act 1972 and the Enterprise and Regulatory Reform Act 2013. The precise wording is what the consultation is about.

The draft SI proposes to make some changes (of course) and insert some new sections - sections 191HA and 191HB, which always makes me feel uneasy. There must come a time when inserted sections like this attain critical mass and a new statute is passed - mustn't there? I suppose not, because we must have passed that point long ago. Perhaps a response to the consultation making the point that a consolidating and amending statute would be more to the point, but there's a fat chance of ever getting that, at least not for the foreseeable future.

There is also a new section 10A, which deals with works of co-authorship, which are not to be confused with works of joint authorship. The latter are collaborations in which the different contributions cannot be separated: the former, the new creation of the Directive, are songs, or other works comprising words and music. The composer and the lyricist or librettist are constituted co-authors, and are treated for copyright duration purposes in the same way as joint authors. Often, songs are co-authored by two or more people: although Lennon and McCartney put their joint names to the songs they wrote one or other would be the principal author, so that's not the best example, and I don't know how that other classic partnership Jagger/Richards works - but take a classic example of how copyright can become confused (and a composer whom I once met, as it happens), West Side Story. Leaving Shakespeare out of it, the co-authors are pretty clearly Leonard Bernstein and Stephen Sondheim, although there are enough other people involved to make it too difficult for the BBC to clear the rights for a performance at last year's Proms (a matter which I wrote about at the time). So I think the outcome of the amendment to the law will be that copyright in, say, America will last for 70 years after Sondheim dies, doing Lennie's estate a considerable favour for, it has to be said, no clear and compelling reason.

As for copyright in sound recordings, the new law will - much as the 1995 extension of copyright term worked - give the additional period of protection to sound recordings that are protected when it comes into force (should I be using a subjunctive there somewhere?). At present, a sound recording is protected for 50 years from when it is made or from first release if that takes place during that 50 years. Record companies are not in the habit of investing in having sound recordings made and then sitting on them for that long, so one might think (and I believe I have told people attending training courses this) that the second part of that rule is hardly ever going to come into play.

Well, that used to be true (I think) - but it isn't now. What if someone - a great singer-songwriter, perhaps - made recordings early in his career that remain unreleased as he approaches, say, his 72nd birthday (and the recordings attain the magical age of 50, and he also approaches the milestone of 2,500 shows in the so-called Never Ending Tour which started in 1988)? Well, what would happen is that someone at Sony would realise that those old recordings had better be released while they can still benefit from the second part of rule about duration of protection: and the result would be a limited edition, 4CD set, ostensibly marketed as The 50th Anniversary Collection but widely known as The Copyright Extension Collection. The story is on the Rolling Stone website, and lots of other places.

There are probably few other artists whose 50-year-old outtakes are quite so valuable. Most of the stuff on the new set has circulated in bootleg form for decades, but I guess that for a small outlay which is probably covered many times over from sales revenue Sony secure the copyright in these recordings which otherwise would soon have been appearing all over the place. In so doing, they have created a collector's item which is already selling on eBay for well over $1,000 a copy (it was not, naturally, released in the US, only in the EU).

What I don't know is whether Dylan will see much benefit from the latest release, and my greatest reservation about the extension of copyright in sound recordings is that it will not benefit many of the musicians who might need it. The money is likely to go to the record companies. But a lot of musicians will have taken ownership of the copyright when their record companies deleted the LPs from the catalogue, which is how companies like Angel Air thrive. So copyright extension might not be too much of a bad thing - although it seems that Norway doesn't like it, as this article in Aftenposten makes clear, for the well-rehearsed reason that it will tie up cultural material without encouraging the creation of anything new. I suppose that at least that argument does not apply to Dylan - he is still creating, although he is also accused of plagiarism from time to time - but he doesn't actually seem to need the encouragement.

Martin Kretschmer on copyright term extension

An excellent comment on the cost of extending the duration of record companies' rights.

More copyright for sound recordings: Does the Directive pass the Stackridge Test?

Well, longer, anyway. The Council has accepted the record industry's special pleading, led by Sir Cliff Richard after whom the law is already unofficially being named, and adopted the long-mooted directive to harmonise copyright protection for sound recordings at a higher level than the 50 years provided for previously. They did not go up to 95 years as the lobbyists had wanted - harmonising the term with the US, which would have ignored the lack of protection in that country for performers's rights - and kept it to 70 years. The Press Release on the Council's decision is here and it links to the new directive.

Should we be welcoming this development, or ruing it? In many ways it depends on where you stand, although one thing that has to be said (as the IPKat pointed out the other day) is that this legislation fails to pass the Hargreaves test of evidence-based policy-making. It's good for record companies, of course, but they don't attract a huge amount of sympathy these days. It doesn't make any direct difference to songwriters, because their copyright already lasts for 70 years PMA - although it's possible that records will remain available for longer under the new law, so they might earn more for their musical and literary works. What about the performers?

I have posted on this subject before. When the topic first came up, it seemed to be driven by the record industry trying to get extra protection for some valuable properties. They got the performers to lobby for their cause, of course, because the public would be more sympathetic to them than to the industry - producing that memorable full-page ad in the papers with 2,000 signatures, including those of two deceased performers. In working out where I stood on the proposal, I adopted the Stackridge Test: would the benefit accrue to the musicians whose pension funds could do with a little topping up, or would the record companies clean up?

The answer I got (thanks to Mike Tobin, and through him Peter Purnell of Angel Air Records) was that the terms of recording contracts provided for the rights in the recordings to pass to the artists when the record company decided to remove the disc from the catalogue. So the musicians whose work I enjoyed back in the seventies get the right to arrange for new editions of their work, like the Stackridge back-catalogue on Angel Air. The extra term can benefit them, not invariably the record companies. And their pensions get a boost. On that basis, I decided that this was an OK law: not great, but certainly not altogether bad - perhaps a bad law with redeeming features.

What we have now is an increase in the duration of protection to seventy years from release, with a proviso that if the phonogram is not being offered to the public the performer can terminate his or her rights in the fixation of the performance - using the rights performers have in their performances as levers to take over the copyright in the sound recordings, thus neatly overcoming the problem that those rights can't simply revert to the artists because they never owned them in the first place. So the directive satisfies the Stackridge Test up to this point.

Where it looks to me as if it will fall down is that there is no need any longer for a phonogram (which includes a recording made available in immaterial form) ever to be deleted from the catalogue. The record companies can, if they are so minded, ensure that copies are always available to the public. The "reversionary" rights might never come into play, and while Stackridge won't lose what they already have musicians who haven't already gained control over the copyright in their sound recordings might find the new law has little to offer them.

Or am I wrong?