Copyright in off-air recordings...

TonyRees

Hi all, the next batch of rare/interesting recordings I was thinking about putting up (or not - see below) are off-air recordings of various performers live in concert - Bireli, Boulou+Elios Ferre in Paris, Latcho Drom and Paris Combo in Australia are the ones I have to hand - mostly broadcast on Australian radio, tho' at least the first is a re-broadcast of an original BBC recording, see here: http://bufvc.ac.uk/tvandradio/ilrsharing/index.php/segment/2117 . I note the remark for this holding in the relevant archive, namely: "For copyright reasons, the recording of this item is not available online." So from this I am inclined to think that I cannot put any of these online - but where does the copyright reside? I know the performers and also the writers of the material have copyright, but what about the organisations that recorded and/or broadcast them? The shows in question range from 1985 (Bireli at Cambridge with Diz Disley) through to the early 2000s... maybe I am not supposed even to have recorded them off the radio, I don't know... Any thoughts? Regards - Tony

crookedpinky

From a totally non informed person, i.e. me, I remember back in the 70s recording things from the radio to a cassette tape. At the time I know there were warnings about recording radio broadcasts and records. As you say the composers/publishets have copyrights but then the broadcasters and record companies have a copyright in the broadcast and the physical/digital recordings produced.

But in thus day and age with youtube and social media in general I think that, while technically still enforceable, copyright seems to be ignored.

billyshakes

I would think there is another dimension to this. I am also a non-informed person, but you are not deriving any monetary benefit from the release of these recordings. If anything, I might argue that your release of these recordings might cause interest in some people to find the actual recorded output of these musicians and purchase those records. If those recordings are still actively published, you are in essence providing free marketing for the band.

Another consideration is that you are very likely not depriving the band of income. Let's take the Led Zeppelin reunion at the O2 Arena in 2007. I remember seeing cell phone videos on youtube the day after the show. Very quickly, however, the band got those videos removed. No doubt, this was so they could release their own recorded/produced version of this show as a commercial product. If there were alternate recordings of that show available (albeit of inferior quality), it would or could affect their ability to market and sell their version.

Your WASO show was never intended to be released and your recording of that show might very well be the only recording of it in existence. Similarly, any off-air recording you have might be like the Savory Collection, mostly recorded off-air directly onto records, and the only known copy in existence. Some of these Savory recordings (e.g. Django and Duke) may never be released as commercial product because it might require the tracking down of every heir of every player in the given band to release the rights as recording rights were likely never in the original contract to perform on air. But again, this is because they are releasing commercial product for profit. You can hear them if you go to the museum as they are given for educational or research/study purposes as part of the museum collection.

I fail to see what damages either the artist or the broadcaster would suffer by your releasing these programs, without charge, to a forum largely devoted to the study, research, and catering of the history of this style of music. Just my two pennies.

TonyRees

Hi crookedpinky and billyshakes, thanks for the replies to date. I think in the present case there are some issues different to audience recordings (which themselves might be classed as bootlegs and some sites refuse to handle the sharing of, as mentioned further below).

The first is that, such these shows were originally public broadcasts, it is very unlikely that mine are the only audience copies in existence - although we do know of cases where shows have survived only in a very small number of audience copies (I am thinking of the folk world here, my main area of knowledge, also some early episodes of TV series), so they most likely have less important "archival value" than shows for which I may have the sole known recordings.

The second is that, being produced in the moderately recent era when tape costs, etc. are not an issue, the shows presumably exist in the broadcaster's archives (in original 10/10 quality) and are capable of being re-released by such if a commercial opportunity was seen (for example legitimate releases by the broadcaster of "Live at the BBC", "The Peel Sessions", etc. etc.) so there is a potential argument for infringing future commercial releases by the copyright owner.

Third is that there seems to be some distinction between "physical sharing of copyrighted material" for personal use, and uploading to file sharing networks; the former may be legal but the latter not (but all somewhat confusing and quite likely also varying by jurisdiction (see https://en.wikipedia.org/wiki/Copyright_infringement#Noncommercial_file_sharing), and different forums may have different attitudes to this - and also not wish to be exposed to copyright infringement suits. I know that when I mentioned on the Steve Hoffman music forum that I could supply some copy of an audience recording - not gypsy jazz - of a well known band off a bootleg CD (originally an audience recording) in response to an enquiry, I was told I could not say this and the post was taken down, the justification being that the forum owners could not afford for it to become a site for the distribution of bootleg recordings. There is also the issue of - let us say that hypothetically I were to upload such a recording to the present forum, or give a link as to where it can be obtained, whether it would be myself or the forum that might be exposed to copyright infringement actions, or maybe even both...

That is why I am hesitant about public sharing of these materials. I am aware that many off-air as well as audience recordings might be available via other platforms e.g. youtube, but the latter has its own policy of removing contentious content at the request of the copyright owner, also uploaders can find their accounts blocked. In addition I imagine, before uploading, one has to sign "something" to the effect that one owns the copyright to whatever is being uploaded (or perhaps not, on the basis of all the material that is up there...)

Any additional input from others - or perhaps from the forum owner is of course welcome.

Regards - Tony

TonyRees

I have done a bit more sleuthing - mainly from https://copyright.unimelb.edu.au/ (perhaps Australian law, perhaps more widely applicable)... some relevant points:

(quote): Sound recordings protect recorded sounds, both musical and non-musical. It includes recorded music, songs, audio books, sound effects, audio recordings of speeches & interviews, audio podcasts, soundtracks etc. Radio broadcasts of sound recordings are protected by a separate category. For example, when a song is played on the radio that song is protected as a sound recording, but an additional & separate copyright is created in the broadcast. A recording of a radio broadcast would be protected as both a sound recording and a broadcast.

(quote): Copyright in a radio broadcast (but only the broadcast, not the underlying sound recording) will be owned by the broadcaster, i.e. the station on which it was aired. ... Copyright owners of radio broadcasts hold the right to record or make copies of the broadcast, rebroadcast or communicate the broadcast.

(quote): Duration of copyright in published sound recordings is 70 years after the end of the first year published, however is expired if created before 1 January 1955.

(quote):  Format Shifting

Format shifting is similar to space shifting but the copy is rendered into a different format; for example, a video recording is transferred to a DVD or an audio cassette recording is transferred to a CD. Under this provision in the Copyright Act, only material that you own can be format shifted and it is limited for personal use only. Not all types of material are covered. For example, you can scan a book, magazine or photograph into a digital format, print out an e-book or reformat a video onto a DVD, but you are not permitted to format shift computer games. Certain other limits apply:

• This provision is limited to personal use only. If you wish to format shift for educational purposes, there are limited provisions under the Statutory Licences. It must also be possible to format shift material for educational purposes under the 'Certain Special Purposes' provision. Contact the Copyright Office for information.
• You must own an original/non-pirate copy of the item being reproduced. It is not permitted to make a copy of an infringing item.
• You must also keep the original work. It is not permitted to make a reproduction and then dispose of the original. If the original copy is sold, traded or given away, then the reproduction must be destroyed.
• You cannot make copies of sound recordings that have been downloaded from the internet, e.g. a digital recording of a radio broadcast or a podcast, unless permitted under the Terms & Conditions of the web site.
• You may not make additional copies of the reproduction. However it is permitted to make a incidental temporary copy in the technical process of making a reproduction, so long as the temporary copy is destroyed as soon as practical.
• The reproduction cannot be uploaded onto the internet.
• The reproduction cannot be played or performed in public or broadcast.
• The reproduction cannot be sold, hired, traded or given away.
• It is not permitted to circumvent a Technological Protection Measure (TPM) in order to make a copy of the item.

So my conclusion is that it all looks too hard / fraught with problems!

billyshakes

Thanks for looking into that, Tony. You were wise to look at Australian law as that would probably apply to you. Each country has slightly different copyright law and also publishing laws. This is why some albums are only released in their native country, similar also to why we have region coding in movies. That said, the fact that this board's servers reside in the US might mean there is a case for bringing US case law into play. In international law, unless decided by contract or treaty, venue is something that either side would argue to establish to their own advantage.

In the US, the notion of "fair use" is built into copyright law to allow for people such as teachers or historians to reproduce works for the sake of commentary, study, criticism, parody, etc. Here's a relevant section:

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Section 107 of the Copyright Act defines fair use as follows:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. and the effect of the use upon the potential market for or value of the copyrighted work.

You can find more discussion of each of these points here: https://www.dmlp.org/legal-guide/fair-use

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So, it would seem to me that if you were to start a thread where you post two different broadcasts of the same band separated by several years to see if their musical ideas had evolved, or to another thread to compare the styles of two different players soloing over the same song(s) (maybe even just how each solos over a major key song, minor key song, certain chord progression, etc), the deeper discussion in the link says all of these would legitimately be covered under fair use. Interesting for me is that my gut on both a) your not for profit goal to bring these forgotten musical performances to light to this group of enthusiasts (as opposed to charging us for them) and b) my Zep potential market value point seemed to align with some of these factors. <Gasp> Could it be our policy makers actually wrote something that might be common sense?? (Maybe not so fast, if you ask Rick Beato and other youtube channel content creators. But that is another discussion.)

In the end, you have to do what you feel comfortable with. At the most, for something of so little value you and Michael might face a "cease and desist" takedown notice. More likely, the original copyright holder would recognized the scholarship purpose under fair use and not bother. It is admirable your desire to do the right thing here, just as it is admirable that you chronicled and preserved these recordings in the first instance. Whatever you do, you have the tip o' my hat in thanks.👍️

TonyRees

Hi Billyshakes,

Thanks for the input. Australia also has a provision for "fair dealing" - however it only covers "The provision only applies to material being copied for your own research and study." Hence I should imagine would not cover posting to the internet...

Basically at the end of the day I would be glad to donate copies of these broadcasts to some archive or person for safe keeping and/or any other subsequent use, but would appear to be prevented from doing so by the clause above "The reproduction cannot be sold, hired, traded or given away." Maybe if the recordings are ever re-broadcast in other countries, other provisions may apply, but till then who knows...