First, the obligatory I'm not an attorney, etc., etc.
Malcolm's question is easy, I think. A CD could be copyrightable as a
compilation or a new work when it includes extensive restoration of a
pre-'72 recording. Mal's station would not have to pay the
federally-mandated fees unless Mal decided to copyright that CD as a new
On Tom's issues about what state you webcast from, no pre-'72 webcasting
issues have been codified or argued in state courts, to my knowledge. As I
wrote earlier today, SoundExchange, a label, or an artist or artists'
estates could file suit against a webcaster of pre-1972 recordings. In my
opinion, it's unlikely, at least in the case of 78s, because there's no
money in it. Companies don't even keep them in print, etc.
Those who attended the ARSC conference last year in Seattle will recall
attorney David Levine's talk on Naxos/Capitol. He believes that with state
boundaries being irrelevant on the internet, someone could be shut down even
when complying with a law withing their own state. Conjecture, but he's an
Tom, I believe that every state but one (Vermont? Can't recall) has a law
protecting rights holders of recordings. None of these laws to my knowledge
reference the internet; they were written before 1972. Any could be changed
at any time, of course. But again, music copyrights are federally protected
and a webcaster of post-1922 music should be paying ASCAP and/or BMI and
maybe Harry Fox.
Attorneys for public institutions which post copyright-questionable
materials on the web measure what they call "acceptable risk." Posting
Edison recordings, which don't seem to be officially in the public domain,
seem to be acceptable risks. If I were to create a webcasting stream of
"Billy Murray 24/7", I doubt if anyone is going to come after me. "All
Beatles All the Time" is another story.
The number of US recordings still protected by state laws, but completely
out of print, is in the hundreds of thousands. I live in DC and have no
congressperson to complain to. Maybe some of you who care about this issue
would like to express your opinion to your representatives. They probably
don't subscribe to ARSCLIST.
On 7/18/07, Mal Rockwell < [log in to unmask]> wrote:
> Sam -
> So if I go down to my local radio station - and Maui does have a
> non-profit, low power (50 watts), simultaneous webcasting station that
> all the jocks program their own music on - and play my pre-1972 78s, 45s
> & LP's on a turntable, the station is not liable to pay any webcasting
> But if I transfer the originals to a personal CD the station will have
> to pay a fee if I play it?
> Just making sure what's what here.
> Sam Brylawski wrote:
> > Internet radio may be crucial to promotion of historical recordings,
> > but if
> > an internet radio station plays only 78s and early LPs in their original
> > form, i.e. not from CDs, the recent webcasting fees do not apply.
> > Pre-1972
> > sound recordings have no federal copyright protection and digital
> > dissemination fees cannot be collected for streaming them.
> > That said, SoundExchange could always try to go after internet
> > streaming of
> > pre-1972 recordings through state courts, and music copyright fees
> > apply to
> > all recordings of post-1922 music. But again, this controversy does not
> > apply to any recording pressed before February 15, 1972.
> > Sam