Good heavens!
Yes, the pre-1972 sound recordings are not subject to federal copyright, but
that does not mean they're not protected. To the contrary, they have
stricter protections because they're subject to state and common law, which
don't generally even have fair use or preservation exemptions. If they're
doing business in the U.S., they might be interested to read the Capitol v.
Naxos opinion from the 2nd Circuit...
The media change isn't time shifting (which the SCOTUS found to be fair),
but space-shifting, which I don't believe they've ruled on, but which (if I
remember correctly) the 2nd Circuit rejected in UMG v. MP3.com.
The fact that they've spent hundreds of ours on the project means nothing to
a court hearing copyright claims.
Incidentally, I haven't noticed this being mentioned yet, but those of you
following the Savory Coll. article may note that it endorsed bringing
pre-1972 sound recordings under federal copyright law, something which ARSC,
MLA and SAM have endorsed as well.
Cheers,
Eric Harbeson
Music Special Collections Librarian
University of Colorado at Boulder
[log in to unmask]
(303)735-1367
"Fair use should not be considered a bizarre, occasionally tolerated
departure from the grand conception of the copyright monopoly. To the
contrary, it is a necessary part of the overall design." -Judge Pierre Leval
"Toward a Fair Use Standard," "103 Harv. L. Rev. 1105, 1110 (1990)
-----Original Message-----
From: Association for Recorded Sound Discussion List
[mailto:[log in to unmask]] On Behalf Of Pete Tinker
Sent: Friday, August 27, 2010 1:50 PM
To: [log in to unmask]
Subject: [ARSCLIST] Ph.D. needs educating (copyright)
Hello, all! Educate me, please!
A web site that offers MP3s on CD media makes this claim:
> The pre-1972 selections on these MP3s are assumed to be in the PUBLIC
> DOMAIN. Further, they were digitized by the --company name-- team from
> analog sources in our archives. We spent hundreds of hours creating
> WAV files from our Records (78s, 45s and LPs) and Tapes (reel to reel
> and casette). The WAV files were later ripped to MP3s. If anyone has
> written proof that any selections are not PUBLIC DOMAIN, please notify
> this Web-Site. Those selections will no longer be offered for TRADE or
> SALE.
I say they are NOT PD.
1. They are advertised as from the 1920s-1030s.
2. They are not for "safe backup" by the owner of the original disks.
3. "Pre-1972" in the case of recordings from the 20s and 30s has no
bearing on the copyright limitation.
4. The media change (called "time-shifting," I believe) has no bearing
on the copyright issues.
I'll provide the URL for any requests OFF-LIST. I don't want to harm
the proprietors by publicly airing questionable linens.
Aside: The site is not <http://honkingduck.com/dp/>, but that site
allows web access to similar records. Apparently silenced in 2002
<http://mudcat.org/thread.cfm?threadid=46490&messages=29#689738>, it's
back now <http://www.mudcat.org/thread.cfm?threadid=49203>, with no
legal disclaimers.
Thanks in advance for any helpful info!
--
*Pete Tinker*
23257 Gilmore St.
West Hills, CA 91307
818-346-5213
818-694-5213 /(cell)/
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