Don, here's your answer:

The "Bear Family" court decision – acknowledgement of IPR protection  
for restoration work

Readers of the "Indicare" Newsletter will no doubt remember the "Jib  
Jab" incident in the recent US presidential election (cf. Böhle 2004).  
In this, the current copyright owners of Woody Guthrie’s "This Land is  
Your Land" took action against the owners of the JibJab website for  
unauthorised use of the work in a parody on the US election. One of  
the ironies of the case was that the melody of the Guthrie song was  
itself not an original composition but the reuse of a song of  
undetermined origin which had been copyrighted by A.P. Carter of the  
Carter Family recording artists in the early 1930s. Many references  
were made in the discussion of JibJab to currently available  
recordings by the Carter Family, most frequently to a box set produced  
by a company called JSP located in London.

Precisely this box set and second box of recordings by the Carter  
Family were the subject of a court ruling by the Hamburg district  
court (Landgericht Hamburg, 3 February 2004, cf. Byworth 2004). This  
was the result of action taken by the German specialist label, Bear  
Family, against the unauthorised use, by the London-based company, of  
recordings originating from a 12 CD box set "In the Shadow of Clinch  
Mountain", which contains the complete works by the Carter Family with  
audio restoration work commissioned and paid for by Bear Family. Such  
work is protected as intellectual property even if the recordings  
themselves have passed into the public domain and can theoretically be  
reissued by anyone. Such intellectual property rights on restoration  
work are indicated by the (p) sign, which can also apply to a  
compilation.

The court decision was taken in the absence of the defendant, the  
owner of JSP, who had previously been ordered to refrain from the  
manufacturing of the box sets containing copied recordings. The  
conviction was for improper business practices and the court  
instructed the British company to provide Bear Family with all  
information relating to production and sales of the box sets and to  
provide compensation for damages resulting from production and sales.

The decision was based on testimony by an expert witness, but the  
decisive factor was the inclusion in both sets of a unique recording  
which had been tracked down by Bear Family.While both companies’  
countries are members of the European Union, the Hamburg court  
decision had to be registered at a British court to take effect, which  
again required the services of a lawyer, another cost which most  
producers would not be willing to take on even temporarily. Even so,  
the court decision, which Bear Family’s lawyer, Ulrich Poser,  
describes as "path breaking for the branch" (cf. Anon 2004) has  
actually resulted in the payment of substantial damages and has  
encouraged at least two more producers to take action against another  
German company which is notorious for its piracy practices.

A collector, who also writes for a web-based publication on film music  
(Schlegel 2004), describes how this German company pirated copies of  
film soundtracks. Among other things, he attempted to invoke  
assistance by the German collecting society, GEMA, which was initially  
very reluctant to take any action. When it finally did, it emerged  
that a license for intellectual property on the soundtracks had been  
registered in the Czech Republic, preventing action from any lawful  
owners.

As readers who have come this far will have guessed, piracy of audio  
restoration work is far from exceptional. Bear Family has thus taken  
the consequence of adding a water mark to its own productions.  
According to Bear Family director Hermann Knuelle, such watermarks are  
tamper resistant, while allowing "legal" copying, for example for use  
on devices such as MP3 players belonging to the owner of a copy of the  
recording. The watermark remains perceptible even after extreme  
compression, independent of recording technology for copying  
(microphones, radio, connecting CDs to sound cards) and presumably  
following further audio processing by any third party. It can be  
"individualised" to the extent that a copy is traceable to a  
particular copy of a series. Of course it is inaudible (cf. Fraunhofer  
IPSI).



> Date:    Fri, 16 Sep 2011 21:53:21 +0000
> From:    Don Cox <[log in to unmask]>
> Subject: Re: Copyright law. Europe
>
> On 15/09/2011, Michael Biel wrote:
>
>> On 9/14/2011 8:55 PM, Steven Smolian wrote:
>>> This was in response to the passing of the European copyright
>>> extnsion for sound recordings.
>>>
>>> Steve Smolian
>>
>> I figured that, but what would make LP sources or pre-recorded tape
>> any different from any other sources of the sound as long as the
>> recording pre-dates the cut-off date? Using an LP or issued tape of
>> perhaps a 1956 recording would be no different than using a 78 or 45
>> of it. Now if you mean a restoration re-issue of it, we have always
>> had a disagreement with the pirating of somebody else's restoration,
>> and that is often a problem with CDs, especially the cut-rate box
>> sets.
>>
> A restoration is a new recording and should be in copyright.
>
> The problem is how to prove that one digital audio file is derived  
> from
> another. A simple level change will alter all the numbers.
>
> And has anyone ever taken a "restoration thief" to court?
>
> Regards
> -- 
> Don Cox
> [log in to unmask]



Doug Pomeroy
POMEROY AUDIO
Audio Restoration & Mastering Services
Transfers of metal parts, lacquers,
shellac and vinyl discs & tapes.
193 Baltic St
Brooklyn, NY 11201-6173
(718) 855-2650
[log in to unmask]