Thanks, James. As a NY lawyer myself, I of course read the Naxos decision
with great interest when it first came out. It is neither fair nor
accurate. The NY Court of Appeals (where I myself have argued and won an
important case) went to great lengths to justify its nutty decision (it
finds NY state law copyright protection applicable to Casals recordings
made in the 1930's in London, which had long been in public domain in the
UK--the recordings themselves had nothing to do with NY) by citing a lot of
precedent, but when you examine that precedent, you see that it has not
been accurately cited or characterized, having been substantially
"reinterpreted" to justify the desired result. Frankly, what happened here
was that Naxos seems to have got way "out-lawyered." I don't know any of
the lawyers involved in that case.
State law has existed since the states have existed, and the body of mostly
property law, but also tort law, that has been applied to state law
copyright issues is anything but consistent from state to state. There is
no uniform body of pre-existing state law copyright law as applied to
recordings. In fact, existing decisions are fairly few, and the existing
precedents applied in contexts that have little relation to today's
technology. What is happening today, with state courts rendering decisions
regarding rights involved in pre-1972 recordings, does not fall back on any
kind of existing, well understood legal concepts relating to recordings,
and thus mostly represents new application of old concepts in a new
setting, although, as with the NY Court of Appeals, courts will go to great
lengths in their decisions to make it appear otherwise. What is happening
is in fact creating worse chaos from what is already chaos. Patents and
copyrights are properly subject matter for the federal government, not
state courts getting all creative. My pessimism is fully justified, I am
On Mon, Nov 3, 2014 at 12:57 PM, Wolf, James L <[log in to unmask]> wrote:
> While I agree with the overall pessimism expressed here, I don't think the
> characterization of state copyright laws is accurate. These have existed
> for a very long time and have explicitly applied to pre-1972 recordings
> since the dawn of federal sound recording copyright in 1972 . The ruling in
> the EMI v. Naxos case was, IMO, a fair reading of the law as it stands. The
> problem is that the current state of the law is actually that bad, and
> incentives for legislators to change it hardly exist, especially in these
> post-Citizens United days.
> All opinions personal, no reflection of Library policy or position, etc.
> -----Original Message-----
> From: Association for Recorded Sound Discussion List [mailto:
> [log in to unmask]] On Behalf Of John Haley
> Sent: Monday, November 03, 2014 12:32 PM
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] "UK opens access to 91 million Orphan Works"
> Thanks very much for posting that, Stephen. What a totally enlightened,
> simple good idea that is. Orphaned works still under copyright can be
> licensed for a fee (hopefully a small one) by the government, and then if
> someone comes forward claiming ownership (which as we know from ARSC
> research, is never going to happen 99.99% of the time), that person's
> rights can be established and acknowledged, and payment duly made. I
> presume that this person claiming ownership must provide adequate proof.
> Simple, fair and elegant. A "win" for everyone, including most of all the
> This system shows such decency and good sense that it probably has no
> chance of being considered in a country such as ours (US), where
> obfuscation and deliberate confusion of all copyright law seems to be our
> national goals. What is currently going on in US state courts with the
> active creation of new state copyright law for pre-1972 recordings that are
> not covered by federal copyright law, spurred on by New York's making up
> new state law some years back in the EMI v. Naxos case (in which "new"
> precedents are cut from whole cloth), is truly insane, exacerbating an
> already hopeless crazy quilt of wildly various state law. ARSC has been
> the only bright light on the horizon in offering real solutions. It
> becomes obvious that there are heavily vested businesses and institutions
> that prefer things the way they are.
> John Haley
> On Wed, Oct 29, 2014 at 11:47 AM, Leggett, Stephen C <[log in to unmask]> wrote:
> > https://www.gov.uk/government/news/uk-opens-access-to-91-million-orpha
> > n-works
> > "A new licensing scheme launched today (29 October 2014) could give
> > wider access to at least 91 million culturally valuable creative works
> > - including diaries, photographs, oral history recordings and
> > documentary films.
> > These works are covered by copyright, but rights holders cannot be
> > found by those who need to seek permission to reproduce them. Under
> > the new scheme, a licence can be granted by the Intellectual Property
> > Office so that these works can be reproduced on websites, in books and
> > on TV without breaking the law, while protecting the rights of owners
> > so they can be remunerated if they come forward.
> > Baroness Neville-Rolfe, Minister for Intellectual Property said:
> > The UK's trailblazing orphan works licensing scheme enables access to
> > a wider range of our culturally important works.
> > The scheme has been designed to protect right holders and give them a
> > proper return if they reappear, while ensuring that citizens and
> > consumers will be able to access more of our country's great creations,
> more easily.
> > The scheme also aims to reunite copyright holders with their works and
> > ensure they are paid for their creations, by requiring the applicant
> > to conduct a diligent search and allowing the right holder to search
> > the register of granted licences. "