What exactly is an "inaudible watermark" on a sound recording anyway?



From: Doug Pomeroy <[log in to unmask]>
To: [log in to unmask]
Sent: Saturday, September 17, 2011 10:04 AM
Subject: Re: [ARSCLIST] Copyright law. Europe

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
Audio Restoration & Mastering Services
Transfers of metal parts, lacquers,
shellac and vinyl discs & tapes.
193 Baltic St
Brooklyn, NY 11201-6173
(718) 855-2650
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