SOUND RECORDING COPYRIGHT IN THE UK
It was the Copyright Act, 1911 which first gave British record companies the right to prevent the unauthorised copying (duplication) of their sound recordings – for a term of 50 years from the date of making of the original master. Later, a landmark 1934 court ruling established that the companies also had the exclusive right to control the public performance of their recordings.
The Copyright Act, 1956 (which came into effect on 1st June 1957, superseding the 1911 Act) officially enshrined the principle of the public performance right for sound recordings (now extended to include broadcasting) and retained the 50 year copyright term, to endure from the end of the year in which a recording was first published (i.e. first made available for public sale). However, the Act provided that the period of copyright in respect of any recording made before 1st June 1957 was to endure from the end of the year in which the recording was made (i.e. making of the original master), rather than first publication.
On 1st August 1989, new copyright legislation came into force – the Copyright, Designs and Patents Act 1988 (CDPA), which supersedes the 1956 Act. The purpose of the Act (and its subsequent amendments) is to harmonise copyright law in the UK with that of her European Union (EU) partners, as well as to comply with certain international treaty obligations. Under the current legislation, the duration of the sound recording copyright term remains unchanged (50 years), but is now to endure from the end of the year in which a recording is made, or if published within the original term, the end of the year in which it is published (whichever is the later). If, during the original term, the recording is not published but is nevertheless made available to the public by being played in public or communicated to the public, the term of copyright expires 50 years from the end of the calendar year in which it is first made available.
Importantly, the CDPA also confirms that the term of copyright in any recording made before 1st June 1957, whether published or not, is to endure from the end of the year in which the recording was made.
In July 2008, the EU Commission adopted a proposal to extend the copyright term in respect of sound recordings. It is understood that the 50 year term will be extended by 45 years, so that recordings will then be protected for 95 years. However, the new legislation will possibly not be retroactive and would apply only to those recordings still in copyright on the date of commencement of any national legislation. The term extension will also affect the rights of performers (see below).PERFORMERS’ RIGHTS – A NEW DIMENSION
The CDPA added an important new dimension to UK copyright law: Performers’ Rights. These give a performer the right to control (and benefit from) the exploitation of his or her performance. Previously, artistes and musicians were forced to rely on various (and somewhat insubstantial) criminal laws in order to prevent the illicit recording and unauthorised use of their performances.
Now, Performers’ Rights are infringed by any person who, without consent and other than for private and domestic use, makes a recording of the whole or part of a live performance; broadcasts the whole or any substantial part of a performance, or makes a recording from any such broadcast. It is also an infringement of such rights to copy a recording of a performance, or to issue such copies for public sale.
Performance can mean a dramatic or musical performance and includes a reading or recitation of a literary work, so the new provisions benefit not just musical artistes and musicians but other performers such as actors, poets, authors and comedians. It is even possible (although debatable) that interviews and impromptu speeches may also qualify for protection.
Recording is defined as including a film or videotape, so a soundtrack can be considered as having the same protection as a sound recording.
The individual rights granted to performers under the 1988 Act are: a reproduction right (the right to authorise or prohibit the making of a copy of a recording of the whole or part of a performance); a distribution right (the right to authorise or prohibit the issue of copies of such recordings to the public), and a rental and lending right (the right to authorise or prohibit the rental or lending to the public of copies of such recordings). All these rights are property rights and may be assigned or dealt with as the performer chooses.
Only performances which qualify under the Act are protected. A qualifying performance is defined as being a performance given by a qualifying individual, or given in a qualifying country. An individual qualifies if he or she is a citizen, subject or resident of a qualifying country, meaning the United Kingdom (or any other EU member-state) or a country designated as enjoying reciprocal protection under the Act. Such protection is routinely afforded to those countries who are signatories to the international conventions on performers' rights, and whose own copyright legislation provides the minimum level of protection agreed upon.
Performers’ Rights endure until the expiration of 50 years from the end of the year in which a performance takes place, or if within that period a recording of the performance takes place, the rights continue to subsist from the end of the year in which the recording is released (here meaning published; played in public; broadcast, or included in a cable programme service). Importantly, these rights also attach to performances that took place before the coming into effect of the CDPA (1st August 1989), thus, as we shall see, it is possible for Performers’ Rights to subsist in a recording that is otherwise in the public domain. In my view, any commercial re-issue of such a recording could prove a risky proposition without the consent of the owner of the Performer's Rights.
As a result of the Performers' Rights provisions, qualifying artistes are entitled to share in monies distributed by Phonographic Performance Ltd (PPL) derived from the public performance and broadcasting of their recordings. However the PPL collection mandate does not apply to recordings which are in the public domain.New legislation has, subject to certain exceptions, granted moral rights to qualifying Performers in respect of their performance. These comprise the right to be identified as the performer whenever a performance takes place or is broadcast or released as a recording; and the right to object to derogatory treatment of a performance. However, these new moral rights do not apply to performances made before 1st February 2006.
RECORDING RIGHTS
Under the CDPA anyone having an exclusive recording contract with a performer in respect of a performance is now granted Recording Rights to prevent anyone else, without proper consent, from making a recording of that performance or causing an illicit recording to be played in public, broadcast, distributed or sold. Qualification for Recording Rights is the same as that for Performers’ Rights (see above), but can also include a corporate body which is registered in, or has substantial business interests in, a qualifying country. Recording Rights in respect of a performance endure until the expiration of 50 years from the end of the year in which the performance takes place, or if within that period a recording of the performance takes place, the rights continue to subsist from the end of the year in which that recording is released.
Performers’ Rights and Recording Rights are completely independent of, and are in addition to, any copyright in the underlying sound recording.
SOUND RECORDINGS AND THE PUBLIC DOMAIN
It is fair to say that only those sound recordings first published in the UK before 31st December 1958 can safely be considered to be in the UK public domain. That is, the recording copyright term (50 years from the end of the year of actual making, or publication in the case of recordings released between 1st June 1957 and 31st December 1958) has expired, and any corresponding Performers’/Recording Rights no longer subsist. A recording made before that date but not published until later may still be subject to these rights, despite the recording being in the public domain.
Example A: Artiste X makes a recording with Company Y in England in 1954, which is published that same year. As the recorded performance was given in the UK it qualifies for protection (regardless of the nationality of X), but since more than 50 years have now elapsed from the giving of the performance by X and the making of the recording by Y, both the performance and the recording are now in the public domain in the UK.
Example B: The 1954 recording by X is not published by Y until 1960. Although the recording is now in the public domain, X will have continuing rights in the performance (and Y will have Recording Rights in respect of that performance) until 31st December 2010.
Unpublished recordings such as alternative masters, studio out-takes, or those made for private or demonstration purposes are other examples of works that might well be in the public domain, but may nonetheless be subject to Performers’/Recording Rights.
Even foreign-source recordings may find themselves in the public domain in the UK. For example, up until the early 1950s, a joint licensing arrangement existed between RCA Victor in the USA and His Master's Voice (HMV) in the UK, whereby many of their respective recordings were published contemporaneously on the other's label. Today many an original USA Victor recording is in the public domain in the UK but still protected in its home country.
Some foreign sound recordings made or first published prior to 31st December 1958 but which were never released in the UK may also be in the UK public domain. Under the CDPA such recordings would have enjoyed reciprocal protection, and the duration of copyright in works afforded such protection cannot exceed the period laid down in the Act (i.e. 50 years in the case of sound recordings).
COPYRIGHT IN RADIO TRANSCRIPTIONS
Although copyright does not subsist in any radio broadcast made in the UK prior to 1st July 1957 (CDPA), many radio programmes were pre-recorded on disc or tape by the British Broadcasting Corporation (BBC) for the purposes of repeat transmissions or syndicated distribution to radio stations throughout the world. Off-air recordings also exist, privately made by individuals with access to disc or tape transcription facilities. All such transcriptions are treated as sound recordings for the purposes of the CDPA, and in determining their potential public domain status the existence of Performers’ Rights and Mechanical Rights (see Copyright In Works Reproduced below) must be taken into consideration.
As the duration of copyright for pre-1957 sound recordings extends from the date of making, only those transcriptions (including privately-made off-air recordings of a live broadcast) made before 1st June 1957 should be assumed to be in the public domain.
Incidentally, it is questionable whether the BBC could legally challenge, on copyright grounds, the commercial use of a transcription now in the public domain. Any dispute would more likely concern the rightful ownership of the actual transcription copy.
Although the BBC held the broadcasting monopoly in the UK until the 1970s, a few astute businessmen had earlier circumvented the monopoly by arranging for commercially-sponsored programmes, intended for British audiences, to be broadcast from European radio stations such as Radio Normandie and Radio Luxembourg. Many of these programmes were pre-recorded in the UK (on disc or film) for subsequent transmission outside UK territory. Although the broadcasts themselves do not fall within the ambit of the CDPA, the actual transcriptions, provided they were first made in the UK, would be regarded as sound recordings for the purposes of the Act.
SOUND RECORDING COPYRIGHT IN THE UNITED STATES
It may come as a surprise to learn that sound recordings first published in the United States before 15th February 1972 are not protected by federal copyright law. They are, however, likely to come under the protection of common law, or individual State anti-piracy or unfair competition legislation (where enacted). The Copyright Act of 1976 (which came into effect at the beginning of 1978) confirms that such protection will remain in place until 15th February 2047, when federal protection will commence.
Foreign recordings are similarly protected in the U.S., which is a signatory to the 1971 Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication.
Under the Uruguay Round Agreements Act (which became effective on 1st January 1996), federal copyright protection was restored for unpublished foreign sound recordings made before 15th February 1972, and for certain foreign sound recordings originally published "without notice".It may therefore be assumed that varying protection currently exists for most (if not all) pre-1972 sound recordings in the United States (for a more detailed overview see Who Owns Pre-1972 Sound Recordings?). A recent decision handed down by the New York Court of Appeals (Capitol Records -v- Naxos) confirms that State common law continues to protect pre-1972 recordings even if the source is in the public domain in another country. Although this decision applies only to one particular State, it is thought that the Appeal Court's interpretation of U.S. common law principles will have the effect of extending this protection to all other jurisdictions.
COPYRIGHT IN REMASTERED SOUND RECORDINGS
Today there are dedicated individuals involved in the restoration and remastering of public domain material from both the popular and classical recorded repertoire. Sophisticated audio restoration equipment and software now exist that can work near-miracles in removing the result of years of wear and tear and bring new life to the original recordings of the 78rpm era.
The question is often asked whether a new copyright can arise in a restored or remastered version of a sound recording which is in the public domain.
Since the CDPA clearly states that no copyright can subsist in a sound recording which "is (or to the extent that it is) a copy taking from a previous sound recording", copyright can subsist only in the original master and not in any copy (such as an individual pressing) or re-recording ("dubbing") made directly or indirectly from that master. For this reason many legal commentators are of the opinion that no new copyright can arise in any re-recording of a public domain work.
This may well be the case if the re-recording is merely a slavish transfer. But what if time and skill is expended, utilising the facilities of modern computer technology? Could the results justify a new copyright claim in respect of the restored material?
It is debatable as to whether merely removing "clicks and crackle" from an old record would qualify, as these artifacts are not usually part of the original recording but are most likely the result of manufacturing defects and/or subsequent wear and tear. It is possible, however, that the creative use of equalisation or special effects (such as reverberation or pseudo-stereo) in the audio chain, or even the making of an analogue to digital transfer, might well be sufficient to establish a new copyright in such a version.
In a recent copyright-related U.S. legal case, a British photographic agency, owner of a substantial library of photographic images of artistic works in the public domain, brought a breach of copyright action against a company who were reproducing some of these same images, without consent, for sale on a CD-ROM. In a controversial decision it was held that there was no breach of copyright, since the photographic images were mere slavish copies of works that were in the public domain (the judgment seemingly disregarded any skill involved in the making of those photographic copies).
On the other hand, the U.S. Copyright Office has publicly accepted that there can be a new copyright in a "colorised" version of a black and white movie.
Currently there is evidence that some commercial re-issues of restored public domain sound recordings are being openly pirated, perhaps on the assumption that no copyright can exist in these copies. The validity of such an assumption has yet to be tested in the courts.
COPYRIGHT IN WORKS REPRODUCED
Finally, be aware that any musical or literary work reproduced in a sound recording may be subject to separate copyright protection, irrespective of the copyright status of the actual recording. The right of a composer or author to control the making of any recording of a musical or literary work is known as the mechanical right, and a licence from the relevant rights owner (usually the publisher) in respect of a copyright work is mandatory before any re-issued recording is published. A royalty may be due and payable on each copy manufactured and sold.
In the EU territory, the term of copyright in a musical or literary work, whether published or not, lasts for the lifetime of the composer/author and expires after a period of 70 years from the end of the calendar year in which the composer/author dies. The work then passes into the public domain. The situation in the USA is more complex (see U.S. Copyright Office website for further information).
Even where a musical (or literary) work can be shown to be in the public domain in one country, it does not necessarily follow that it is in the public domain universally (for example, there are many well-known works in the U.S. public domain which are still protected in the UK and other countries).
The Mechanical Rights of copyright owners are usually administered by local
agencies, who issue the necessary licences and collect royalties on behalf of
their member-clients. In the UK, the agency is the Mechanical-Copyright
Protection Society (MCPS), whilst the Harry Fox Agency
(HFA) performs a similar function for owners in the USA.
