Copyright status of pre-WWII recordings; germ of an idea for a "Project Gramophone"

Hello,

I am toying with the idea of setting up a non-profit organization to digitally preserve and make available (via an online archive) early sound recordings (up through the 1930's at least) along the lines of Project Gutenberg which does this for written works in the public domain.

One strawman name for this organization would be "Project Gramophone". I've even reserved the domain name 'projectgramophone.org' in the event I decide to move to the next step with this idea, and using this name. (Which I might not use -- other suggested names for this project gladly accepted.)

I'd like to better understand the specific legal grounds regarding this endeavor, both U.S. copyright law, and that in other countries.

I'm also under the understanding that Canadian and Australian copyright terms are different than that of U.S. copyright law, and that many recordings still under copyright in the U.S. have lapsed in Canada and Australia. Could a server be placed either in Canada or Australia to archive and distribute this class of works? What legal restrictions would those online archives be under regarding access from the U.S.?

What are other legal considerations I need to concern myself with? For example, I recall that sound recordings have peculiar differences from other forms of IP vis-a-vis copyright terms and other legalities. That is, the legal situation is more complicated than it is for written works. (I also realize that the songs for the recordings are separately copyrighted, and "Project Gramophone" will need to make the necessary arrangements for those songs still covered under copyright. I also assume that while a recording performance may be public domain in Canada, the song of the performance may still be copyrighted because of the 50 years after the death of the composer.)

Another question which has intrigued me is approaching the current major recording companies who (reputedly) hold the copyrights to many of the pre-WWII recordings. For example, Sony owns most of the old Columbia/ARC catalog; BMG owns the Victor/RCA catalog; etc. (I'm not sure who owns the Brunswick/Decca/Gennett/etc. recordings, EMI?) They would be approached to donate their rights to the recordings they own (hopefully along with the actual masters which still exist) to either the public domain or to the non-profit organization, in exchange for possible and significant tax write-offs and possibly other benefits. That would at least clear up the copyright issues on the recording side of the house.

[Note: From what I understand and hear, and my understanding may be incorrect, it costs the major companies much more money to maintain the old sound catalog than they derive back in income. But they are caught in a bind because a lot of the "low-run", lesser-known material *may be* contractually encumbered. That is, because the legal records of older companies they acquired recordings from were so sparse or essentially non-existent, they do not even know what contractual obligations they may have regarding royalty payments -- they don't know the full contractual pedigree. They are afraid someone representing the descendents of some long-dead and obscure band leader or musician may file suit seeking royalties. Thus the recording companies simply sit on and lock away most of this material (with only a tiny fraction of it being reissued), and only rarely will permit others to reissue it on request (they usually look the other way on "pirate" reissues so long as they are not so open and blatant, or reissue recordings of the few "big names" from that era, such as Duke Ellington.) It's not worth it for them to say yes, thus they just "keep it in the vault". Would legislation be needed to allow them to donate the material to the public domain absolved from any potential contractual liability and to secure other benefits such as a sizeable corporate tax deduction and the resultant positive PR that would give them?]

Anyway, your thoughts would be most appreciated. Right now "Project Gramophone" is simply in its pre-pre-conceptual stage, but every journey starts with the first step, and understanding (at least in the general global sense) the legal constraints the project must work under is certainly the first necessary step. Of course, if you have any interest in this project, let me know.

Thanks.

Jon Noring

(p.s., the following message was posted to the mailing list 78-L, which is the main forum for discussion of 78 rpm records and recordings. It is certainly not a legal analysis, but summarizes the general consensus, right or wrong, among 78 collectors as to what is permitted and not permitted with reissuing/distributing older recordings, specifically as regards to outside the U.S.:

(posted by David Lennick to 78-L):

Jon Noring wrote:

> It was mentioned to me that copyright on older recordings (such as the
> 1920's and early 30's) has lapsed in Canada.
>
> I'd like to know more about the details. Anyone?
>
> (I also plan to post this to CNI-Copyright for feedback from the IP
> experts there.)

Not only Canada, but most of the world except for the US..this has been discussed many times on 78-L, usually about once every 3 months for as long as I've been here. The situation is that a record (not the music, but the sound recording itself) is considered to be out of copyright 50 years after it was issued. Issued, not recorded. Thus, anything issued anywhere in the world up to December 31, 1953 will be PD on January 1, 2004 in Canada, England, most of Europe (I'm not sure if Germany went to 70 years, anyone know?), Asia, but not the US. This is how companies such as Naxos, Living Era, Pearl and other reissue labels operate. EMI is already on record as having disowned any claims of exclusive ownership to any of its recordings issued more than 50 years ago, which was why the Capitol-Naxos lawsuit was dismissed.

) Received on Mon Aug 04 2003 - 19:00:06 GMT