I support the proposition of Jon Noring re: the older recordings, think he
has some great ideas, brainstorming. sounds like a win win situation all
around. Smithsonian would be a great place for these to reside/be an
accessible part of our heritage.
Kathleen Williamson, Tucson
> Everyone,
>
> It recently was said (and I consider it a revelation) that today's
> "Big Three" recording companies (Sony, BMG and Vivendi/Universal) who
> (reputedly) own the copyrights to the performances of most pre-WWII
> sound recordings, are very resistant to license them out to third
> parties for re-issue because they simply do not know the contract
> royalty history which may exist for these older recordings. It appears
> safer for them to simply not grant permission for re-issuing
> considering the royalty revenue will be so meager to justify doing a
> legal analysis for the more obscure recordings -- it's simply not
> profitable to them and may expose them to significant liability.
>
> Unfortunately, the recording companies of the 1920's and 30's were
> quite lax in keeping accurate records of any royalty contracts they
> made with recording artists and musicians, and since the ownership of
> these recordings have changed hands a few times over the years, what
> little paperwork was there has totally disappeared -- on both sides.
> Thus, there is a fear that the estate of some older, obscure musician
> or band leader may come out of the woodwork and sue for royalties or
> similar compensation. It's an annoyance the recording companies simply
> prefer to avoid.
>
> The real effect of this is that a huge part of our musical heritage,
> literally hundreds of thousands of recordings, is defacto "locked
> away" from the public in the U.S. (supposedly all sound recording
> performances actually issued before 1953 are public domain in Canada,
> Australia, England and elsewhere, so I've been told, but that's a
> separate issue.)
>
> This got me to thinking the following:
>
> 1) The recording companies who hold this catalog of material may
> themselves find it an albatross around their neck. The cost of
> archiving and maintaining the original metal parts to these older
> recordings probably far surpases what they ever will get out of it
> themselves by re-issuing, or authorizing for re-issue, the tiny
> fraction which has wide-enough popularity to take any chance on.
>
> 2) If the recording companies are able to donate this material to
> either the public domain (if possible) or to a non-profit, they
> may be able to claim a corporate tax deduction whose amount may
> far surpass the profits (if any) they will ever derive from this
> catalog before it lapses into the public domain in the U.S. Or,
> they could sell their rights to it for $1 to someone and claim a
> significant loss for the tax year. (and many other possibilities.)
>
> An added benefit for the recording companies to donate this material
> so it becomes publicly available, is the positive PR they will get
> in doing so (and the recording companies, as represented by RIAA,
> are certainly not well-loved these days and in need of anything
> positive in the public's eyes), and it will help to defang arguments
> that longer copyright terms will inevitably keep material locked
> away from the public for decades, if not centuries.
>
>
> Item #2 is the one which interests me. However, from my lay perspective
> I sense that at present U.S. law (and/or our international treaty
> obligations) does not allow donating copyrighted works to the public
> domain. The rights of the recordings could certainly be donated to
> some non-profit or similar organizations, but then there are the
> potential liability issues (the "encumberances") to the donor and
> donee alike regarding the unknown 60-70 year royalty contractual
> issues as noted above which could jump out of the woodwork. And then
> there is the aspect of corporate tax deductions, etc., to consider.
>
> So, this seems to indicate to me that Congress needs to step in and
> pass legislation which would allow (and encourage by appropriate tax
> deduction allowances or other mechanisms) copyright owners to donate
> certain older works either to the public domain or to an independent
> 501c(3) non-profit. In addition, any potential contractual
> encumberances would be declared null and void. Other terms may be
> necessary such as a public comment period (so estates can file their
> royalty contract claims which would be honored in some fashion, maybe
> by a tax deduction, if they can prove it with authentic documentation.)
> No doubt there are other possible mechanisms to consider.
>
> (Interestingly, those in Congress who wish longer copyright terms may
> see this as a positive thing to do since it defangs some of the
> arguments against copyright term extensions, such as longer terms
> locking away material from public access, and that it becomes much
> more difficult to track both copyright ownership and contracts related
> to copyright ownership, such as royalties -- which is exactly what we
> see here for the older recordings.)
>
>
> So, I'm hoping this will encourage some "theoretical" legal discussion
> as to the correctness of some of the comments mentioned herein, and to
> ponder the general idea of donation of copyrights to the public domain
> and related issues.
>
> Thanks.
>
> Jon Noring
>
>
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Received on Thu Aug 21 2003 - 01:45:00 GMT
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