On 29 April 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> Sound recordings and compulsory licenses gave me a headache when I
> studied Copyright. I have no doubt that there are others better
> equipped to field this question than I, but I'll give it a shot and
> subject myself to "abuse" if I'm wrong or imprecise.
>
<snip>
>
> So, in the case of a sound recording it is true that you have multiple
> levels of possible copyright protection, both at the original creative
> level and at the next level, but there are distinctions that need to be
> made between the sound recording process and the recording of a speech.
> First, the sound recording operation is significantly more creative than
> the simple recording of a speech, and I think this fact is recognized by
> giving the sound recording owner certain protections.
You're right about there being two levels of copyright. The copyright in the original work (the speech - assume it's been reduced to a material form) and the concurrent (mechanical) copyright in the sound recording of the speech.
I don't know whether the same standard of originality applies to mechanical copyrights, however. It's an interesting point and I don't know whether it's been decided in this kind of situation, ie. where originality is pretty low because all you're doing is holding down play and record while someone gives a speech. Mechanical copyrights aren't usually justified on originality grounds usually, but the grounds that the owners of these types of copyright have usually made a substantial investment in equipment. My personal view is that there have simply been a lot of good lobbyists concentrated in certain industries for a very long time.
I don't think the originality of the actual *process* of recording is important - the originality of the material recorded is. But even then the bar for originality seems lower in the case of mechanical copyright. Take photography, for instance. At least in Australia, the copyright owner of photographs is simply the person who took the photograph. There is still formally an inquiry in the analysis of whether copyright subsists in a particular photograph of whether it is original - but practically, every picture ever taken (no matter how trite the subject) is original enough.
I wonder whether this is, in part, because infringement in mechanical copyrights seems much easier to prove. Except in exceptional circumstances, ;-) you can tell whether a photograph is the one you took or not. You can tell (with some expert help) whether a song ha sampled your rendition of "Hard Days Night" or the Beatles'. I wonder whether, with the advent of digital processing, storing and manipulation of these media whether we mechanical copyrights will end up looking much more like standard copyrights in literary and artistic works.
Regards,
Tristan.
Tristan Forrester
<tristan_forrester[_at_]fhp.com.au>
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