Copyright & Upsetting Applecarts

[semloh]

I would appreciate some advice on copyright issues, please.

I wanted to upload recordings from the old Louisville LP sets, but eschiss1 kindly alerted me to the fact that at least some of them had been reissued on CD. Wanting to do the right thing I have been searching for evidence that the other items in the set have not been reissued. I found a number recently reissued by 'Soundmark'. The Alan Hovhaness page: http://www.hovhaness.com/News-Hovhaness-Soundmark.html
says of the Soundmark releases that:
"They (some Hovhaness works) are among well over one hundred releases which Soundmark's founder, Matthew Walters, has painstakingly created, often from original LPs, believing them to be "recordings that deserve continued 'quality' circulation".

But, a web search reveals that:
- the Soundmark trademark is no longer registered (http://www.trademarkia.com/soundmark-records-75117831.html)
- the items in question are available only as MP3 downloads,
- Soundmark has no dedicated webpage, business address, etc.
- and I can find no trace of Matthew Walters elsewhere on the web, although he is credited with being the person responsible for engineering the 'First Edition' Louisville reissues.

Does anyone on the forum know anything about Soundmark? The MP3s still seem to be being released, but it makes me wonder how issues relating to the copyright on the original recordings have been addressed.

It raises the general question ... what is the best way to be sure that old recordings can be uploaded here? I don't want to upset the applecart!

[Dundonnell]

I am not sure that this really helps much but my understanding is that the Master Tapes of the original Louisville Orchestra's recordings, which amounted initially to 125 LPs and included 116 works commissioned by and premiered by the orchestra, passed into the hands of First Edition Music.  First Edition started to release some of the music on cd in the 1990s, then stopped for whatever reason.

Then, a few years back, the First Edition Music label reappeared under the ownership of a new company called the Santa Fe Music Group, based in Santa Fe, New Mexico. The Managing Director of this company was Matt Walters. His intention was to re-master the First Edition catalogue for cd and a number of cds were duly released containing a small part of the Louisville treasure trove.

However...apparently very suddenly the Santa Fe Music Group went offline and, presumably, out of business.

I emphasise that this is my understanding. I may be in error in some of this!

The pertinent question therefore is who now possesses the rights to the Louisville Orchestra's catalogue of recordings. Someone must!

I know that doesn't help in the slightest in terms of whether the music can or cannot properly be made available here. All I can say-and I am no lawyer!!-is that members have uploaded music from LPs and that music theoretically/hypothetically could at some point in the future be put onto commercially available cd.
The key issue, perhaps, is that it is not at present so available.

[eschiss1]

In the case of the Mennin sym 5/6/cello concerto (Louisville) disc, Amazon.com has it as currently available- not (just) as available from other collectors who are selling their used collections, but "buy new: $13.38" in the US at present. So I'm guessing that the answer is "yes" (for that one - e.g. ...).

[Dundonnell]

Yes...probably the only way you can be sure would be to go to Amazon.com, bring up one of the available cds(eg the Mennin) and then click on "Louisville Orchestra". That will bring up all 133 available items

[eschiss1]

well... that wasn't... exactly how I searched for it.
(and Amazon alas is not so comprehensive- what is? Ultimately it falls on one's judgment I think and one needs to spend a good while developing -that-... I'd make a joke about mine but my sense of humor is not spot on.)

[semloh]

Thank you for these responses.

eschiss1 - yes, indeed, and most of the works have popped up on 'First Edition' or elsewhere (inc. some very obscure CD labels!).
Dundonnell - that sounds like a logical chain of events to me.
So, I will not upload anything from the Louisville LPs, just to be sure.

As to copyright, my understanding is that:
1)   even when record companies have ceased to exist, their assets include their recording copyrights - which then pass to others and may still be legally binding; in many cases, however, it is no longer possible to determine who owns the copyright on old recordings – either by virtue of the passage of time, the number of interests involved, and the demise of companies, or because of dramatic political and economic restructuring (e.g. in ex-Soviet states);
2)   in respect of many older recordings, the law has changed over the years and the original legislation providing copyright in that particular case is void, or even makes no sense in a digital age;
3)   the protection afforded by copyright law ceases after specific time periods, depending on jurisdiction;
4)   the relevant copyright law is different in different countries – and this is in respect of both the place of origin of the recording and the 'place' in which the breach is deemed to occur – which may be the location of a web-based download site;  the nationality of the current copyright holder may also come into play, both as regards their rights and their ability to enforce them outside the UK; as a result, we can expect that sites offering illegal downloads will increasingly adopt 'proxy' sites which are based in countries where they can not be readily prosecuted;
5)   EU legislation is often not consistent with the law of particular member states; most of it concerns large scale piracy involving vast sums of money, or sensitive technical information, databases and industrial espionage;
6)   it is significant that copyright law does not prevent the sale of secondhand records and CDs – and this raises questions as to exactly what it is that is copyright, and what exactly the owner of a record or CD actually owns; if I can sell one of my Naxos CDs, can I sell the MP3s I have purchased from Naxos?
7)   in practice, making recordings available without pecuniary advantage – as we do in this forum  - only interests a copyright holder (and the law) if it undermines their potential or actual income; the law would regard legal action in respect of purely technical breaches as frivolous;
   in most cases a simple request by the copyright holder to remove an offending item from a website will suffice, or it may be removed in any case by the file host; legal action is only viable if significant amounts of money are at stake (as per the original Napster cases); in making a judgement as to what is 'significant' here, a court considers the number of downloads involved and predictions as to the probable loss of sales as a consequence; obvioulsly, legal action of this nature can involve huge expense;
9)   in Anglo-European contexts at least, radio and TV programmes are technically the property of the broadcaster, without affecting the rights of the copyright holder in the case of the broadcast of commercial recordings; strictly, at least in the UK, recordings may only be made from TV and radio for personal use – after all, if the BBC, for example, planned to bring out an audioCD of a certain programme/series, they will not sell if every potential customer has already downloaded it; but, given the various points above and in the absence of pecuniary advantage, it is generally safe to make home recordings available to others; personally, I think this is odd because - whether downloadable or just 'listenable'- putting a programme on the web constitutes a public broadcast, which I think copyright explicitly disallows!
10)   penalties may apply in a few jurisdictions to those who download copyrighted material, as well as to those who make it available;
11)   MOST IMPORTANTLY, as far as I am aware, there are no examples of legal action being taken against people who use the web to share commercially unavailable recordings and radio programmes (music or otherwise) free of charge – even though in some cases the website owner is making money from doing this by having on-site advertising, etc..;
12)   in addition to copyright law, many people believe there is a moral consideration – some take the view that music should be available to all, regardless of copyright issues, and at the other extreme some think it is immoral to breach copyright under any circumstances.

The upshot of all this is that, in my view, this site behaves with admirable caution. One should take all reasonable steps to ensure that one doesn't upload material which is currently commercially available, but it's not the end of the world if one makes a genuine mistake; and, radio programmes are generally safe to upload, unless they are of commercially available recordings.

These are my observations after a decade of discussing the matter with people on the web, but I am not a lawyer, of course, I can't guarantee I am 100% accurate and others may know better. 

[TerraEpon]

Then of course there's also that tricky 50 year PD law in most of the EU....

[Mark Thomas]

Point 11 of Semloh's extremely helpful review is the one to bear in mind in the case of UC. If a recording, no matter how old, is currently commercially available then we won't make it available here. If it isn't then I'm happy that it's available, although there are a couple of cases where uploads of radio broadcasts have been withdrawn because the performance subsequently came out on CD.

I'm also very grateful to Semloh for confirming that our policy is on the right lines.

[albion]

One should take all reasonable steps to ensure that one doesn't upload material which is currently commercially available, but it's not the end of the world if one makes a genuine mistake; and, radio programmes are generally safe to upload, unless they are of commercially available recordings.

A sensible and pretty clear modus operandi. Right from the beginning these were the criteria applied in the British broadcasts section (spelled out at the beginning of that thread) - legitimate commercial releases of performances currently found within that archive would be more than welcome: nobody would wish to deprive a genuine issuing-company of revenue that might lead to further recordings being made, but when a label goes to the wall and valuable music is thereby inaccessible I can't see anything ethically wrong in making 'interim' copies available - after all it's not as if there is any profit-making involved. A bit of leg-work is sometimes needed to check whether or not recordings are commercially available - but it is worth the extra effort in order to ensure that no opprobrium falls on the excellent work being done by members of this forum.

[TerraEpon]

Speaking of which, I'm almost positive the McEwen Scottish Rhapsody in the archive is from the Rachel Barton disc.

[albion]

Speaking of which, I'm almost positive the McEwen Scottish Rhapsody in the archive is from the Rachel Barton disc.

Thanks. Duly checked, confirmed and removed! Please notify the forum as soon as you have any suspicion that the 'code of conduct' has been breached!

[Amphissa]

I am happy to adhere to the policy of the board in regard to what may be shared. This is for informational purposes only.

There are some further aspects of U.S. copyright law that publishers do not like to acknowledge, but are solidly substantiated in court law. This derives from the copyright law enacted by Congress that established the rightful use of copyrighted materials, even those commercially available, within the context of "fair use."

The intent and court interpretation of fair use enables individuals and groups to share copyrighted materials under certain circumstances. The main requirements are that the purpose of the sharing be:
1. for educational or research purposes (or even entertainment, enlightenment, informational)
2. non-commercial (meaning no compensation of any kind)
3. one-to-one or among a small, defined group of colleagues

It is under the provisio of fair use that such practices as "interlibrary lending" is permitted between libraries, and the photocopy and distribution of publications may be used in classroom teaching, reading groups, journal clubs, etc. It is also a mechanism that permits researchers to send copies of publications to each other legally.

The concept of fair use was confirmed, as well, by the courts in cases that pertained to use of recording devices to capture video from television and tape recordings of LPs and CDs for personal use. The media industry had sought to ban videotape machines and tape recorders.

Over the years, media industry (including publishers) have renewed their effort to erase the concept of fair use, lobbying politicians relentlessly, lodging an unending spate of legal cases, extracting extortion from individuals and "helping" universities re-define fair use practices in increasingly constrained interpretations.

They have met with success on several fronts. The most obvious and important for us has to do with the length of period that copyright remains active. A law originally intended to give the creator of a work an opportunity to reap a profit before the work became public property has been perverted into a law that enables corporations that have taken copyright ownership away from the creator of the work to profit for periods of time that become effectively unending. The works never enter the public domain.

Most works more than 50 (in some cases 35) years old, have entered the public domain. That includes a lot of LPs. Even if a company is currently producing copies of those original recordings for sale, the works themselves are in the public domain. Anyone can make copies and sell them for profit or share them with others. Just because some old recordings have been re-issued for sale by a company, that does not mean that they cannot be legally shared with others.

The important questions to ask are:
1. Has the work entered the public domain? If yes, the original can be copied and shared.
2. Is the sharing for non-commercial educational or research purposes among a small number of colleagues? If yes, then it falls within fair use guidelines.

The media industry has succeeded, as well, in instilling fear as a tool for further constraining legal rights in the use of materials. But you never have encountered a legal action taken against an individual for ripping an old LP into digital form and passing it around to others. Even years ago, back when we made cassette tapes of our LPs and shared them with each other, you never heard of any court cases. It would be just about impossible for a company to win a case. The best they've been able to do is limit commercial re-sale of older copyrighted materials by large companies like Naxos.

However, as I say, I gladly follow the guidelines of the moderators on this board. The basic rule established here is the safest course, protecting the moderators, the board, and all of us from any potential problems. And there are many recordings that we have and can share within the board guidelines.

I, for one, am having a great time hearing music I would never have heard. So, no complaints from me.

[albion]

The intent and court interpretation of fair use enables individuals and groups to share copyrighted materials under certain circumstances. The main requirements are that the purpose of the sharing be:
1. for educational or research purposes (or even entertainment, enlightenment, informational)
2. non-commercial (meaning no compensation of any kind)
3. one-to-one or among a small, defined group of colleagues

Is the sharing for non-commercial educational or research purposes among a small number of colleagues? If yes, then it falls within fair use guidelines.

I think that succinctly describes the altruistic activity of forum members.

[BFerrell]

Rick Crampton says:
December 20, 2011 at 3:50 pm
Andrew Kazdin was the producer of the Louisville Orchestra First Edition Records from 1973 until the end. When Matt Walters ( First Edition Music ) virtually stole the master tapes from the Orchestra, he sought Andy's support; and not getting it, Walters deliberately mis-attributed Andy's work to Howard Scott who was the producer of the recording sessions prior to 1973.

Walters got over $ 150,000 in NEA and Copland grant money which was funneled through the Orchestra ( by inept management at the time ) for the purpose of " digitizing and restoring " the First Edition Records master tapes; but he used the money to re-release the Louisville Orchestra First Edition Records recordings on his own label, " First Edition Music ". He refuses to return the master tapes to the Orchestra on the grounds that his original contract gave him possession in perpetuity.

It's so very sad that the unique history of the Louisville Orchestra's own record label, funded by a Rockefeller grant in the ' 50s, was " given away " to an opportunist who saw a chance to set himself up as a record company, financed by NEA and Copland grant money which was never intended for such purpose. It's also sad that in order to serve his own ego and purpose Matt Walters has promoted himself to the title of executive producer and has mis-attributed Andy's work to others out of spite.

[semloh]

Rick Crampton says:
December 20, 2011 at 3:50 pm
Andrew Kazdin was the producer of the Louisville Orchestra First Edition Records from 1973 until the end. When Matt Walters ( First Edition Music ) virtually stole the master tapes from the Orchestra, he sought Andy's support; and not getting it, Walters deliberately mis-attributed Andy's work to Howard Scott who was the producer of the recording sessions prior to 1973.

Walters got over $ 150,000 in NEA and Copland grant money which was funneled through the Orchestra ( by inept management at the time ) for the purpose of " digitizing and restoring " the First Edition Records master tapes; but he used the money to re-release the Louisville Orchestra First Edition Records recordings on his own label, " First Edition Music ". He refuses to return the master tapes to the Orchestra on the grounds that his original contract gave him possession in perpetuity.

It's so very sad that the unique history of the Louisville Orchestra's own record label, funded by a Rockefeller grant in the ' 50s, was " given away " to an opportunist who saw a chance to set himself up as a record company, financed by NEA and Copland grant money which was never intended for such purpose. It's also sad that in order to serve his own ego and purpose Matt Walters has promoted himself to the title of executive producer and has mis-attributed Andy's work to others out of spite.

Thanks for that perspective on the Louisville situation. Wow, talk about tangled webs! 

In light of this, I wonder if I can risk uploading the (as yet) un-reissued Louisville items from my old boxed set - they could always be withdrawn if they do eventually appear on CD.