Copyright - FAQ
This page is a work in progress, it may contain errors. It is not intended as nor should it be taken as legal advice.
1. Do you get a new copyright for digital remastering?
We asked a law professor, who didn’t know of any case law on this point, but advised it would hinge on interpretation of the relevant section of the UK statute which is s5A(2) of the Copyright Designs and Patents Act 1988: “Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording”. Seems this is precisely designed to prevent rights holders claiming a new copyright for reissuing an old recording though, as stated, I do not know whether this has ever been backed up by case law.
In practice the situation seems confused. For example, the CD copy of Glenn Gould’s rendition of the Goldberg variations states: ‘Consists of previously released material …. This recording was mastered using 20bit technology for “high definition sound” …. ‘ and goes on (p) 1956/1957 Sony Music (c) 1992 ….. (NB: (p) is equivalent of (c) for phonogram/performer copyright, and the (c) refers to the artwork.) So the (c) date of 1992 indicates the CD was issued in 1992. If a new copyright had been awarded for remastering the recordings for CD, the right holders would have put (p) 1992 as well. That they didn’t strongly indicates that this recording still has the same date of performer copyright as the original, namely 1956/1957. This suggests that, in general, you do not get a new performer copyright for remastering to a new format. However, in another instance, a Compilation of Heifetz recordings recorded originally in the 1930s, then later reissued by a small label. The (P) date of 2004 implies the assertion of a new phonographic copyright.
Bridgeman vs. Corel, a US case in which the UK-based Bridgeman Art Library sued - unsuccessfully - Corel for using digital images of old masters originally produced by Bridgeman in their clipart, suggests new copyrights are not awarded when remastering . Although decided in the US and concerned with images rather than music so not binding on UK courts, this case is persuasive for two reasons. First, the court applied UK law in determining the decision (see excerpt below). Second, there is a close analogy between pictures and music, especially when interpreting the crucial statutory phrase ‘to the extent to which it is a copy’.
2. How about for a “raw” digitised file?
Best to assume the same approach as above applies i.e. no new copyright (this is just the “copy of the copy” scenario, but for a different media).
3. How about if you process a raw digitised file with a compression codec?
Almost certainly not. Compression is just algorithmic reprocessing involving no originality so it would not generate a new copyright. If I am using mod_deflate on my news website and thereby auto-compress your article for transmission to a web browser this does not give me an extra copyright.
4. Do you get a new copyright for digital versions of old recordings extracted from the original record? (e.g. Naxos’ historical series)
Ditto previous responses. This would not even count as remastering and would be a direct copy.
5. Public Domain image vendors in the US often claim copyright on Collective Works, compilations of Public Domain works that they claim constitute original works. Are these American claims valid in the UK? Can UK publishers make this kind of claim?”
Almost all regimes grant compilation copyrights, which don’t protect the underlying (compiled) works, but rather the arrangement in the compilation. So you may extract the public domain parts of the work and republish without fear of infringing. However, if you simply reproduce the compilation then you infringe the compilation copyright.
6. Is a new arrangement of a traditional song classed as a a derivative work? How different does a work have to be to be an original arrangement?
How long is a bit of string? This is a question ignored by statute and only addressed in case-law. Generally the level of originality is very low, although this varies across Europe (droit-moral countries usually have higher standard of originality for all copyright forms). Cornish and Llewelyn (5th ed) state 10-12 (p.394): ‘”Secondary” activities which have been held to attract copyright include arranging music (by adding accompaniment, new harmonies, new rhythms and the like), and transcribing it for different musical forces. There has been little consideration of what minimum effort will suffice for musical copyright. Certainly, “secondary” activity such as selecting and arranging older tunes or scores, orchestrating or making a piano reduction may quality for its own copyright. But equally , there is very little content in what is sometimes said to be “arrangement”, and this may mean the requirement for originality is not met.’
7. If a work is public domain in the US/Germany/Wherever, is it PD here? How about if it’s PD here but I can only get a US/German/Wherever version?
US: No. They have different (longer) terms for authorial copyright in works made for hire and for performer copyright, although the relevant codes do not given a definitive answer.
EU: copyright terms are the same across Europe following harmonization. See Council Directive 93/98/EEC (harmonizing the term of protection of copyright and certain related rights), which states that Author’s rights are life+70 and performer rights are 50 years.
8. Some American projects declare new work to be in the public domain, before its copyright would normally expire. Does this mean the work can be treated as public domain here?
Yes usually. If the person making the declaration is in a position to declare a work public domain in the US (i.e. they are the author and control the copyright) then they are in a position to do this everywhere else. However if they have assigned their copyright outside the US to someone else then, obviously, this is not the case.
9. If I waive my copyright (dedicate a work to the public domain), how does this affect my moral rights? Also, are moral rights based on copyright, or are they separate? If they are separate, could there be works free of copyright but that the author can assert moral rights over?
Unsure here. More research is needed. Your public domain dedication should involve a statement to waive moral rights (though whether this would be valid is an interesting question — one would certainly imagine it would carry a lot of weight with a judge)
10. US government work is public domain in the US. Is it public domain in the UK or could the US Govt. assert some rights here?
We believe it is PD everywhere.
11. Do moral rights on the score affect the recording once the recording is PD?
Where moral rights are perpetual — e.g. in France — can assume this was the case. Unlikely to affect this project as we are simply making available works which have already been available (so integrity not a great issue) and we will provide attribution where we could.
12. Performing, broadcast, mechanical reproduction, recording rights once the recording is PD?
We need a definitive list of rights and definitive answers on how PD affects them. e.g. BBC royalties are different from broadcast royalties IIRC. We need advice on this point.
13. How do moral rights (and the copyright) on the score affect remixing / deriving from a PD recording while the score is still in copyright?
If the score is in copyright we will not make available the recordings since it is not PD in the full sense (the recording copyright may be PD but the authorial copyright layer is not). Furthermore the question of derivative works is a step beyond PD Works which simply seeks to make PD works available.