[fc-uk-discuss] PD Burn: Asking A Lawyer

[Rufus Pollock]

Rob Myers wrote:
> We need to ask a lawyer about the public domain in the UK. (Or "out
> of copyright work in England & Wales" :-) ).

I have been asking at the Cambridge law faculty and also digging myself.
I post the results below. Warning: I am not a lawyer so these are just 
opinions and not legal advice.

Regards,

Rufus

--------

> I have put together a rough list of questions here:
> 
> http://www.freeculture.org.uk/wiki/PublicDomainQuestions

I am posting them back in here for commenting.

> * Do you get a new copyright for digital remastering?

I asked a law professor this and his answer was that he wasn't sure it
had ever been tested in court (i.e. he didn't know of any case law) but 
it would hinge on the interpretation of the
relevant section of the UK statute (Copyright Designs and Patents Act 
1988) which is:

5A (2): 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.

Source : Consolidated version 1988 Act available as PDF from 
<http://www.patent.gov.uk/copy/legislation/index.htm>

Now it seems to me this is precisely designed to disallow getting 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. Nevertheless I 
think practice tends to back up this interpretation.

Take my CD copy of Glenn Gould's rendition of the Goldberg variations.
This 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)

The (c) is for cover of CD and text. The date of 1992 shows that the CD
was issued then. If another round of performer copyright had been
awarded for remastering to CD they would have put (p) 1992 as well. The
fact that they didn't strongly indicates that for this 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**.

It would be nice to check out more examples particularly CDs released in 
Naxos' historical catalogue (so if anyone has copies of those please let 
me know).

> * How about for a "raw" digitised file?

I think the same approach as above applies a fortiori (this is just copy 
of the copy in a different media).

> * 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 suddenly give me 
an extra copyright seperate from yours.

> * Do you get a new copyright for digital versions of old recordings
> extracted from the original record? (e.g. Naxos with their historical
> series:
> http://www.naxos.com/mainsite/default.asp?label=NaxosHistorical)

Ditto previous responses. This would not even count as remastering and 
would be a direct copy.

> * 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 allow compilation copyrights. These don't give you
copyright over the underlying work but over the arrangement in the
compilation. Thus you may extract the public domain parts of the work 
and republish without infringing (if you simply reproduce the whole 
thing then you infringe the compilation copyright). The relevant section 
of UK law is:

[1] Copyright is a property right which subsists in accordance with this 
Part in the following descriptions of work –
   ...
   (c) the typographical arrangement of published editions.

[7]
   (1) In this Part "published edition", in the context of copyright in 
the typographical arrangement of a published edition, means a published 
edition of the whole or any part of one or more literary, dramatic or 
musical works.
   (2) Copyright does not subsist in the typographical arrangement of a 
published edition if, or to the extent that, it reproduces the 
typographical arrangement of a previous edition.

[CDPA 1988 as amended (op. cit)]

> * If a traditional song is given a new arrangament, this is
> presumably a derivative work. Is it? How different does a work have
> to be to be an original arrangement?

How long is a bit of string? This is a question that is only settled by
case-law. Generally the level of originality is very low though this
varies especially 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 minumum effort will suffice for 
musical copyright. Certainly, "secondar" 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.

> * If a work is PD 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 terms for authorial copyright in works made
for hire and (i think) for performer copyright. I have been digging
through CTEA and US code but haven't got a firm answer yet:
   * CTEA:
<http://thomas.loc.gov/cgi-bin/query/F?c105:3:./temp/~c1053fUy75:e625:>
   * US code title 17: http://www.law.cornell.edu/uscode/html/uscode17/

EU: everything is the same because of harmonization:
   * Council Directive  93/98/EEC harmonizing the term of protection of
copyright and certain related rights
<http://europa.eu.int/comm/internal_market/copyright/documents/documents_en.htm>
     * Article 1: Author's rights are life+70
     * Article 3.1 + 3.2: performer rights are 50 years (minorly amended
by Art 11 of the EUCD)

> * 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.

> * If I waive my copyright (dedicate a work to the public domain), how
> does this affect my moral rights? Are moral rights based on
> copyright, or are they separate? If they are separate it would mean
> that there could be works that have no copyright but that the author
> can assert moral rights over.

Not too sure here. 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)

> * Creative Commons provide an online form to help dedicate work to
> the Public Domain. Is such work considered Public Domain in the UK?
> Is it valid for UK citizens to use this form? How does this form
> affect moral rights?

What does the CC statement say? I am not sure this is that relevent for
the older works which are the main focus of PD Burn  -- any 'CC' PD work
is likely to be already 'burnt' (i.e. digital)

> * 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?

I believe it is PD everywhere.

> * Do moral rights on the score affect the recording once the
> recording is PD?

Where moral rights are perpetual -- e.g. in France -- one would assume
this was the case. I don't think this issue would affect PD Burn
greatly as we simply making available works which have already been
available (so integrity not a great issue) and I assume we would provide
attribution where we could.

> * Performing, broadcast, mechanical reproduction, recording rights
> once the recording is PD? Get definitive list of rights & definitive
> answers on how PD affects them. e.g. BBC royalties are different from
> broadcast royalties IIRC.

I am not sure I understand this question entirely. Performer copyright
is a neighbouring right and its disappearance has no affect on the
underlying copyright.

> * 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 be putting up the recordings
since the recording is not PD in the full sense (the performer copyright
layer is now PD but the authorial copyright layer is not). Furthermore
the question of derivative works is a step beyond PD Burn which simply
seeks to make PD works available.