[78-L] Fwd: Preservation vs Exploitation

[David Lennick]

Interesting article about reissues. It's 5 years old but I hadn't seen it 
before today.  dl

On 9/9/2010 10:10 AM, Jazz Promo Services wrote:
> _
> http://www.indicare.org/tiki-read_article.php?articleId=98
> _Preservation versus exploitation
> By: Michael Rader, ITAS, Karlsruhe, Germany on: 29/04/05 [15:53 UTC]
>
> *Dilemmas in the reissue of historical recordings
> Abstract:* While the market for the reissue of historical recordings
> seems sufficiently attractive for there to be multiple reissues of the
> same recordings, there is the additional aspect of the preservation of
> the audio heritage. This is largely being undertaken by private actors
> who invest substantial time and money in audio restoration and research.
> A recent court decision acknowledges that such work is protected as
> intellectual property. Even so, different interests in this field are a
> barrier to enforcement of rights so that digital watermarks might prove
> the most acceptable solution.
> *Keywords:* legal analysis, economic analysis – IPR, piracy,
> preservation, public domain, users, watermarks
> *Introduction
> *The reissue of historical recordings has in general been very much a
> niche market catering for collectors rather than the more general
> customer. In Europe and most other regions with the exception of the US,
> recordings older than 50 years enter the public domain. In view of the
> restricted market, it might surprise bystanders to discover that there
> are multiple reissues of recordings considered more readily marketable,
> e.g. in the classical domain the works of early 20th century tenor
> Enrico Caruso, in the jazz area recordings by such household names as
> Louis Armstrong, Benny Goodman, Glenn Miller or Django Reinhardt.
> Competition will probably increase when recordings by Elvis Presley and
> the wealth of recordings from the 50s and 60s which are still heard on
> the radio, gradually enter the public domain in Europe.
> For more casual buyers, competition is via prices, but there is in
> addition the aspect of sound quality which also plays a role in the
> preservation of the heritage of sound recordings. This preservation work
> is being done almost exclusively on private initiative. Sound
> restoration work is protected by intellectual property rights as
> "minimally creative work". This has been acknowledged in a recent court
> decision. What follows obviously also applies to films which have been
> restored for reissue on DVDs.
> *The issue
> *While the average consumer might want to buy historical recordings to
> play as a novelty at parties, because a certain type of music is
> currently fashionable, like swing a couple of years back, or because
> curiosity has been piqued by such films as "The Aviator", there have
> always been collectors of vintage recordings.
> There have always been concerns about the durability of early recordings
> which were made of breakable material in the first place so that it is
> surprising that so many have survived until the present. There are
> sometimes only single known copies of recordings. In addition, there are
> recordings in circulation which were never widely issued or intended for
> issue, such as test pressings, private recordings, recordings made for
> publicity purposes, all of which are of interest to some collectors or
> historians. Preservation is of particular interest for so-called
> vernacular music, meaning music outside the well-documented elite
> cultures. Examples are performances of jazz and blues, tango and other
> ethnic music, which would largely be lost without recordings. There is
> also interest in performances by legendary performers in the classical
> realm, such as the previously mentioned Caruso.
> While there are collectors who jealously guard their treasures and allow
> no-one else to hear them, the domain is characterised largely by
> willingness to share and preserve for posterity. Some actors in this
> field state that they do not own the records, but are simply their
> custodians during lifetime with the duty to hand them down to future
> generations.
> Since the major companies have little interest in the field due to
> limited return on investment, this is an area where small independent
> companies are very active. In the past, there was a very thin line
> separating reissue activities from piracy and one early company actually
> called itself "Jolly Roger" after the pirate flag with the skull and
> crossbones. However, gradually many recordings considered worthy of
> reissue have entered the public domain, at least outside the US and are
> thus legal. Even so, it is strictly speaking illegal to sell certain
> European reissues in the US. There is reluctance to take legal action
> against competitors due to prevailing ethos and also due to the costs of
> taking lawyers. Many companies are run by producers with day jobs
> outside the music business and these prefer to invest any money they
> make out of reissues on new productions rather than in legal action.
> Reissue policies vary a great deal. Some obviously only want to take the
> money and run. They do not care about such things as audio quality or
> presentation and will use virtually any source. Even in the days of
> long-playing records, it was common practice to simply copy individual
> tracks or entire albums from other LPs. Other labels have ambitious
> programs wishing to reissue everything irrespective of sound quality and
> source (original recording, LP or cassette). Still others regard
> themselves as preservationists and take great pride in quality and
> presentation, sometimes going to great lengths to track down rare items
> and doing, or commissioning, impressive research work to unearth
> information about rather obscure artists by today’s standards.
> Audio restoration and production of accompanying material result in
> substantial costs. To some extent, the values in this field have
> changed. Instead of on "noise suppression", there is a premium on
> preserving the sounds originally contained in the grooves. This means
> that there is still demand for "new" restoration work. Although digital
> equipment for audio restoration is readily available, its use requires
> considerable skill. The best audio engineers in these fields have
> reputations among collectors and their name on a product is regarded as
> a hallmark of quality, just as certain labels have good reputations.
> Probably as much for financial reasons as for any other, reissues of
> historical material have generally not been protected against copying in
> any way, so that it is easy to infringe on any intellectual property
> rights which might exist in the field.
> *The "Bear Family" court decision – acknowledgement of IPR protection
> for restoration work
> *Readers of the "Indicare" Newsletter will no doubt remember the "Jib
> Jab" incident in the recent US presidential election (cf. Böhle 2004).
> In this, the current copyright owners of Woody Guthrie’s "This Land is
> Your Land" took action against the owners of the JibJab website for
> unauthorised use of the work in a parody on the US election. One of the
> ironies of the case was that the melody of the Guthrie song was itself
> not an original composition but the reuse of a song of undetermined
> origin which had been copyrighted by A.P. Carter of the Carter Family
> recording artists in the early 1930s. Many references were made in the
> discussion of JibJab to currently available recordings by the Carter
> Family, most frequently to a box set produced by a company called JSP
> located in London.
> Precisely this box set and second box of recordings by the Carter Family
> were the subject of a court ruling by the Hamburg district court
> (Landgericht Hamburg, 3 February 2004, cf. Byworth 2004). This was the
> result of action taken by the German specialist label, Bear Family,
> against the unauthorised use, by the London-based company, of recordings
> originating from a 12 CD box set "In the Shadow of Clinch Mountain",
> which contains the complete works by the Carter Family with audio
> restoration work commissioned and paid for by Bear Family. Such work is
> protected as intellectual property even if the recordings themselves
> have passed into the public domain and can theoretically be reissued by
> anyone. Such intellectual property rights on restoration work are
> indicated by the (p) sign, which can also apply to a compilation.
> The court decision was taken in the absence of the defendant, the owner
> of JSP, who had previously been ordered to refrain from the
> manufacturing of the box sets containing copied recordings. The
> conviction was for improper business practices and the court instructed
> the British company to provide Bear Family with all information relating
> to production and sales of the box sets and to provide compensation for
> damages resulting from production and sales.
> The decision was based on testimony by an expert witness, but the
> decisive factor was the inclusion in both sets of a unique recording
> which had been tracked down by Bear Family.While both companies’
> countries are members of the European Union, the Hamburg court decision
> had to be registered at a British court to take effect, which again
> required the services of a lawyer, another cost which most producers
> would not be willing to take on even temporarily. Even so, the court
> decision, which Bear Family’s lawyer, Ulrich Poser, describes as "path
> breaking for the branch" (cf. Anon 2004) has actually resulted in the
> payment of substantial damages and has encouraged at least two more
> producers to take action against another German company which is
> notorious for its piracy practices.
> A collector, who also writes for a web-based publication on film music
> (Schlegel 2004), describes how this German company pirated copies of
> film soundtracks. Among other things, he attempted to invoke assistance
> by the German collecting society, GEMA, which was initially very
> reluctant to take any action. When it finally did, it emerged that a
> license for intellectual property on the soundtracks had been registered
> in the Czech Republic, preventing action from any lawful owners.
> As readers who have come this far will have guessed, piracy of audio
> restoration work is far from exceptional. Bear Family has thus taken the
> consequence of adding a water mark to its own productions. According to
> Bear Family director Hermann Knuelle, such watermarks are tamper
> resistant, while allowing "legal" copying, for example for use on
> devices such as MP3 players belonging to the owner of a copy of the
> recording. The watermark remains perceptible even after extreme
> compression, independent of recording technology for copying
> (microphones, radio, connecting CDs to sound cards) and presumably
> following further audio processing by any third party. It can be
> "individualised" to the extent that a copy is traceable to a particular
> copy of a series. Of course it is inaudible (cf. Fraunhofer IPSI).
> *Actor interests
> *Only a small fraction of all sound recordings ever made has actually
> been reissued. A private initiative, "Project Gramophone", which aims at
> making every recording ever made publicly available via the internet,
> has encountered unexpected problems due to a "cobweb of laws" in the
> United States (Noring 2003). The ultimate impact of this situation is
> that most recordings from before 1972, when a Federal law on
> intellectual property took effect, are effectively locked away until
> February 15, 2067. As a result, the project is considering relocation to
> Canada where other laws prevail, but the entire initiative is still
> private. Public organisations, such as museums, usually lack the
> resources to engage in large-scale audio (or video) restoration and
> preservation work.
> As a result, the bulk of restoration work is being done by small private
> companies not usually run to earn a livelihood but to invest in further
> "preservation work". Satisfaction for producers is largely in
> non-material terms, such as acknowledgement by their fellows and
> interactions with like-minded people. Understandably, they are not
> amused when others simply re-use work they have paid for without as much
> as acknowledgement: in the case of the Carter Family, JSP actually
> advertised their set as far cheaper than the more expensive Bear Family
> box (personal communication by Hermann Knuelle, 8 March 2005).
> To be fair, the British company originally earned a reputation in its
> field for high quality reissues using restoration work by well-known
> engineers that it had paid for and was certainly pirated itself. It is
> only recently, that it has started ripping off others’ work for issue in
> "value for money" boxes. Its current business model (cf. Levine 2003)
> probably would not function if the label had to pay for all of its
> restoration work. Worse still from the viewpoint of preservation, there
> are other labels which do not invest any money at all on original work
> but regularly get good reviews in periodicals and on the internet as
> "value for money".
> Collecting societies and enforcement agencies for intellectual property
> rights are not interested sufficiently to take action of their own
> accord, presumably because there is no pressure from the major record
> companies. Newspapers and periodicals also see no need to concern
> themselves with the topic even if they are not dependent on advertising
> revenue from the pirates, which sometimes is the case.
> Most dealers are unaware of any problems in this field and quite readily
> sell pirated material along with legitimate productions. Amazon, for
> example, shifts responsibility for infringements on intellectual
> property rights to its suppliers.
> Consumers are obviously faced with a dilemma – the wish to buy
> first-class music at a low price versus the danger that supplies will
> dry up when producers refrain from new work for fear of being pirated or
> because they no longer recoup their investments. Again, the first
> problem is that most consumers are blissfully unaware of anything evil
> afoot in this field. When confronted with the facts, reactions differ
> from "stealing is stealing and no two ways about it", to "I’m on a
> restricted budget and would dearly like to buy xx if I could afford it.
> If I can get it at a better price on yy, why not and to hell with morals".
> Producers doing restoration work would probably tolerate re-use of the
> work they own if they were to benefit from it, e.g.
>
> Through receiving credits for the work if only individual tracks are
> used. This might attract new customers to their productions;
> License money for re-use in other products. Again, an important
> condition would be acknowledgement of credit for original work.
> In this way it would be possible for the specialist companies to
> continue their preservation work. In view of existing experience, this
> would not be possible without protective measures such as digital
> watermarks.
> *Bottom Line
> *In view of the conflicts between actor interests, a non-intrusive
> watermark might be the ideal solution as it does not infringe on
> consumer rights and enables the detection of "pirated" work produced at
> a grander scale, be it in the shape of physical products such as CDs or
> DVDs, be it in the shape of files distributed over networks. Decisions
> on prosecution would then be at the discretion of the victim if he
> wishes to prosecute genuine file sharing among friends or only practices
> aimed at commercial gain.
> *Acknowledgements
> *The author wishes to thank Mr. Hermann Knülle, a director of Bear
> Family records, and Mr. Ulrich Poser, lawyer for Bear Family in the
> Hamburg court case, for additional information on the court decision,
> including the text of the decision itself.
> *Sources
> *
> Anon (2004): Bear Family gewinnt Rechtsstreit gegen Briten, Musikwoche
> 13/2004, available from _http://www.rechtsanwalt-poser.de/doc/voe-bear.pdf_
> Böhle, K. (2004): Knock out by copyright expiration, Editorial of
> INDICARE Monitor Vol. 1, No 3, 27 August 2004,
> _http://www.indicare.org/tiki-read_article.php?articleId=38_
> Byworth, T. (2003): Bear Family Records copyright court action.
> _http://www.vingar.se/country/CMS-2004-03.htm_
> Fraunhofer IPSI (Integrierte Publikations- und Informationssysteme):
> Media Security in IT _http://www.ipsi.fraunhofer.de/merit/media_security/_
> Levine, J. (2003): The bucks stop here.
> _http://www.theshiftedlibrarian.com/2003/04/13.html_
> Noring, J. (2003): The Project Gramophone proposal
> _http://www.teleread.org/blog/2003_10_26_archive.html_
> Schlegel, S (2004).: Die Membran-Odyssee;
> _http://www.cinemusic.de/rezension.htm?rid=5053_
> *About the author:* Michael Rader studied sociology, psychology,
> political science and economics. He joined ITAS' forerunner AFAS in 1979
> and has since worked mainly on the impacts of information and
> communication technologies. He has led several ITAS projects and is
> currently involved as workpackage leader in FISTERA (Foresight on
> Information Society Technologies in the European Research Area). In
> INDICARE, he mainly plays the role of an unobtrusive copy-editor. He has
> accumulated his own record collection over almost 40 years. This
> includes items from the beginning of the 20th century up to the present.
> Information on more recent DRM developments stems mainly from
> observation of CDs bought by his daughter.
> *Status:* first posted 29/04/05; licensed under Creative Commons
> *URL:* _http://www.indicare.org/tiki-read_article.php?articleId=98
> _
> ____________________________________________________________