Wednesday, March 2, 2011

Good news/bad news -- free classical downloads!

Brompton's Auction House caused quite a stir in the classical community. This firm specializes in historic musical instruments, and they provide an extensive amount of information on their website to help buyers learn more about -- and understand the value of -- the instruments that come up for auction.

Recently, Brompton's introduced a line of historic recordings that visitors could download for free. Again, the goal is to help prospective buyers better understand the instruments Brompton's offers by hearing them played by some of the greatest performers of all time.

That's the good news.

The bad news is that Brompton's is a UK firm, and folks in the US can't download these tracks because of copyright issues.

Now let's be clear: the works in question are all in public domain, the composers (Mozart, Beethoven, Brahms, etc.) long dead. These recordings were made back in the 1930's and 1940's, and all of the artists involved are also dead. Some of these recordings are out of print, and aren't readily available.

So what's going on?

A difference in copyright law. In the UK, recorded works are only protected for 50 years. After that time, they fall into public domain. So in this year of 2011, recordings released in the UK before 1960 can be reissued and/or remastered by anyone.

US copyright works a little differently. Basically, anything issued before 1923 is in public domain. Anything after (depending in part on renewal) could be protected until 2047, and works after 1978 could be protected through 2067!

Think on that for a moment. A 1940 recording of a Beethoven violin concerto remains under copyright in the US for over a century. And if the record label decides not to reissue it because the market's too small? Too bad. That recording ceases to exist -- and don't you dare try to get it someplace else!

Brompton's offerings are going to appeal to a very small audience -- even worldwide. Copyright law was originally designed to allow creators to reap the initial rewards of their works in the marketplace. And public domain was designed to eventually allow others to take those works and add their own improvements or innovations.

The UK's law makes much more sense. Consider this: if our copyright laws had been in effect all along, then works published in 1890 would just be coming into public domain this year.


  1. Copyright law as applied to sound recordings is very complicated. Any sound recording created after February 15, 1972, is protected by federal copyright law. Recordings created before 1972 were not protected by federal law, but they are protected by the common law of copyright (or unfair competition) under state law. Congress has provided that exclusively federal protection will be afforded to copyrights after February 15, 2067, meaning that to the extent state law applied to recordings prior to that date, the protection would expire thereafter. State common law as applied to copyrights is generally perpetual in duration.

    Copyrights created under the law of foreign countries generally are of much shorter duration than copyrights created under United States law. The basic premise of copyright law is that the artist should be able to control and receive royalties from his recordings for a reasonable time. Thereafter, the work should enter the public domain for anyone to use without payment of royalties or restriction on performance. In this country, the recording industry has far more political clout than in most foreign countries, meaning that the unrestricted public use of performances created for private gain is correspondingly more limited than elsewhere.

    In a fairly recent case that was ultimately decided by the highest court of New York, the record label Naxos restored and released for commercial sale certain recordings that had been made originally in the UK in the 1930s. These recordings were all historically significant. They are Yehudi Menuhin's performance of Edward Elgar's Violin Concerto in B minor, Opus 61, recorded on July 5 and 14, 1932; Menuhin's performance of Max Bruch's Violin Concerto No. 1 in G minor, Opus 26, recorded on November 25, 1931; Pablo Casals' performances of the J.S. Bach cello suites recorded between November 1936 and June 1939; and Edwin Fischer's performance of J.S. Bach's The Well Tempered Clavier, Book I, recorded between April 1933 and August 1934, and Fischer's performance of Bach's The Well Tempered Clavier, Book II, recorded between February 1935 and June 1936. The British copyright to these recordings, released originally by a predecessor of the label EMI, had expired after 50 years had elapsed since they were recorded (in other words, in the 1980s).

    Naxos took the position that because the copyright to these recordings had expired under the law of the place where they were created, Britain, they had entered the public domain and were available to be used by anyone for any purpose. A federal court agreed that no federal copyright protection was available to the original copyright owner, since the recordings were created before 1972, but New York's highest court found that state law prohibited Naxos from using the recordings without obtaining the consent of the copyright owner.

    There is no reason why the law as applied to a sound recording fixed in a tangible medium, such as a CD, should be any different when applied to a download, such as those offered by Brompton's Auction House. The market for these historical recordings is tiny, and their commercial value is negligible, although their historical value is substantial. Some means or method should be devised to make these kinds of recordings more readily available commercially, but I see no constituency in our Congress for making that happen.

  2. Although I deal with sound recording copyright issues in my other job (primarily involved with licensing recordings for compilations), I didn't want to get too far into the details of the law. I thought it would bog down my main point, which was to highlight one of the unintended consequences of the unrealistic and disproportionate protection currently in place in American copyright law.

    That said, I'm grateful for your clarification. While it's not likely that we'll have a rising up of angry music lovers demanding Congress change the laws so we can legally get that Menuhin performance of Bruch, I think it is helpful to bring these laws into greater public awareness. I'm looking forward to a good discussion on this topic!

  3. classic ‘public good’ – something society needs and people want but market forces are now incapable of generating in sufficient quality or quantity android and .” It should be viewed through the same lens as, say, education, health care and transportation infrastructure, as essential to democracy itself.