Introduction
This article was inspired by Natali Helberger’s article on two court cases in different European countries denying purchasers of recordings (CDs or DVDs) the right to private copy (Helberger 2004). While certain popular magazines have been arguing that consumers have such a right and urge purchasers to return copy-protected recordings to the stores, the industry is arguing that it is not actually selling copies of recordings for consumers to do what they want with them, but only the right to listen to or view the recordings under terms usually determined by the industrial partner in a contract concluded through a purchase. A question which readily comes to mind is whether this position really represents a change. For this purpose, it is instructive to read the information provided to customers on record labels (See the gallery of record labels from 1920 until the present). This information does obviously not completely tell us about the real legal situations – laws, the frequency of copyright-related law suits etc. – but it does provide leads which could be explored at greater length by legal specialists. The critical variables seem to be available technology for copying and the overall state (health) of the music industry at any time.

Early days – fights over technological patents
The very earliest recording physically inspected for this purpose was a one-sided recording by the Italian tenor Enrico Caruso, published in the early days of the twentieth century. This has no information regarding consumer rights at all. While there were machines for home recording available, these were costly and the results of dubbing a professionally recorded performance on such a machine were likely to be highly unsatisfactory since they were designed mainly for recording speech (Dictaphones) and the costs were prohibitive.

Most information on things not related to the performance contained on early records was on the manufacturer and any patents on the technology applied to make the recordings or to produce the records themselves. This to some extent reflects on the situation in the courts, where rival manufacturers sued each other over such things as material, types of recording (e.g. double-sided recordings, vertical vs. lateral grooves, cylinders vs. flat discs) etc..

The First Real Challenge – Wireless
A major challenge to the recording industry as a whole first came from wireless broadcasting in the 1920s. The initial reaction of the industry was to draw up contracts with their major artists forbidding these to work in the rival medium. Even so, as the fidelity of broadcasting improved, record sales declined, forcing the industry to improve its own audio standards. This resulted in the introduction of electronic recording and playback. While this revived the fortunes of the record companies for a while, the economic depression following the 1929 stock market crash put sound recordings in the luxury category so that sales again plummeted, causing a major crisis in the industry.

In this situation, radio gained popularity as a means of entertainment – from the nineteen thirties until the mid-fifties, radio was perhaps the major domestic source of entertainment until it was replaced by television. The music industry reacted by offering resistance to such things as sound quality improvement, by delaying the introduction of FM radio and imposing restrictions on its outreach. Recordings from the l930s (and possibly the late 1920s) bear the caption “Not licensed for broadcast”. Broadcasting licenses were the subject of a separate agreement between the broadcasters and performing rights organizations, such as ASCAP (American Society of Composers, Authors and Publishers) or BMI, although it has also been pointed out that licenses were sometimes given free of charge once it was realised that broadcasting was also advertising and boosted sales of recordings.

While home recording technology was available, it was not widespread and probably chiefly used to make so-called airshots – off-the-air recordings of live performances. Of greater concern to the industry during this period would seem to have been the re-sale of records (the second-hand market). Recordings from the later 1930s and thereafter bear the statement “Manufacturer (or some abbreviation thereof) and original purchaser have agreed this record shall not be resold or used for any other purpose”. Presumably this restriction was introduced because the music industry felt it could boost sales by forcing people to buy new records if they wished to hear them. Some records also prohibit selling “below price fixed by the patentee” (meaning the record company). The “first sale doctrine” in the US and parallel rights in other countries, such as the “exhaustion of rights” in the UK, now acknowledge the right of owners of legally purchased copies of recordings to re-sell these. Keeping a private copy is forbidden under this doctrine.

Another common restriction prohibits “public performance” without license, indicating that there were such things for record recitals or dances to recorded (rather than live) music. Towards the end of the Second World War, some recordings bear the simple message “Licensed by manufacturer only for non-commercial use for phonograms in homes”.

Enter the tape recorder
After the end of the Second World War also, tape recording achieved sufficient maturity to be used at first within the industry itself to make recordings and significantly later for home use. Some time in the late 1950s or early 1960s, long playing records, which had emerged by this time, included in their message to buyers a ban on unlicensed copying.

Strangely, many records from the 1960s or 1970s had no information on restrictions at all. Information on labels and sleeves usually advertised the virtues of recording technologies employed, although one sample inspected ruled out copying, public performance and, additionally, hiring.

The 60s and 70s in retrospect seem to have been the heyday of the recording industry with claims by artists (Crosby, 2004 – yes the David Crosby of CSNY and Byrds fame) that they had great freedom at the time, and that the record companies were run by people who loved the music and not just the money. It was during this period that the cassette tape and a range of devices suitable for its recording and reproduction entered the scene, making home copying a viable proposition for virtually anyone. In 1971, there was a “sound Recording Amendment” to the 1909 US Copyright Statute. While this was aimed mainly at curbing bootlegging of vinyl LPs, it also applied to cassette recordings. A tax on blank cassette tapes was proposed by industry at this time, but not granted until the 1980s. The reason for lack of pressure was a period of continued growth of music sales. What is seldom remembered now is that the economic situation of the industry was actually boosted by sales of cassette recordings: for a brief time sales of music on pre-recorded cassettes exceeded those of vinyl LPs. At around this time, LPs sometimes included the information that copying for personal use was tolerated. This is probably the origin of the perceived right to private copying. It was possibly a concession to habit (so-called “party mix” tapes compiled from personal collections) and also due to reservations about criminalising the customer in an otherwise healthy climate, apart from the problems in seriously prosecuting infringements.

However, a 1980 Amendment to Section 117 of the US Copyright Act of 1976 acknowledges the right to make backup copies of computer programs for use in the case of destruction. It is this right which forms the basis for recent claims to the right to personal copies.

The advent of the standardised compact disc in the early 1980s stopped a beginning downward tend in sales by the music industry since many consumers made a complete switch to the new medium. Cassette machines were still used for copies, which were now clearly inferior to the original recordings. Digital Audio Tape would have provided the means for quality copying but never achieved any breakthrough due to built in “serial copy management” and lack of backing from the industry as an alternative medium for sale of pre-recorded music.

Digital technology brings the issue to a head
CDs from the 1990s until the present bear the legend, “All rights of the producer and owner of the recorded work reserved. Unauthorised public performance, broadcasting, copying and hiring of this record prohibited.” With the advent of cheap CD burners and even cheaper blank CDs, it became possible to produce virtually identical copies of the original recordings. Digital compression techniques have even made this unnecessary, since the vast majority of listeners is completely satisfied with good compressed versions.

The reaction of industry has been the introduction of restrictions to use programmed into the media themselves. Instead of describing conditions of use, the media bear warnings that they are copy controlled and might not function in certain devices. There is certainly no acknowledgement of any right to make copies for personal use or as “back ups” in case the medium itself is damaged or destroyed.

Restrictions on use throughout the history of recorded sound thus appear to reflect technological developments posing alternatives to commercial recordings to copy recordings bought by others, or to provide the opportunity to listen without prior purchase (public performance, hiring, to some extent also resale). With the industry arguing that buyers do not actually own recordings, it could be argued that sales of used sound recordings has never been legal. While consumer information indicates that this is contentious, the first-sale doctrine has acknowledged the right to resale. The general situation also seems to have been no different in the US than it is throughout Europe. These are obviously hypotheses based on the information provided to customers of the recordings. Only serious legal research can provide the facts.

Bottom line
Apart from a brief period of tolerance starting in the mid-1970s, copying always seems to have been prohibited, or at best subject to some kind of authorisation. There is also some doubt on whether consumers have actually ever “owned” the physical recordings or whether these were simply a means to transmit rights for a limited period. The restrictions on public performance and resale would seem to imply this position on the part of industry, which is perhaps entirely encapsulated in the statement “Licensed by manufacturer only for non-commercial use for phonograms in homes”.

Gallery of record labels from 1920 to the present



Figure 1: A c. 1920 recording only referring to the trade mark on the (long defunct) label’s name. (The rights are probably still claimed by BMG-Sony, Time-Warner or someone else).



Figure 2: A record issued by a subsidiary of the well-known independent label, Blue Note. This only states that the record may not be broadcasted on the radio.



Figure 3: This US recording contains a lot of information including patents going on to state that it is licensed only for non-commercial use for phonographs in homes. The second line tells us that “Mfr. & original purchaser have agreed this record shall not be resold nor used for any other purpose…” (Making flower bowls of unwanted records was popular in the 1950s).



Figure 4: This 1952 British recording prohibits unauthorised public performance, broadcasting and copying.



Figure 5: Record bags sometimes contained information to consumers. This 1950s sample tells us all.



Figure 6: Now we’re in the LP era. This German release on the then independent Atlantic label has no restrictions at all. There is also no information on the cover or inner sleeve. The 1960s and early 1970s were regarded by many as the heyday of the recording industry. American records bore no different information.



Figure 7: This early British recording (1970) by Superstar Elton John prohibits copying.



Figure 8: A 1975 German issue states that copying (except for personal use) is prohibited. This kind of information is included on recordings from other labels in Germany around this period. Polydor labels are more boring than this one.



Figure 9: In the CD era now, this German recording makes no exception to the ban on copying. This one states that copying without permission is prohibited. An innocent customer might assume (s)that he has to ask for permission. Otherwise the record company assumes that customers know which rights they have.



Figure 10: A new, copy controlled CD. Not only is unauthorised copying, public performance, hiring or rental prohibited, but the label contents are also copyrighted. In addition the medium is copy-controlled and the label at the top of the picture bears the warning: “On some equipment, for example car CD players, playback problems may be encountered”. The album from which the single CD is taken contains a compressed version of the music and a special player which installs itself when the CD is inserted in a computer drive. It didn’t work when I made an attempt to play it on my Sony computer and there is a rumour that HMV’s player contains a virus. At any rate, Blue Note is no longer independent (see figure 2) but belongs to EMI.

Sources:

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. His own record collection, accumulated over almost 40 years and including items from the beginning of the 20th century to the latest copy protected CDs, forms the basis for this article.

Status: first posted 28/10/04; included in INDICARE Monitor Vol. 1, No 5, 29 October 2004; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=54