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

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