Working Groups/publicdomain/pdw/law/faq

= Public Domain Works FAQ =

'''These are not legal advice and should not be taken as such. This page is a work in progress and it may contain errors'''

Do you get a new copyright for digital remastering?
We asked a law professor, who didn't know of any case law on this point, but advised it would hinge on interpretation of the relevant section of the UK statute which is s5A(2) of the Copyright Designs and Patents Act 1988:

"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". Seems this is precisely designed to prevent rights holders claiming a new copyright for reissuing an old recording though, as stated, we do not know whether this has ever been backed up by case law.

In practice the situation seems confused. For example:

Example 1: Glenn Gould
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, and the (c) refers to the artwork.)

So the (c) date of 1992 indicates the CD was issued in 1992. If a new copyright had been awarded for remastering the recordings for CD, the right holders would have put (p) 1992 as well. That they didn't strongly indicates that this recording 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.

Example 2: Heifetz
Compilation of Heifetz recordings all from 1930s reissued by some small label. On case you find (P) 2004 which implies the assertion of a new phonographic copyright with the issue of the compilation.

Bridgeman vs. Corel
Bridegman vs. Corel, a US case in which the UK-based Bridgeman Art Library sued - unsuccessfully - Corel for using digital images of old masters originally produced by Bridgeman in their clipart, suggests new copyrights are not awarded when remastering. Although decided in the US and concerned with images rather than music so not binding on UK courts, this case is persuasive for two reasons. First, the court applied UK law in determining the decision (see excerpt below). Second, there is a close analogy between pictures and music, especially when interpreting the crucial statutory phrase 'to the extent to which it is a copy'.

Excerpts from the Judgement
Source: see link above

"On November 13, 1998, this Court granted defendant's motion for summary judgment dismissing plaintiff's copyright infringement claim on the alternative grounds that the allegedly infringed works -- color transparencies of paintings which themselves are in the public domain -- were not original and therefore not permissible subjects of valid copyright and, in any case, were not infringed. n1 It applied United Kingdom law in determining whether plaintiff's transparencies were copyrightable. n2 The Court noted, however, that it would have reached the same result under United States law.

....

Laddie, a modern British copyright treatise the author of which now is a distinguished British judge, discusses the issue at Bar in a helpful manner:

"It is obvious that although a man may get a copyright by taking a photograph of some well-known [**23] object like Westminster Abbey, he does not get a monopoly in representing Westminister Abbey as such, any more than an artist would who painted [*198] or drew that building. What, then, is the scope of photographic copyright? As always with artistic works, this depends on what makes his photograph original. Under the 1988 Act the author is the person who made the original contribution and it will be evident that this person need not be he who pressed the trigger, who might be a mere assistant. Originality presupposes the exercise of substantial independent skill, labour, judgment and so forth. For this reason it is submitted that a person who makes a photograph merely by placing a drawing or painting on the glass of a photocopying machine and pressing the button gets no copyright at all; but he might get a copyright if he employed skill and labour in assembling the thing to be photocopied, as where he made a montage. It will be evident that in photography there is room for originality in three respects. First, there may be originality which does not depend on creation of the scene or object to be photographed or anything remarkable about its capture, and which resides in such specialties [**24] as angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques etc: in such manner does one photograph of Westminster Abbey differ from another, at least potentially. Secondly, there may be creation of the scene or subject to be photographed. We have already mentioned photo-montage, but a more common instance would be arrangement or posing of a group. . . Thirdly, a person may create a worthwhile photograph by being at the right place at the right time. Here his merit consists of capturing and recording a scene unlikely to recur, eg a battle between an elephant and a tiger. . ." n45

Moreover, the authors go on to question the continued authority of Graves' Case under just this analysis:

"It is submitted that Graves' Case (1869) LR 4 QB 715 (photograph of an engraving), a case under the Fine Arts Copyright Act 1862, does not decide the contrary, since there may have been special skill or labour in setting up the equipment to get a good photograph, especially with the rather primitive materials available in those days. Although the judgments do not discuss this aspect it may have been self-evident to any contemporary [**25] so as not to require any discussion. If this is wrong it is submitted that Graves' Case is no longer good law and in that case is to be explained as a decision made before the subject of originality had been fully developed by the courts. n46

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n45 HUGH LADDIE, PETER PRESCOTT, & MARY VITORIA, THE MODERN LAW OF COPYRIGHT AND DESIGNS 3.56, at 238 (1995) (footnotes omitted, emphasis added).

n46 Id. at 239 n.3 (emphasis added)."

How about for a "raw" digitised file?
Best to assume the same approach as above applies i.e. no new copyright (this is just the "copy of the copy" scenario, but for 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 give me an extra copyright.

Do you get a new copyright for digital versions of old recordings extracted from the original record?
For example, what happens with Naxos with their historical series: http://www.naxos.com/mainsite/default.asp?label=NaxosHistorical?

The answer here is: it depends! See digital remastering FAQ above.

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

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?
Qu: 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)

Public Domain Dedications in Europe
Qu: 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?
TODO: 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.

= FAQ (v2) - TODO merge with main FAQ =

'''This page is a work in progress, it may contain errors. It is not intended as nor should it be taken as legal advice.'''

== 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 grant compilation copyrights, which don't protect the underlying (compiled) works, but rather the arrangement in the compilation. So you may extract the public domain parts of the work and republish without fear of infringing. However, if you simply reproduce the compilation then you infringe the compilation copyright.

Is a new arrangement of a traditional song classed as a a derivative work? How different does a work have to be to be an original arrangement?
How long is a bit of string? This is a question ignored by statute and only addressed in case-law. Generally the level of originality is very low, although this varies 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 minimum effort will suffice for musical copyright. Certainly, "secondary" 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 public domain 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 (longer) terms for authorial copyright in works made for hire and for performer copyright, although the relevant codes do not given a definitive answer.

EU: copyright terms are the same across Europe following harmonization. See Council Directive 93/98/EEC (harmonizing the term of protection of copyright and certain related rights), which states that Author's rights are life+70 and performer rights are 50 years.

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? Also, are moral rights based on copyright, or are they separate? If they are separate, could there be works free of copyright but that the author can assert moral rights over? ==

Unsure here. More research is needed. 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)

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?
We 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 -- can assume this was the case. Unlikely to affect this project as we are simply making available works which have already been available (so integrity not a great issue) and we will provide attribution where we could.

Performing, broadcast, mechanical reproduction, recording rights once the recording is PD?
We need a definitive list of rights and definitive answers on how PD affects them. e.g. BBC royalties are different from broadcast royalties IIRC. We need advice on this point.

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 make available the recordings since it is not PD in the full sense (the recording copyright may be PD but the authorial copyright layer is not). Furthermore the question of derivative works is a step beyond PD Works which simply seeks to make PD works available.