Bootleg Recording - Legal Issues - Laws and Court Rulings

Laws and Court Rulings

The Berne Convention for the Protection of Literary and Artistic Works has protected the copyrights on literary, scientific, and artistic works since 1886. Article 9 of the Convention states that: Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Under the Berne Convention, when a composer puts a new song in a "fixed form," for example sheet music or an audio recording, copyright law grants them the exclusive right to control who may perform that song (called performing rights) as well as control over how any derivative work is used, such as a recording of a performance of that song. These rights are retained for at least 50 years after the composer's death (typically longer). In some cases, if the song being performed is in the public domain or is free content and is performed faithfully, no copyright is violated by recording it; however such a recording may still violate performers rights, a type of neighboring right that is recognized in many nations. Where they exist, performers rights may have a shorter duration than full copyright; for example, the Rome Convention sets a minimum term of twenty years after the performance.

One example of an organization that promotes performers rights is the World Intellectual Property Organization (WIPO), founded in 1967, a specialized agencies of the United Nations that aims for the international protection of intellectual property rights. Article 6 of the international WIPO Performances and Phonograms Treaty of 1996 specifies: "Performers shall enjoy the exclusive right of authorizing, as regards their performances: (i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and (ii) the fixation of their unfixed performances." The WIPO Copyright and Performances and Phonograms Treaties Implementation Act in the United States says "(a), unless authorized by the owners of copyright in the sound recording or in the musical works embodied therein, neither the owner of a particular phonorecord may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending."

Most artists have made little effort to pursue legal action about bootleg recordings, viewing such "rarities trading" as harmless provided that it is not being done for profit. The benefits of interfering with such trading are fairly minimal compared to the potential ill-will generated against the artist, as the illicit works are generally circulated among the artist's most loyal fans, which have the most interest. Most record companies also have not shown an interest in pursuing or prosecuting small-scale bootleggers, but this could change at any time.

In 2004 U.S. District Judge Harold Baer Jr. struck down respective part of the 1994 Uruguay Round Agreements Act banning the sale of bootleg recordings of live music, ruling that the law unfairly grants a seemingly perpetual copyright period to the original performances. He dismissed a federal indictment of Jean Martignon, who was running a Manhattan mail-order and Internet business that sells bootleg recordings. The Recording Industry Association of America disagreed with the ruling, saying the decision "stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorized recordings of live performances", according to spokesman Jonathan Lamy. In 2007, Judge Baer's ruling was overruled, and the United States Court of Appeals for the Second Circuit found that the anti-bootlegging statute was within the power of congress. 492 F. 3d 140

In 2011, a judge ruled in favor of singer Paul Collins, whose group The Beat lost substantial revenue from a series of unauthorized bootleg recordings released by an underground record label. The recordings were unknowingly engineered during The Beat's tours with The Police, Eddie Money and The Cure. Although the label argued that the recordings were tracked and mixed by an independent investor during the 1970s and 1980s, Collins was awarded an unspecified amount of damages. Collins was granted permission to digitally re-master and officially release the live recordings. In response to negative publicity from fans accusing him of being greedy, Collins attempted to make a public statement about piracy. In 2012, Collins made the recordings available to everyone as free MP3 download tracks to fans worldwide.

Read more about this topic:  Bootleg Recording, Legal Issues

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