Collecting,and Ethics (moderated)

Subject: RE: Collecting,and Ethics (moderated)
From: pattyClink
Date: 07 Jun 07 - 09:31 AM

Dick, I'm not a collector, I don't have any feedback for you from that viewpoint.   

My ancestors 'got collected'.   The recordings were stowed away, poorly indexed and deteriorating, in distant and obscure places where only 'scholars' could access them (or the public at great expense and hassle).

So my ethical problem is when collectors 'save' material from the last living exponents of it, then hide it away from the local community. (Yes, I know, the sources should have passed it on to the children but many were tone deaf and working two jobs and didn't realize how quickly the stuff would get lost--after all, someone had come along and 'saved' it.)

If you're going to collect, do you not have a responsibility to leave copies in the local library rather than hauling the only copies to the capital city? Isn't this duplication and archiving where some grant monies should go, rather than piling up endless one-copy central collections no one ever sees, or to publishing abridged selections by later researchers?

Subject: RE: Collecting,and Ethics (moderated)
From: GUEST,Leth Sakeman
Date: 07 Jun 07 - 04:59 AM

I heard a tune once in a pub and cobbled together a song and vid. I said it was about a light-tinged bunny rabbit but really it was just to try and impress the model the record company hired for the shoot. Next thing I knew, the BBC wanted to give it a prize for being traditional. Where's the ethics?

Subject: RE: Collecting,and Ethics (moderated)
From: GUEST,Adrian Owlett
Date: 07 Jun 07 - 02:23 AM

It seems that all performances are protected (in the UK at least) by the Performers Protection Act. I found this when checking on the web, and I think it is of relevance here. The snag would seem to be that a performer COULD assign away his/her rights. It is clear that the rights would need to be assigned in order for a commercial release - unless that release was made by the performer. If no assignment is made then presumably the person exploiting the performance would be infringing.

Briefing Note – An Overview of Performer's Rights

Performance rights are of world-wide application and as with literary, musical and dramatic works. There is no registration requirement in the UK for protection and are independent of copyright vesting by virtue of the Copyright, Designs and Patents Act 1988 UK. Each participant is entitled to the performance right.
First Owner of Copyright

The first owner of the performance right is the performer. The rights granted by the Act are the reproduction right, distribution right, rental and lending right and the making available right: s191A. These are proprietary rights that may be sold, licensed or otherwise dealt with as personal property. Agreements to do so must be in writing.

Duration

The effect of the Term Directive has been that the Duration of a performer's right last from 50 years from the date of the recording. If the recording is first published or shown in public within that initial term, protection continues under Part II for an additional 50 years.

The Term Directive also introduced the principle of reciprocal treatment for non-EEA nationals, whereby a legal person who does not qualify under the UK Act is only entitled to the duration of protection in their own country. Citizens and countries that are part of the EEA are treated as through they are UK citizens of the UK.

Rental Right

Where a film producer and an actor enter into a contract for the production of a film, the rental right is automatically transferred to the producer unless it is otherwise dealt with in the contract for the performance, and a right to equitable remuneration vests in the actor.

Performers are granted performance rights under Part II of the Copyright Designs and Patents Act. The performance right protects the visual components of a performance as well as the aural aspects of a performance.

Definition of Performance

The preconditions to protection under the Act are that the performance falls within the statutory meaning of a performance under Part II, and given by performers within the statutory definition.

Performances are defined in section 180(2) of the Copyright, Designs and Patents Act as a live performance of:
a dramatic performance
a musical performance
a reading or recitation of a literary work, or
a performance of a variety act or similar performances.
Readings and Recitals

Of these terms, only a literary work in sub-section (d) is defined elsewhere in the Act.

Literary works take their definition from Part I of Act, thus a literary work must fall within the definition to as a precondition to performance rights accruing under section 180(2): section 211.
The performance right will not accrue therefore unless the work that is recited is a literary work within the meaning of Part I of the Copyright, Designs and Patents Act UK . It is arguable that the work need not be in a material form prior to the recital in order for a recital or reading to be performed and granted the benefits of protection.

Dramatic performances referred to in s 191A include performances that incorporate movement and/or speech that conveys a dramatic meaning. As a point of reference, a dramatic work defined in Part I explicitly includes dance and mime, however the meaning is broader than this. Dramatic works include any work of action that may be performed before an audience whether or not the words are spoken or music is played.

A musical performance does not rely on the definition of a musical work under Part I of the Act. This means that improvisations may be performed by the performance right as well as forms of music that some may consider not to be music, such as music which is avant garde in character.

Improvised Performances

There is no general requirement that a work has been reduced in a material form as a pre-requisite to protection by the performance right, and it is arguable that improvised works also fall within the definition of a live performance.

A live performance may be a rehearsal of a stage play, a performance for a film by an actor by an individual, rather than a company.
Payments to Performers - Equitable Remuneration

The performance right also entitles performance to equitable remuneration when their performance is played in public or otherwise communicated to the public. This right may not be assigned to a third party other than a collecting society, who then takes the responsibility of collecting the proceeds of the right on their behalf. Parties may not contract out of the entitlement for equitable remuneration, and to the extent they attempt to do so, the contract will be void.

The Copyright Tribunal was created to deal with disputes between performers and persons contracting to use their rights. The Tribunal may revisit and reassess agreements for remuneration between the performer and a person liable to pay equitable remuneration.
Infringement of Performance Rights – The Reproduction Right
The right to reproduce performances ('the Reproduction Right') is infringed when any person records, broadcasts, or copies a recording or a broadcast of a whole or a substantial part of a qualifying live performance: s 182A(1).

Infringement may take place by transient copying, copying indirectly without the consent or licence of the performer: s 182(1A), (2) & (3).

The reproduction right is also infringed by exposing such copies to the public for sale or otherwise, rents or lends such copies to the public. The definitions of rental and lending take their meanings from what they are commonly understood to mean. Provision for making recordings of performances available to the public has been specifically outlawed.

It is also an infringement of copyright to import into the UK infringing articles into the UK for a commercial purpose without the consent of the performer, or to possess, sell, hire, lend or expose for sale.

Service providers who allow their services to be used with actual knowledge of the infringement by a third party is also liable for the infringement of the performer's right. In making out a defence, the court will have regard for any notices provided pursuant to the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) and the particulars provided including the name and address of the sender and the details of the infringement alleged that is taking place.

Subject: RE: Collecting,and Ethics (moderated)
From: Howard Jones
Date: 06 Jun 07 - 07:09 PM

Does a source singer/musician have any more rights to traditional material than a "collector"?

Subject: RE: COllecting,and Ethics (moderated)
From: McGrath of Harlow
Date: 06 Jun 07 - 06:15 PM

So far as songs which have been passed around in the oral tradition and no one knows where they came from, this is a situation where the old slogan "Property is Theft" is indeed true.

Subject: RE: COllecting,and Ethics (moderated)
From: dick greenhaus
Date: 06 Jun 07 - 05:57 PM

When you take a recording device out into the field, there are two things you can collect: songs (lyrics and melodies) and performances. Sharp, John Lomax, Flanders and many others collected songs. Ethically (and academically) sources should be credited in publications, but there no copyrights to deal with unless the songs were omposed by the collectees.

Performances, on the other hand, pose a stickier problem. The earliest collectors who used recorders (such as Grainger, Warner etc.) didn't have to worry much about using their recordings commercially--the quality just wasn't good enough. But the more modern collectors--people like Alan Lomax, Hamish Henderson, Mike Yates, John Cohen, Sandy Paton--collected performances that were used on (at least semi-)commercial recordings. I don't know just how these were dealt with; I also don't know how the should be dealt with.

As a folkie, I am eternally grateful to these collectors for making the music available. From a money standpoint, I doubt if there ever were a high enough volume of sales to make for significant royalties.
But, I know of folks who were recorded and feel that they were ripped off.

I don't have answers. I wish some of the collectors who frequent (or just visit) Mudcat would add their opinions.

Subject: RE: COllecting,and Ethics (moderated)
From: GUEST,Val
Date: 06 Jun 07 - 05:52 PM

PS - my above post was being formulated while MMario was making his reply. My comments are NOT aimed specifically at his comments.

Regarding M's scenario:

If I were the Collector, and (as described) could find no other data on the work, I would discuss with the source my intent to publish, and to cite the source and his G'grandfather. That documentation should be sufficient evidence that in good faith I consider the piece in Public Domain.

If the source said HE now wanted to register a copyright this late in the game, that could make things fun for the lawyers. The tale as told seems to indicate no copyright had been registered, and I believe the current laws are probably most generous and even THEY say the work reverts to Public Domain long after the creator's death unless transfer of rights had been documented. But if the source wanted to make an issue of it, best to know that before publishing the collection.

As usual, there is definitely a gray area between the bounds of what is Legal and what is Right.

Val

Subject: RE: COllecting,and Ethics (moderated)
From: GUEST,Val
Date: 06 Jun 07 - 04:20 PM

{Disclaimer - I have not waded through the entirety of the other Collection thread, so perhaps this has already been address)

Quick answer (opinion). The Ethical Collector MUST follow all applicable laws, and must make every reasonable effort to ensure he/she KNOWS what laws apply to whom. Secondarily, he/she SHOULD also acknowledge sources as a courtesy to the source and service to later scholars.

For purpose of my point, let me limit "Folk Music" to those songs/tunes for which the composer is unknown/unknowable. (I'm not saying this is the "correct" definition for Folk - just using it for this one discussion). Also, this is just my own uneducated opinion.

A person who "Collects" Folk Music these days probably ought to document their sources to make their collection more useful as a scholarly resource and to demonstrate that he/she understands and follows applicable laws. I believe an Ethical Collector will discuss his intention to publish with the Source. Whether or not the collector "owes" anything to the source is between the two of them. Citation of the source(s) in the publication may not be REQUIRED, but it certainly seems appropriate for someone who has even a tiny interest in scholarship.

The Ethical Collector will take steps to ensure he/she knows the copyright status of a piece before publishing. This may involve extra research to find additional sources & cross-references, rather than simply taking one Source's word that the piece is "Traditional".

There could very well be a gray area in Copyright law if the collector Publishes a detailed Arrangement of a Folk Song that is substantially identical to how the Source performs it. Personally, I believe if the tune is in Public Domain, then a simple lead line and chord progression is not sufficiently unique to deserve copyright protection (but I'm not a shyster - er, "copyright lawyer" - so my belief may be wrong)

Publication of a Collection of folk songs may be copyrighted, just like any book. If the Arrangements are sufficiently complex as to be a unique Creation by someone, then copyright protection may be applied to the Arrangements. But not to the songs themselves.

Copyright ought not be issued nor protected for a song that has previously been legally in the Public Domain. That's my opinion. An Ethical Collector will not seek copyright protection for anything that he/she did not create.

It behooves anyone who publishes or records a song to verify whether it is in Public Domain or if the any rights are still active. If there is an active copyright, then take the appropriate steps to follow the law (that is, do whatever is required to secure permission from the appropriate person/entity. It might not be as difficult or expensive as you think.) Documenting this permission in the publication may not be required but it seems to me like a good idea. (i.e "song Traditional, arrangement copyright John Doe, used by permission")

If the piece is definitely in the Public Domain, but the composer is known, then the Ethical Collector will cite the composer. Additionally, he/she may/might/could include a footnote about the Public Domain status of the piece just to preempt future inquiries. (i.e. "Written by Henry Tudor, 1491-1547")

Someone who knowingly tries to steal publication or recording rights from a composer or arranger is not, and cannot be, an Ethical Collector. Someone who does not bother to even try to verify copyright status of a piece is too careless to be called an Ethical Collector. Beyond those simple statements, the Lawyers get involved and things can get ugly, as previous messages have implied.

Val

Subject: RE: COllecting,and Ethics (moderated)
From: MMario
Date: 06 Jun 07 - 04:03 PM

Given the scenario Diane posted:

ethically the rights should belong to the singer/songwriter; but unless the author can prove that, they are SOL, legally.

My opinon, ymmv


Another, (to my mind more interesting) scenario:

A field collector records a song from a source that the collector can find no record of being known previously. All evidence points towards the source having learned it as a young child from his great-grandaddy who died 70 plus years ago.

Where would "intellectual property" rights lie?

Subject: RE: COllecting,and Ethics (moderated)
From: The Borchester Echo
Date: 06 Jun 07 - 03:44 PM

I was asking about liquidated assets, specifically publishing rights.
Do they transfer, or do they rest with the author (assuming it has been established who that is)?

Subject: RE: COllecting,and Ethics (moderated)
From: McGrath of Harlow
Date: 06 Jun 07 - 03:38 PM

As Dick said, if you can prove you had the song first the bloke with the tape recorder is out of luck.

And you can't sell what you don't own. And you can't buy something from someone who doesn't own it. Or take it in payment for debts or whatever.

Subject: RE: COllecting,and Ethics (moderated)
From: The Borchester Echo
Date: 06 Jun 07 - 03:03 PM

there's little if anything the original singer can do

What about a sub poena on his neighbours to testify that they know only too well that the dirges (er, I mean intellectual property) belong to him and that bloke with tape machine nicked it?

that depends solely upon the contract that defines whatthe purchaser bought

Does it?
And insolvency case law doesn't enter into it?

Subject: RE: COllecting,and Ethics (moderated)
From: dick greenhaus
Date: 06 Jun 07 - 02:52 PM

Two questions--two answers
To the first, If the original singer can demonstrate prior art (in the US, this generally requires a provable written document) the person recording the work has no rights. If this demonstration is not available, the singer's out of luck. The solution, if you're a song writer, is to register the songs yourself.

As to the second question, legally that depends solely upon the contract that defines whatthe purchaser bought. If the seller owned the rights, he can sell them.

After the fact, there's little if anything the original singer can do.

Subject: RE: COllecting,and Ethics (moderated)
From: The Borchester Echo
Date: 06 Jun 07 - 02:44 PM

A song colllector goes to his open mic and secretly records a dozen songs from the local teenage angst diary merchant.
He registers them as his own work with the MCPS/PRS, records a CD of them and it goes platinum.
Whose royalties?
However, his publishing company (as a result of some possibly shady shenanigans) goes into administration and is sold on.
Someone (let's call him Mr B) buys it.
Question: who owns the rights now (ethically and legally)?
Were they transferable?
And what (if anything) can teenage angst merchant do about it?

Subject: Collecting,and Ethics (moderated)
From: dick greenhaus
Date: 06 Jun 07 - 02:27 PM

I'm opening this because I think it's an interesting and important subject. It will be restricted to discussions of field collecting and the interactions between collectors and sources---not record distribution.

This is an edited (moderated) thread. This thread will be edited by dick greenhaus. Feel free to post to this thread, but remember that all messages posted here are subject to deletion, if the moderator feels them to be drifting too far from the shore.
-Joe Offer-