The European Copyright Directive and Possible Sunlight on the Horizon for Quad

[ubertrout]

So, we're getting some cool re-releases of quadraphonic recordings from 1969-1976 or so, but it's kind of been a trickle...Dutton has been giving us some new stuff, and Pentatone has been reliable on this front, and we've gotten isolated other releases where the band was the mover behind the release. But it's kind of been a trickle. But I'm wondering if some coming copyright deadlines might force a lot more out of the vaults.

In the EU, under Directive 2011/77/EU (text here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:265:0001:0005:EN:PDF), the term of protection for sound recording was extended from fifty years to seventy years. However, it also added the following language:

If, 50 years after the phonogram was lawfully published or, failing such publication, 50 years after it was lawfully communicated to the public, the phonogram producer does not offer copies of the phonogram for sale in sufficient quantity or does not make it available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them, the performer may terminate the contract by which the performer has transferred or assigned his rights in the fixation of his performance to a phonogram producer (hereinafter a “contract on transfer or assignment”). The right to terminate the contract on transfer or assignment may be exercised if the producer, within a year from the notification by the performer of his intention to terminate the contract on transfer or assignment pursuant to the previous sentence, fails to carry out both of the acts of exploitation referred to in that sentence. This right to terminate may not be waived by the performer. Where a phonogram contains the fixation of the performances of a plurality of performers, they may terminate their contracts on transfer or assignment in accordance with applicable national law. If the contract on transfer or assignment is terminated pursuant to this paragraph, the rights of the phonogram producer in the phonogram shall expire.

Put another way, if a sound recording is not offered to the public in a manner where it is readily listenable 50 years after release, the artist can invoke their right to terminate and get all the rights back in the sound recording. This is the reason why we've seen so-called "copyright" releases of long-bootlegged material from artists of the 60s - if the material isn't offered for sale or download/streaming, the record company can lose the rights in the track.

I haven't seen clear argumentation on this one way or another, but the quad version of an album has its own copyright separate from the stereo version, even if it's the same mix, just spread onto four channels. Accordingly, I'd think that the labels would be vulnerable to having their copyrights in quad recordings be terminated unless they release them to the public on the fiftieth year after they were released. I have to imagine that the threat of this, coupled with the upside of...y'know...selling SACDs/BDs to people who want them, will encourage labels to be much more willing to license quad material for release.

Just an idle thought, but it makes sense to me. None of this implicates the law outside the EU, but the EU is of course a very substantial market and losing rights there lessens the value of rights everywhere, not least because unlicensed releases start popping up legally and circulate worldwide.

 

[quicksrt]

So, we're getting some cool re-releases of quadraphonic recordings from 1969-1976 or so, but it's kind of been a trickle...Dutton has been giving us some new stuff, and Pentatone has been reliable on this front, and we've gotten isolated other releases where the band was the mover behind the release. But it's kind of been a trickle. But I'm wondering if some coming copyright deadlines might force a lot more out of the vaults.

In the EU, under Directive 2011/77/EU (text here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:265:0001:0005:EN:PDF), the term of protection for sound recording was extended from fifty years to seventy years. However, it also added the following language:


Put another way, if a sound recording is not offered to the public in a manner where it is readily listenable 50 years after release, the artist can invoke their right to terminate and get all the rights back in the sound recording. This is the reason why we've seen so-called "copyright" releases of long-bootlegged material from artists of the 60s - if the material isn't offered for sale or download/streaming, the record company can lose the rights in the track.

I haven't seen clear argumentation on this one way or another, but the quad version of an album has its own copyright separate from the stereo version, even if it's the same mix, just spread onto four channels. Accordingly, I'd think that the labels would be vulnerable to having their copyrights in quad recordings be terminated unless they release them to the public on the fiftieth year after they were released. I have to imagine that the threat of this, coupled with the upside of...y'know...selling SACDs/BDs to people who want them, will encourage labels to be much more willing to license quad material for release.

Just an idle thought, but it makes sense to me. None of this implicates the law outside the EU, but the EU is of course a very substantial market and losing rights there lessens the value of rights everywhere, not least because unlicensed releases start popping up legally and circulate worldwide.

If you haven't seen clear argumentation on this one way or another, why are you stating this as fact?

"the quad version of an album has its own copyright separate from the stereo version, even if it's the same mix, just spread onto four channels"

I don't know about this, I would expect a judge to assert that a quad format is like a different format of the same thing, LP, cassette, CD, quad, mono 45, etc. Same music, same copyrights for performers and writers.

 

[ubertrout]

If you haven't seen clear argumentation on this one way or another, why are you stating this as fact?

"the quad version of an album has its own copyright separate from the stereo version, even if it's the same mix, just spread onto four channels"

I don't know about this, I would expect a judge to assert that a quad format is like a different format of the same thing, LP, cassette, CD, quad, mono 45, etc. Same music, same copyrights for performers and writers.

Under US law there's clearly a separate copyright in the quadraphonic mix than from the stereo mix, and I don't see any reason why it should be any different under EU law. It's a different situation from the new format argument - a quad mix is a artistically different product from the stereo mix. Even beyond that, I'd think that the risk of litigation over the issue, compared to the low costs of actually releasing, seems pretty clear cut to me.

 

[bmoura]

If a sound recording is not offered to the public in a manner where it is readily listenable 50 years after release, the artist can invoke their right to terminate and get all the rights back in the sound recording. This is the reason why we've seen so-called "copyright" releases of long-bootlegged material from artists of the 60s - if the material isn't offered for sale or download/streaming, the record company can lose the rights in the track.

I haven't seen clear argumentation on this one way or another, but the quad version of an album has its own copyright separate from the stereo version, even if it's the same mix, just spread onto four channels. Accordingly, I'd think that the labels would be vulnerable to having their copyrights in quad recordings be terminated unless they release them to the public on the fiftieth year after they were released. I have to imagine that the threat of this, coupled with the upside of...y'know...selling SACDs/BDs to people who want them, will encourage labels to be much more willing to license quad material for release.

Well, first of all, there are many albums where the record label is willing to license it for reissue but the artist is not.
So having the Quad editions of albums revert to the artist after 50 years won't necessarily result in more Quad reissues.

Secondly, if this would be a Quad only reissue without the corresponding Stereo edition, most reissue companies would pass on that in a heartbeat.
Remember that 85-90% of the reissue market is looking for Stereo reissues, not Multichannel.

Interesting legalities. Not sure it changes much.

 

[ubertrout]

Well, first of all, there are many albums where the record label is willing to license it for reissue but the artist is not.
So having the Quad editions of albums revert to the artist after 50 years won't necessarily result in more Quad reissues.

Secondly, if this would be a Quad only reissue without the corresponding Stereo edition, most reissue companies would pass on that in a heartbeat.
Remember that 85-90% of the reissue market is looking for Stereo reissues, not Multichannel.

Interesting legalities. Not sure it changes much.

I'm not saying this would be a panacea or anything like that. My thought is mostly that it gives companies greater incentives to release quad (and other) unreleased or out-of-print recordings. It's been remarkably effective for mid-60s material, I don't see why it wouldn't at least make labels more interested in licensing (or releasing outright) where that is an option.

This discussion may be helpful: https://www.law360.com/articles/492241/a-look-at-europe-s-new-music-copyright-law

 

[ubertrout]

I posted this two and a half years ago; we're now at 1970, the 50 year mark for the first released quad recordings. This means that (a) the use it or lose it provisions kick in regarding the EU, and (b) for countries that still have a 50 year term of protection for sound recordings, the recordings become public domain. Most countries with a 50 year term are somewhat economically marginal, but not all - Russia and China (including Hong Kong) are 50 years (to the extent protected at all de facto), as are New Zealand and Israel best I can tell (both have had proposals to go to 70 years, but they don't seem to have been passed). So are others like Taiwan, Thailand, and South Africa. For most countries the term is 70 years, while in the US they don't become public domain until the 2060s.

What does this mean given that most of this board is countries where the recordings will remain in copyright? I'd think it would make licensing easier, especially if the licensor knows they'll be taking advantage of the "use it or lose it" provisions. On the other hand, the recordings going into the public domain might impact their viability for licensing? Just idle copyright thoughts.

Edit to add: apparently some quad recordings were released on tape in 1969. Those should theoretically be over the hump and in the public domain in some countries, and available to the original artist to reclaim in the EU. Not sure anything will happen, of course.

 

[The Auroran]

This is a real vipers nest and quite possibly enough of a nightmare to make a few lawyers very rich.

BUT, working on the principle that "Ubertrout's" posting is a theoretical possibility it would only cover the small number of Quadraphonic albums within the boundaries of the EU's bordEU', which would not cover 99.8% of the releases from the other territories around the world.

Of those EU releases that were released in the 1970's, pretty much all of them (which were single inventory releases) have been reissued on CD in the intervening years so there's not a lot left available to make any further action viable.

Just my view on a deeply complex issue.

 

[ubertrout]

I'm only thinking in terms of quad here (although it would apply to other material as well not in print). And my point is that the quad mix would need to be issued to meet the terms of the EU directive. Probably not a productive lawsuit, but potentially a bargaining chip.

 

[The Auroran]

As we are talking EU, which we are thankfully leaving, its effect can only affect a small number of titles that were originally copywritten within the bounds of the EU.
There's a problem, which stops the EU bully boys from actually doing anything.

Lets take the case of Tangerine Dream. 3 albums were mixed, encoded in SQ and released on single inventory albums, and probably cassettes. There were no methods of releasing (like Q4 or Q8) the albums in a discrete format, so the only way it was available was in SQ.

Over the years the original four channel masters have dissapeared, and once the copyright returned to Tangerine Dream all they had to use was those same SQ masters.

The directive is another waste of time and money created by the EU without thinking about it, nothing new there - straight bananas anyone?. The original four channel tapes of a majority of the German quad releases are missing, and as far as the French Deccas releases go, none of the four channel or QS masters survive.

As I hope I've proven this directive is yet another pointless waste of time with no teeth.

 

[ubertrout]

The EU directive applies to all sound recordings in the EU, regardless of their origin. It doesn't apply outside the EU, once again regardless of where the sound recording originated.

Edit to add: ABKCO just tried to do an extension release via YouTube for the Stones alternate takes/mixes/live tracks from 1969: https://www.digitalmusicnews.com/2020/01/01/unreleased-rolling-stones-recordings-youtube/

 

[The Auroran]

The EU directive applies to all sound recordings in the EU, regardless of their origin. It doesn't apply outside the EU, once again regardless of where the sound recording originated.

Please expand on "all sound recordings in the EU, regardless of their origins". Are you really saying they actually believe that a recording copywritten in the US, say in the 1990's, and released via a distribution agreement with a European supplier but is no longer available in the EU has to be reissued under this directive. Really?

And people wonder why the UK can't get out of the corrupt EU fast enough. Straight Bananas again........

 

[ubertrout]

Correct, although if it was made in the 90s the 50 year line is still a long way away. But yes, a recording made in the US in 1970 can have its EU rights reverted to the band from the label if the label fails to make it publicly available this year.

 

[The Auroran]

Correct, although if it was made in the 90s the 50 year line is still a long way away. But yes, a recording made in the US in 1970 can have its EU rights reverted to the band from the label if the label fails to make it publicly available this year.

Thanks for clarifying that. Anyone who has seen what the EU says and doesn't do would more than likely say it's just a bag of hot air. It's not going to happen, as I keep saying, it's another straight banana.

That was one of the most stupid directives for a long time, they hadn't considered that bananas grow curved because that's how nature meant them to be. It was quietly dropped, after spending a lot of money on it.

 

[atrocity]

That was one of the most stupid directives for a long time

https://www.theguardian.com/politic...launches-the-vote-leave-battlebus-in-cornwall

A Brussels ban on bendy bananas is one of the EU’s most persistent myths.

Bananas have always been classified by quality and size for international trade. Because the standards, set by individual governments and the industry, were confusing, the European Commission was asked to draw up new rules.

Commission regulation 2257/94 decreed that bananas in general should be “free from malformation or abnormal curvature”. Those sold as “extra class” must be perfect, “class 1” can have “slight defects of shape” and “class 2” can have full-scale “defects of shape”.

Nothing is banned under the regulation, which sets grading rules requested by industry to make sure importers – including UK wholesalers and supermarkets – know exactly what they will be getting when they order a box of bananas.

 

[humprof]

https://www.theguardian.com/politic...launches-the-vote-leave-battlebus-in-cornwall

A Brussels ban on bendy bananas is one of the EU’s most persistent myths.

Bananas have always been classified by quality and size for international trade. Because the standards, set by individual governments and the industry, were confusing, the European Commission was asked to draw up new rules.

Commission regulation 2257/94 decreed that bananas in general should be “free from malformation or abnormal curvature”. Those sold as “extra class” must be perfect, “class 1” can have “slight defects of shape” and “class 2” can have full-scale “defects of shape”.

Nothing is banned under the regulation, which sets grading rules requested by industry to make sure importers – including UK wholesalers and supermarkets – know exactly what they will be getting when they order a box of bananas.

Besides which: Snood is the only person on QQ who gets to make pronouncements about bananas.

(Let's keep it light, y'all. Don't feed the trolls!)

 

[winopener]

Correct, although if it was made in the 90s the 50 year line is still a long way away. But yes, a recording made in the US in 1970 can have its EU rights reverted to the band from the label if the label fails to make it publicly available this year.

A pair of examples:
Santana I : Album copyright (stereo) is 1969, quad copyright is 1974. Quad has not been re-released.
Pink Floyd AHM : Album copyright (stereo) is 1970, quad copyright is 1974. Quad has been re-released lately.

How the above will apply?

 

[ubertrout]

A pair of examples:
Santana I : Album copyright (stereo) is 1969, quad copyright is 1974. Quad has not been re-released.
Pink Floyd AHM : Album copyright (stereo) is 1970, quad copyright is 1974. Quad has been re-released lately.

How the above will apply?

Man, this is the sort of thing I'd assign as an exam question if I wanted to make law students miserable.

Santana I - if quad mix isn't reissued by 2024, band could terminate assignment of rights and reissue on their own if they want.
PF AHM: Quad copyright is controlled by label until 2044.

Is AHM the one where they released the quad mix sub rosa as a hidden track? That might complicate things.

Also, I had a chance to re-read the EU Copyright Directive, and the EU copyright for an unreleased mix may well expire if not released within 50 years . But if it's never released and there's no bootleg circulating, that might do more harm than good to its availability.

 

[winopener]

Santana I - if quad mix isn't reissued by 2024, band could terminate assignment of rights and reissue on their own if they want.
PF AHM: Quad copyright is controlled by label until 2044.

Ok now it is clear.

Is AHM the one where they released the quad mix sub rosa as a hidden track? That might complicate things.

no, Meddle was a un-linked 5.1 (no way to playback unless ripping the disc) and it was out of the question because it's a new 5.1 mix. Only Echoes, and fairly incomplete, was mixed to quad as a demo and was included in the boxset. AHM had the 1974 mix released in SQ/Q8 in 1974 USA/UK + SQ other countries, and on blu-ray as Early years boxset and as a single release (devi/ation? iirc)

Also, I had a chance to re-read the EU Copyright Directive, and the EU copyright for an unreleased mix may well expire if not released within 50 years . But if it's never released and there's no bootleg circulating, that might do more harm than good to its availability.

Problem is: how do you know that 50 years had really passed for that specific unreleased mix?
For example, Eagles: there was a supposed quad mix of Hotel California, and that was clearly mixed in 1976, assigned a cat.n. then never released. But for Desperado? Is a 1973 release, a quad mix was supposed to be released, but when it had been mixed? 1973, 1974, 1975? How do you determine the date if you have, for example, only the quad mix without any history behind?

 

[The Auroran]

I hope people here don't start thinking that we're going to get a glut of quad albums being released, including previously unreleased mixes. This directive is a toothless piece of dream work by the EU.

Here's some issues: Who is going to pay for the release/reissue of this material? What of the copyright owners either, can't afford to, or don't feel there is enough demand to make the release finantialy viable.

 

[winopener]

I hope people here don't start thinking that we're going to get a glut of quad albums being released, including previously unreleased mixes. This directive is a toothless piece of dream work by the EU.

Here's some issues: Who is going to pay for the release/reissue of this material? What of the copyright owners either, can't afford to, or don't feel there is enough demand to make the release finantialy viable.

You're absolutely right.
But the law enforcement can be a kind of "moral suasion" on let the quad masters licensed on time before their 50th birthday. That's the real point, and something the likes of D-V can use for good.