RPTF Copyright Series Session One

Charles Cronin: And, and so um let me, let me got it. Ok, let me share my screen and um a few slides that I wanted to uh discuss with you. Let’s see, slide show, share screen. Uh Let’s see. OK. [mouse clicking] Is my screen now shared?

Female voices: Yes, it is.

Charles Cronin: It is terrific. Ok. Let me just. OK. So I wanted to uh begin with a very uh uh broad uh consideration of uh two fundamental um but rather difficult issues uh that arise with every uh every copyright dispute, every copyright uh uh issue. And that is um the truth, what is considered legally protectable, copyrightable expression and for how long does copyright protect? So let’s start with for how long it’s protected. Um And in uh in considering both of these questions, one thing to bear in mind is that it’s um uh both the term and the scope of copyright protection are flexible and are there’s no, there’s no uh uh uh a fixed term for, for um all of uh for for eternity. It’s, it’s a constantly evolving uh process, both the term and the scope of copyrightable protection. So let’s start with the, with the term for how long is it protected? Well, on the slide, you can see it’s continually uh changing and you’ll also note it’s continually expanding. Um so the first term in the late 18th century was a 14 and 14 renewal term of a total of 28 years. Um and [throat clearing] for the next three revisions of the Copyright Act, which was in 1831 and then 1909, the term continued to expand, but note the word renewal, um renewal um implies what are called formalities. And that is registration issue of publication. Um and uh the fact that you had to renew your copyright the way today you would have to um uh renew a trademark by indicating that it’s continually in use. This, this renewal requirement, the formality of requirement of dealing with the copyright office and making a formal claim and renewing the formal claim uh for copyright protection came to an end in 1976 and 1976 is the law, the act in which under which we’re currently operating, which doesn’t mean that the term um has been uh the term that was established at that time is current. So in 1976 the term was the life of the author plus 50 years. So query whether in some cases if the author dies within the year of uh of uh of, of uh of, of creating the work, the term coul- his, his or her term could be in fact shorter than that under the 1909 act. Um so it’s the life of the author plus 50. Um this was expanded thanks to Sonny Bono in 1998 in the 1998 act that extended it to life plus 70. Um this is also known as the um uh OK, I would say not paradoxically but uh um scathingly perhaps as the Mickey Mouse Term Extension Act. Um they, because many people think that essentially Disney was behind this because they wanted to protect their uh their seminal uh characters.

Charles Cronin: Um in any case. Um it and I should also caution that when I, when I say the term is life plus 50 or life plus 70 there are many variations on this uh on this term depending on um whether it’s a corporate author or a joint author or a single author. So this is just a broad uh statement of the, the uh of the, the current term of copyright protection. Um and as I, I fo- im- implied there, it’s, it’s quite tricky to determine whether something is, in fact within uh copyright. Uh uh it still within cop under copyright protection. There are a couple of good resources that I wanted to bring to your attention. You may be familiar with them because both of them came from the library uh World One is by Lolly Gasaway who’s now retired um uh who created a a a a really superb chart where a kind of a um a kind of an algorithm by which you can determine whether a work is still protected by copyright. Um and that’s uh you’ll find that all over the, all over the web. It’s now been uh used and linked to by virtually every fair use uh site of every library um uh in the, in the country um and probably elsewhere as well. Um and then there’s uh another, even perhaps more complex uh version of this uh when do works fall into public domain by Peter Hirtle at Cornell. And so I’d encourage you to uh take a look at these uh these guides uh which will uh as I mentioned, sort of present an algorithm for determining whether a work is still uh under copyright protection. Uh The Peter Hirtle uh guide is particularly um uh valuable and that it deals with um international copyright. So it’s not, not limited to uh US uh copyrighted works in the United States.

Charles Cronin: Um so, um and even while these are models of clarity, you’ll, you’ll see once you, you take a look at these um these guides that they uh that they, it’s, it’s not an, it’s not an easy question. They, it, it probably uh these guides raise a lot of questions um in the, the minds of the user as to whether a work has been published. And when was it published? Um uh uh when was it created, etcetera. Um but they are a very good starting point for determining whether uh a work is in the public domain. OK. So now we turn to the issue of what is copyrightable and like the term um the scope of copyright protection continually uh morphs and essentially it almost continually expands.

Charles Cronin: Um so if you have the very first US, copyright uh act from 1790 protected, specifically maps, charts and books. Um andvif you think at the time 1790 the, the US was very much a developing country and what was valuable at the time? Well, maps, charts and books. So factual information is very valuable, whether it was like tie charts or uh or or surveying maps. And these were con considered obviously valuable works of uh intellectual property of authorship and they were uh and hence, they were, they were protected by copyright. Um in 1831 musical works were specifically included in-

Charles Cronin: in- hello,

Allison Schein: Sorry about that. You’re on again.

Charles Cronin: I’m on. Ok. Yeah. Ok. So I’m not sure exactly where I was cut off. But um 19 so in 1909, a very significant development that we’re going to talk about um in, in, in greater detail, um musical works in a format rendered mechanically were protect, specifically identified as protectable works um uh under the statute. Um and we’ll see how that came about and why. Um and then 1976 the, the uh the door was flung wide open and any original work of human expression that was fixed was prot- uh potentially protectable. So there are a couple of things to bear in mind here on the 1976 act, which is still, uh still uh current, the current statute, um, original works of human expression. That means it has to be a human. So if I record my dog barking, that’s not a, um, a uh, a protectable expression, um, has to be human expression and it has to be original. What does that mean? It doesn’t mean it has to be brand new. It means it has to be specifically created by a an- the individual who’s claiming protection. So that means if for some reason I wrote word for word Shakespeare’s Hamlet without ever having knowledge of this, of this work prior I could copyright Hamlet from, from the moment I fixed the work. That means I have a copyright in Hamlet, but that doesn’t mean anybody can perform or copy Shakespeare’s version. So my copyright is useless, but technically, I could have a copyright, copyrightable work in something that existed before as long as it was original to me, as long as I created it.

Charles Cronin: Ok. Um so, so once again, copyright, the scope of copyright protection continually expands. So it started out with maps, charts and books which included a lot of, a lot of factual works. Um and uh by, but by 1976 so it was original work of uh of human expression basically anything that can be fixed in a tangible medium of uh uh a tangible format. Um one thing to bear in mind also is that over time, um copyright has moved, moved away from uh protection of factual works like tie charts and surveying chart. And in fact today, uh factual works are not protected by copyright. So if you have a uh you know, telephone book, um that’s just uh you know, rote uh listing of numbers and addresses, names um in an alphabetical order that’s, that’s not protectable um because it’s not, it’s purely factual. Um so it has to have some spark of creativity um so of human expression.

Charles Cronin: OK. So the, the, but the point is that what is copyrightable continually expands just as the term of copyright uh has expanded over time as well. Now, let’s see if I can move forward. Here we go. Ok. I told you we would talk um in some detail about the development of copyright protection for these mechanically uh rendered musical, musical works and specifically, um wanted to talk about the infamous White Smith versus Apollo case from 1907. If you want to learn more about the case than that we’ll discuss. Uh at the moment, you can take a look at this, the site that I referenced here, um which, which provides access to the, the musical works that were uh in dispute as well as my commentary as well as the, the, the, the opinion of the Supreme Court.

Charles Cronin: Um very briefly, um the facts of the, of the case. Um, a White-Smith was a music publisher published, I think probably a lot of, um Tin Pan Alley works enormously popular at the, at the turn of the, the 20th century. Um and Apollo was a player piano maker. Um, so they, they, they, they manufactured player pianos, but they also manufactured and distributed piano rolls. And I’m sure you’re all familiar with the piano roll. It’s a perforated roll. Um uh by which a, a player piano, whether it’s uh typically uh through human uh application of human effort with pedals or whatever um plays can play this uh uh uh play a, a work that’s encoded in these, in these perforations um on the, on the player piano. Um So what the, what was the case about? Um it’s actually quite tricky because it’s, it’s what’s known as a pretextual case. They weren’t really opponents. They were kind of just looking for the court to uh to uh clarify uh an ambiguity. So, White-Smith, the publisher of musical works print publisher, publishing sheet music, which you see up on the left-hand corner of the screen or maybe it’s in the right-hand corner of your screen. Um uh were publishing works which uh Apollo would then render as piano rolls. Um the question was whether these piano rolls would be considered copies of the musical works that White-Smith was publishing.

Charles Cronin: So, White-Smith was publishing uh uh these Tin Pan Alley works that were then being uh uh translated into uh into uh piano rolls by Apollo. And the question was whether this, these copies, these piano rolls were in fact copies that, that were protected under the copyright of, of uh that White-Smith owned in the musical works that were being transposed into uh these uh these piano rolls. Um so were piano, the, the basic issue was were piano rolls, copies of musical works. So, um OK. And here’s where things get interesting. Um because extraordinarily enough in, in, in, in most people’s perspective, um the court, the Supreme Court no less held that these piano rolls were not copies of musical works. Um Why not? Because they were not visual, visually intelligible to humans. Um so when you look at a piano roll, it’s like looking at the source code um or object code for uh for computer programs that well, you know, until the machine translates it or, or renders it into something more meaningful, it’s typically not intelligible to, for, for, to human eyes and minds. Um so these piano rolls were not intelligible to humans. In fact, they were simply parts of a machine and as a part of a machine, they couldn’t be protected by copyright. Um why did the court come to this uh very peculiar uh uh decision? Um in fact, I suspect it’s possible that uh just as some people can root, can read source code or object code and make sense of it. One could potentially, if you were very uh skilled in the creation of piano rolls, actually look at a piano roll and kind of get an idea of what’s, what’s uh what the musical work uh would sound like.

Charles Cronin: Um but the reason, one of the reasons behind this decision by the Supreme Court was the Berne Convention of 1886 in which it was established that works that were uh rendered uh musical works that were rendered in uh in, in on the uh the barrels of music boxes were not copies of the works being rendered. Um And this is quite extraordinary um because basically a music box is like the in the inverse, the technology is the inverse of piano rolls. So then rather than having perforated holes in a, in a, in a, in a, in a barrel, you have times that pluck as you as you all know, pluck the, the, the uh the, the no, the, the, the bits of metal that, that actually that are, that are tuned to particular uh pitch. Um how did this get into the Berne Convention? Well, where’s Berne, Berne is in Switzerland, which is I think still the principal uh manufacturing uh a country of manufacturer of music boxes and cuckoo clocks and very high end watches. So these um the uh the sponsors of the convention had a vested interest in uh protecting this uh uh this industry um and not limiting the uh the works which they could uh uh render in these uh in these music boxes. So the court alludes to this, uh this convention, even though the US was not a signatory to it and didn’t become a signatory, I think until sometime in the 1980s, they alluded to it and said, oh, well, you see the Berne cConvention um specifically exempted this technology um uh from uh from being considered uh rendering copies of the musical works that are rendered uh through the playing of this uh of, of uh this technology.

Charles Cronin: OK. Um 1909 Act. So immediately after this decision uh came out, uh Congress got to work and uh there was a new copyright act uh uh enacted in uh 1909 that specifically identified musical works rendered mechanically um and identified these as copies. Um this, however, um raised an antitrust question. So if you could go back again to the, uh let’s think again about the Apollo, the White-Smith versus Apollo case. And I told uh I mentioned this was a pretextual case. So what the, the um the parties were trying to determine was whether the uh piano rolls were copies of a uh a musical work. In which case the manufacturer of the piano rolls would have to uh obtain a license from the owner of the musical work or the publisher of the musical work, if they, if they were not considered copies, they, the, the, the the the gates open.

Charles Cronin: Anybody can, anybody can make a, a piano roll copy. The danger, however of um of uh inherent in the establishing of uh the establishing these rolls as copies of, of the underlying music work is that there could be an uh an uncomfortably cozy arrangement between the piano roll manufacturers and the owners of the musical work. And that the Congress was concerned that the owner of the musical work would, was so closely aligned tied to the create the, the, the the manufacturer of the piano roll that there could be an antitrust concern. And that the uh the major manufacturers like Apollo of piano rolls would enter into um a too cozy a relationship with the music publishers and exclude all other uh uh smaller uh piano roll and piano player, a player, piano manufacturers from access to these musical works. So they built into the statute, something called a compulsory mechanical license. And this the, the compulsory license uh states or, or the, the, the provision states that if I presume a piano roll manufacturer manufactures a ver a licensed version of a musical work that’s been published by a publisher like White-Smith, anybody else can do the same thing without the permission, the specific permission of the, of the uh the, the music publisher or the, the, the, the copyright holder of the musical works as long as they pay a statutory license fee, this paved the way for what, what today we call cover versions.

Charles Cronin: So even today, if a uh let’s say a, a popular singer uh wants to uh um make a version or, or, or, or perform and, and record a version of a song by Frank Sinatra or um they can do so without the permission of Frank Sinatra’s estate. As long as they pay a statutory license fee that’s established uh by the, by the, by the government. So these are, these cover versions now are, are uh enabled or are, are, are possible. These non, non authorized cover versions are, are possible. And today because of the uh this uh compulsory uh mechanical license provision uh that was established in the 1909 act. OK. This leads to a uh another uh uh issue and this is uh perhaps particularly uh relevant to uh your concerns as uh as a sound recording archivists and, and broadcast uh radio archivist. Um And that is the development of performing rights societies, otherwise known as PROs perform rights organizations. Um this is something to, before we get to the establishment of these uh these organizations, we need to uh be very clear on uh the fact that most musical works today have two distinct copyrights. One is the musical work. So if you look, uh you know, that’s the score up there, um that’s the musical work, that’s the, the, the work that was authored by the, by the, by the composer and the musical work uh is uh comprises the, the, the, the musical content as well as the lyrics um as they call them the words of uh of any, any sung musical work. Um so there’s a musical work and then there’s a fixed sound recording of that musical work. So, um for instance, if there is a uh let’s say the Berlin Philharmonic uh performs a Beethoven Symphony and records a Beethoven Symphony. The musical work by Bee- Beethoven uh is, is one piece of intellectual property which of course is in the public domain, but there’s that also a sound recording of that by the Berlin Philharmonic, there is one copyright in that uh in that uh for, for that uh work and that’s the sound recording.

Charles Cronin: So there is a, there is a sound recording copyright despite the fact that the work is in the public domain. Now for a popular singer today or let’s say, I don’t know, a work by John Adams uh which is uh you know, there was the John Adams musical work and either John Adams or the publisher owned the, the copyright to that, but then if there’s a performance of it, which would have to be licensed by John Adams or the, the owner of the, of the copyright that performance when recorded and fixed in a, in a CD or digitally or, or CDS are digital, but um whether it’s fixed on tape, but a CD or uh in some other format, that performance is a separate copyrightable work. And the tricky part or one of the tricky part uh comes uh in the uh protection, the scope of protection for the sound recording. And the limitation on the protection is with uh performances of sound recordings. So the, the sound record performance of the sound recording is not an exclusive right of the owner of the sound recording, unlike the musical works of the music. So if I’m John Adams, I have an exclusive right to performances of Doctor Atomic, I think he wrote Doctor Atomic. Um I, however, if I record that work and that work is performed on, on the radio, I don’t, my sound recording copyright does not give me an exclusive right to that radio broadcast performance.

Charles Cronin: And so that’s the, that’s the limitation in the uh the sound recording copyright. uUm sound recordings only became eligible for copyright protection in 1971. Um so they were, and of course, under the 1976 act, they were also uh incorporated as protectable works of authorship. But this is a um a very um important distinction to uh to recognize um and to, to bear in mind and even you will find even in copyright lawsuits today, lawyers who are typically not that well versed in copyright will, will, will mangle the, the, the separation of the musical work from uh from the performance of it. And um and so this is, it’s not a, it’s, it’s, it’s quite a uh an important and, and yet uh fairly subtle um issue to, to uh bear in mind. OK. But back to the performing rights societies. So I mentioned that there are, there are, are two today, there are two two rights: the sound recording and the, and the musical work right.

Charles Cronin: I want to talk now about performance of the musical work. That is the underlying work, the, the, the, the, the sheet music, if you will or the, the score, the, the which is uh the, the copyright of which is owned by the, either the, the author, him or herself or, or the publisher, more typically the publisher. So in um in the, at the turn of the century, in the Tin Pan Alley era, with the development of uh of broadcast radio, um the uh uh composers and its authors and their publishers were increasingly concerned that uh public venues, restaurants, radio station or, or, or public public distribution uh uh forces were using their works, performing their works uh without their permission or without paying uh paying any royalty fees. And so they established um in 1914 ASCAP American Society for the Composers Authors of Publishing and publishers um which licensed public performances of musical works. Um And this, this of course included radio stations um which were performing the musical works. And in many, in many cases, they were live performances of, uh let’s say Tin Pan Alley works, um live performances that were broadcast, these were uh performances, however, which in many cases were not being, uh, were not authorized or were not and for which no royalty was being paid. ASCAP, was established as a, um, as a kind of a collective, an uh an author’s collective, whereby ASCAP uh the society would license to broadcasters, to restaurants, to dance halls to, to um uh in a public performance spaces, the right to use the musical work, the right to perform the musical work, which is a right that is given that is, that is specifically uh granted under, under the 1909 act.

Charles Cronin: Um so the uh ASCAP then became a a force by which uh composers and, and uh and uh songwriters um all um banded, not banded together, but all registered essentially with ASCAP uh to um uh to allow ASCAP to represent them uh to these uh various performance venues, whether a radio station or, or, or physical venue. Um to license performances of the uh of the musical, of the musical work. Um and this was the uh the, the royalties were said were ultimately established by what’s called the Copyright Royalty Board, which is a government or- organization um things however went awry once again on. Um And uh uh because of antitrust concern um ASCAP um since all, virtually every uh uh composer and author were coming to ASCAP for representation, ASCAP had essentially a monopoly on uh on uh popular uh music uh that they would license to uh license uh for which they would grant performance licenses. Um And because of this, uh ASCAP became very powerful and was able to uh uh cre- uh insist on what, what many considered usurious uh royalty rates and, or simply wouldn’t deal with certain radio broadcasters um uh and wouldn’t license uh uh license their music or, or, or unless that uh uh um uh under uh in inequitable terms. So, uh the broadcasters um radio broadcasters joined together and formed a competing organization called BMI Broadcast Music International. And so they all abandoned ASCAP and said, fine, you know, we, we, we won’t license your, uh we won’t uh obtain licenses from you instead, we’re going to, uh we’re going to have our own stable of uh songwriters and deal directly with them. Um And they are going to be members of this new organization called Broadcast Music International.

Charles Cronin: Um and uh so this was established in 1939. It still exists as does, of course, ASCAP, um and they uh uh we were competing uh force whereby uh as ASCAP uh was, was no longer uh uh a monopolistic uh um uh entity in this, in this, in this uh industry. Um and ultimately, the Department of Justice got involved because they were concerned about ASCAP’s monopolistic practices and um uh establish what’s called a consent decree under which as a still operates, whereby they, the Department of Justice kind of monitors what ASCAP does in terms of their uh relationships with radio broadcasters. Um and uh uh it’s sort of an oversight and uh just to make certain that there is, there are no anti-trust or monopolistic practices uh continuing.

Charles Cronin: Ok. Um so what happened in the digital area era? So I mentioned that that under the um under the 1976 act, um uh performances of sound recordings are not, are not protectable. Ok. So the, so the radio stations could perform uh and distr-, you know, broadcast uh musical works, or, or sound recordings of musical works without paying a uh a, a licensing fee to the owner of the sound recording copyright. They were paying however, a um a royalty to the owner of the underlying musical works, whether it’s typically um uh BMI or ASCAP they were paying those royalties but not, they had no obligation to pay for performances of sound recordings. Um but in the 1990s, uh the uh digital uh sound recording services um became available like Spotify, Pandora. And ultimately, uh Congress enacted the 1995 Digital Performance Right And Sound Recordings Act which addresses only interactive services. Um and that is on demand. So if I, if I request a specific work from Pandora or Spotify and I uh that is a protectable performance of the sound recording. And so this act established a uh a a s- very narrow exemption for uh digital sound recordings that are purchased or, or, or received on demand or through a, through a specific request of the service. Um so it’s not, it’s not broadcast uh a broadcast where, where the uh radio, uh DJ or whatever will, will play whatever he or she what, wishes, it’s something if you, if you specifically ask for a, a download or a distribution of a particular work that sound recording, that performance is protected uh uh under copyright and has to be licensed. And this raises in my mind a question. I, I, and I’m in Los Angeles and there’s a radio station KUSC which is something you’ve probably heard of. Um that has a, a program. Um I think it’s called “Your Requests” and um people email or call and specifically to say, you know, I would like to hear Chopin Études performed by Maurizio Pollini. Is that an on demand? And then they, they play it presumably or maybe some of it um and query whether that’s, that falls within the, the category of an on demand interactive services request. Um I simply don’t know but um it, it did occur to me as I was, I was thinking about this uh um this issue in preparation for our discussion.

Charles Cronin: Ok. Um, let’s see how I’m doing on time. Ok. I want to very briefly, um, uh touch on uh copyright exemptions and limitations. Um and this is probably um uh of particularly of significance to those uh those interested in um uh use of uh, of, of protected works, whether it’s a, a radio broadcast, or sound recording, musical work, um, especially for educational uh and uh educational and uh uses. So they, the, the, the big uh kind of safeguard or safety net or uh uh steam valve um for uh a copyright protection is uh the, the policy of fair use, which is uh in fact built into the, the current act, the 1976 act whereby uh uh one can use a copyrightable work, whether it’s a sound recording, whether it’s a musical work, whether it’s a radio broadcast, um you can use at least portions of it without permission without license uh from the permission of the, the copyright owner depending on a number of factors that uh if in fact, there is a challenge to the use, courts will, will uh consider the purpose and character of the use that is um is it for profit or are you doing this for, for educational purposes or in a, in a nonprofit organization, et cetera. Um the nature of the protected work, if it’s a highly factual work it’s probably a greater uh assumption that it is a fair use if it’s a very creative work. On the other hand, um the courts would probably be less uh inclined to consider the, the use fair. Amount used. Obviously, if you, you know, if you, you, you reprint three quarters of a book, um that’s, that’s a significant portion of a, let’s say a 500 page book. Um and that would cut against the use being fair. And then finally, and perhaps most importantly, the effect on the market value of the protected work. So is the work that you are creating, damaging the uh the, the work that you have, you have borrowed for. Um if it’s becoming a substitute for the original work, uh you are uh you, you’re, you’re less that that’s less likely to be considered a fair use. Um and I should mention that there was in just last week, in fact, a week ago today at the Supreme Court, there was an in uh extremely important fair use case. May maybe you read about this um involving Andy Warhol and a um a, a photographer and I think Goldstein, maybe Elizabeth Goldstein. Um and uh the, the court is now the court that the, the case is addressing the issue of uh fair use and what constitutes a fair use if you’re familiar with the, the case that involved um the photographer taking um uh uh pictures of the pop star Prince some years ago. And Andy Warhol’s use of those photographs, some of one of those photographs to create a series of, I guess um silk screens um in which he, he uh superimposed various uh uh colors um and distortions over the, over the, the photograph and created this series that became fabulously um profitable. Um and the question was whether the question is whether this was a fair use um or whether he actually uh he, he infringed the copyright of the photographer without paying her any, any royalties. Um uh so this is, it, it’s a very, very ambiguous area, whether the work of uh of uh Warhol was transformative of the, of the work of the photographer or whether it was, it was uh um uh whether it was in fact an ide- a clearly a derivative work of the in which it would be protected by the, which it would have to be licensed by the uh the, the photographer who owned the copyright in her photograph. The question of, to what extent is that photograph a copyrightable work? How much original authorship did she invest in the creation of it? So many, many um interesting questions it’ll be decided or the decision will probably come out next spring. So uh keep an eye on that. And I think I um I should probably um uh let all of you have a, an opportunity to uh to discuss any questions you have. There are, there are a few other exemptions and limitations that I wanted to, to touch on. Um, but I think it’s more important uh to give you an opportunity to uh uh chime in.

Allison Schein: Thank you, Charles and everyone. Yes, please drop your questions in the chat. The first one is, did ASCAP have the ability to reject licensing requests for performances who were able to afford the established fee. And if so on what grounds.

Charles Cronin: Um this might have changed over time, I would, I would guess. But um, no, I don’t believe- ASCAP typically, I mean, today it like it has what are called blanket licenses. So they will, they have to license their entire uh corpus of works uh to, to all comers. Um so no, I don’t think they can discriminate um uh based on who is, who was making the request for the license. And in fact, that might even be built into the, the consent decree um uh language uh presume I haven’t read it, but prob uh presumably there is language that addresses that uh that question

Allison Schein: Looks like that did thank you so much.

Maristella Feustle: And we, we have another question in the chat. Um a really good example of the, the kind of overlapping stakeholders that, that complicate radio cases. Um there’s the question uh in the case of World War Two radio transcription discs containing local radio station shows, uh of music, speeches, public programs, et cetera. Uh where does the copyright issue stand there? Um some of the programs are approved or recordings licensed by the US government for the war effort. But, but does that mean we can put the wartime recordings online?

Charles Cronin: Um, well, uh, that’s, it’s true that, that’s, that, that involves many issues but one that immediately springs to mind is that if, um, if the government uh commissioned these recordings and they are, the, the intellectual property is the, um, the, is, is, it belongs to the government and the government, the federal government cannot, um, does not enforce and does not, does not enforce any copyright. Anything that’s owned by the federal government is in the public domain. So I would guess the, there is a very strong argument in this case to say these are, this is gov- federal government, uh, uh, property and it’s, uh, available to all without, without charge.

Allison Schein: Another question. What about the works that are under US copyright but not under other countries copyrights, for example, Flanny Flannery O’Connor’s work?

Charles Cronin: That are under US copyright but not elsewhere.

Allison Schein: Correct?

Charles Cronin: Ok. It’s, um, well, chances are, they would be, we’re talking about countries that are members of the World Intellectual Property Organization and I, I agree to standard, uh uh

Allison Schein: The person asking the question says, yes, Flannery O’Connor’s work is not under Canadian copyright.

Charles Cronin: Oh, ok. Right. Ok. Yeah, there’s so, um, if you’re in Canada, um, yeah, you have different. That, that’s right. She’s, uh, her work, yeah, work is, uh, um, is not protected to, to this, you know. Well, right, you have, you have much, um, broader leeway in what you, you do with the work of Flannery O’Connor in Canada. Yes. Yeah, I think it, yeah, I believe Canada’s term is shorter than, I think it’s still life plus 50 and not, did not make, did not extend to life plus 70. However, um, most, um, countries with significant copyright industries, uh, have subscribed to life plus 70.

Allison Schein: Great.

Charles Cronin: No, that’s, that’s correct. Yeah. But in Canada, if it’s, if it’s, if, if, if I’m correct and it’s life plus 50 um and Flannery O’Connor’s works are now in the public domain. In Canada, you can do whatever you, you can do pretty much anything with her work.

Allison Schein: Another que-, uh, a hypo for you, a hypothetic. If there’s a radio show that includes a request for Miles Davis’s ‘Freddie Freeloader’, would they pay ASCAP and BMI and digital license fees if it is online as well as over the air? And if The Grateful Dead did a live cover of a Nirvana song who would pay the statuary statuary license fees, the radio station or the band or both?

Charles Cronin: Ok. Could you read the beginning? That the initial part I didn’t quite catch.

Allison Schein: Of course, the radio sh, uh, if there is a radio show that includes a request for Miles Davis’s ‘Freddie Freeloader’, would they pay the ASCAP and BMI and digital license fees if it is both online? So, if it’s terrestrial and streaming.

Charles Cronin: um

Allison Schein: So who pays what for a request for a Miles Davis song?

Charles Cronin: The radio station, the radio station would pay ASCAP. If, now, if it’s a request that’s, it’s, it’s a, if it’s a digital download, then then, then it gets more complicated, then you have it.

Allison Schein: If it’s just streaming.

Charles Cronin: Just uh well streaming and it’s broadcast.

Allison Schein: Yeah, streaming and terrestrial.

Charles Cronin: Then the radio station would pay ASCAP for the work. The, the work that’s being performed, which is which-

Allison Schein: Freddie Freeloaderthe

Charles Cronin: the they would pay. Yeah, for the, the, the musical work that’s being, being performed. Not for the sound recording.

Allison Schein: Ok. Uh And if The Grateful Dead did a live cover of a Nirvana song who would pay the statuary license fees? Uh, is this cover in the hypo um, broadcast? I’m a little unclear. Maybe David can shed light. Um he says, and if The Grateful Dead did a live cover of a Nirvana song, who would pay the statuary license fees. Would it be the radio station, the band or both? But I, is that an assumption that this is still the request show? So maybe we’ll keep it if it’s still the request show and they wanna do, they wanna play a Dead cover of a Nirvana song who pays the licensing fees, the statutory licensing fees.

Charles Cronin: Ok. I thought, I thought thogh that this was a live performance.

Allison Schein: I, let’s see, it is a request show with the Dead playing live. So we’re still within the confines of a of a terrestrial and streaming radio show. And one of the requests is a live version, live cover version of a Nirvana song performed by The Grateful Dead.

Charles Cronin: OK. Um [laughter] the classic lawyer’s response, it depends.

Allison Schein: [laughter] Also in archivist land too. So we’re well met with that.

Charles Cronin: I would guess. Do you know if there would it, um, the, the band, the Grateful Dead, would you say Grateful Dead or the, or what or? Greatf? Ok. They would have an arrangement or a contractual arrangement with the radio station, um, whereby the responsibilities would be clearly spelled out that, you know, the radio station would probably say you take care of all licensing issues, you indemnify us if we, if, if, if, if things go south, uh or they may say we’ll take care of everything, but we’re going to, you know, the, the, your performance fee is going to be significantly lower. So it’ll be, yeah, it’s a question of, um, uh, um, apportioning risk and, uh, and responsibility. Um, yeah.

Allison Schein: Would you be able to show your first slide with the title page, please?

Charles Cronin: Now, let’s see if I can. Yeah, there we go. Did you mean the next page or?

Allison Schein: Uh, Tim, I’m not sure. Does that work for you or did you want the next one? Uh, as I wait for him to answer one last question, are there any differences? Uh Tim answers? Yes, that’s perfect. Uh Dylan asks, are there any differences between the rights to a physical instantation of a radio broadcast. Example, the physical manifestation of reel to reel recording versus a digitized sound recording of that broadcast.

Charles Cronin: No, the, the, um, the only requirement and this is, is um somewhat particular to the US is that the work be fixed in a tangible medium. So it or has to be capable and it has to be, yeah. So even if it’s digital, I mean, if it resides somewhere on your computer that is, you know, it, it is a, that is a tangible um storage of the, of the work. So no, it makes no difference if you have it on an LP or a tape or a um or, or for that matter, a um a piece of sheet music um or a digital score. These are all, yeah, they are. It, it, no, it, it, it makes no difference what medium uh in, in what medium the work is fixed as long as it’s fixed now in, in France, for example, it doesn’t have to be fixed. So street choreography, if you’ve performed something, even if it’s not fixed, nobody took it, uh you know, nobody filmed it, nobody recorded it, nobody reviewed it. It’s still protectable. So if somebody watched that choreographic performance on the street in Paris and they did something similar somewhere else, even though it wasn’t fixed, there would be potentially a claim of infringement that couldn’t happen in the US.

Allison Schein: Excellent. And one last question squeaking in under the wire. What happens when one posts one’s own work of art on social media? Does that mean are you asking if it becomes copyrightable? Um or the rights? I’m not sure. I will hopefully see an answer or um, but I can we make the assumption that they are asking about their, their copyright status?

Charles Cronin: Well, it’s, it’s, it makes. Yes. Well,

Allison Schein: the social me. Oh, so will the platform own the copyright or does the owner? Ok,great.

Charles Cronin: Right. Yeah. No, no, there, no, that doesn’t whether it’s on social media or you, you, you know, put it on the, on, you know, the, in the town square or, you know, whatever it makes no difference. Um if you still have the rights now, query to extent to which you can control those on social media where you’ve, you know, send it out into the world um without any protection, whatever, virtually. Um yeah. Um but it doesn’t, but legally, it makes no difference. Um uh where you have distributed your work, you still have the same uh scope of copyright protection.

Maristella Feustle: All right. So we’re, we’re at the hour and this has been a, a great presentation to, to kick off the series because it, it lays out the, the complexity of what we’re dealing with um, in terms of what we’re navigating as we’re trying to preserve these recordings that have come up under these laws. And, um, and so our, our next, uh presentation in this series will be on November 17th. That’ll be uh Kevin Kevin Smith, who is the Director of Libraries at Colby College in Maine, talking about um teaching and coaching libraries about, about sound recording and copyright. So, um trying to bridge the gap between the, the legal complexities and the practical um day to day operations and, and aspirations to, to preserve these, uh you know, these aspects of our, of our cultural history.

Maristella Feustle: Um And then on December 1st, we’ll have uh Brandon Butler of the University of Virginia uh talk, talking about um over addressing and overcoming the uh the risk aversion and uh and uh just general risk management in how you approach preservation and access of these, of these collections that have, that have come up under, under this, this legal environment. And so with that, um thanks again uh to Charles for, for being our, our first presenter and uh thanks to all of you who have uh who have tuned in today. And uh we hope hope to see many of you again on the, on November 17th. And uh and I hope, I hope this has been, I hope this has been useful. So, uh thanks again and, and have a great day.

Charles Cronin: Thank you, Maristella. My pleasure. Thank you Alison.