Wednesday, 31 December 2014

The Beatles and "the Cliff Richard law"

A single from Kutmusic
It's been dubbed by the media as "Cliff Richard's Law", the change to copyright duration in sound recordings.

From 1 November 2013, The Copyright and Duration of Rights in Performances Regulations 2013 came into force, implementing the provisions of Directive 2011/77/EU which extended the term of copyright in sound recordings from 50 to 70 years. The change came after years of political wrangling and means that performers are entitled to receive income for an additional 20 years. Additional measures were also included to improve performers' revenue.

Extension from 50 to 70 years

One song can contain a number of different rights, for example copyright in both the music score and in the lyrics, both of which lasted for 70 years after the death of the author. In contrast, copyright in the actual sound recording, however, and the duration of a performers' rights in the recording only lasted for 50 years. The new Directive extended both of these terms from 50 years to 70 years, therefore narrowing the gap.

While some critics argued that many musicians would see little benefit, a study by the European Commission ("EC") found that extension of this term would give average performers additional income ranging from €150 to €2,000 per year, mostly from airplay royalties. Although these sums are fairly insignificant to many of the big names in the music industry, they are considerable for many other musicians, particularly session musicians. The EC also pointed out that many performers started their career in their 20s and that with life expectancy increasing, a performer who lives into his 80s and beyond would not be able to continue to benefit from the recording at what the EC pointed out to be a particularly vulnerable time of life.

It should be noted, however, that the extension will only apply to sound recordings that are created after 1. November, or that are still in copyright protection on 31 October 2013. It would not therefore bring a sound recording back into copyright where this protection has already expired after the 50 years.

Use it or lose it

"Use it or lose it": If a record company fails to market a sound recording during the extended period, assigned rights in the recording may revert back to the performer.

Work in Progress - Outtakes 1963 from Rock Melon

It is that last sentence which made The Beatles release the title "Bootleg Recordings 1963" at the end of last year. They tried to release everything that was still unreleased recordings from 1963 in order to retain their copyright to these recordings. However, they failed. A number of 1963 recordings remained unreleased, and therefore entered the public domain on January 1st, 2014. This was then taken advantage of by several minor record companies, who went on to release these songs, live performances and takes of songs in 2014.

A release called The Beatles: Work in progress from the Rock Melon label continues to be available in Europe, and is showing healthy sales.

2015

Now that the final day of 2014 is upon us, unless the Beatles/Apple/Universal Music are putting these last few hours to good use, all unreleased Beatles recordings from 1964 will become fair game for companies like Kutmusic and Rock Melon. Unless there's something I've missed.

We are talking studio session outtakes and unreleased radio material, but the main source will be live recordings of Beatles concerts. There are lots of these available on bootlegs, and this material will now be available for both big and small record companies to profit from. Hitherto unknown live recordings may also appear from fans' private collections during the year.

As "The Beatles Live Project" is on Apple's official agenda for 2015, they will have an opportunity to counteract by releasing lots of this kind of material officially, with nice packaging, liner notes, photos etc that the independent labels probably can't afford. Still, once the official packages are out, it looks to me like anyone else can just duplicate the stuff and market it at lower prices.

It's going to be an interesting year for Beatles fans.

24 comments:

Lee Beddow said...

Should be interesting either way though I'd like to think Apple knows what it's doing....

Helter Skelter said...
This comment has been removed by the author.
Helter Skelter said...

After evaluating all of the material in question, here is my latest theory:

The 1964 release was canned due to the poor quality of some of the material.
George's guitar playing is just terrible on 'AHDN' and 'Can't Buy Me Love'. His solo efforts are embarrassing.
The sessions for 'She's A Woman' are awful. Musically all over the shop. So Paul would not be happy about those hitting iTunes for the world to hear.
And also, much of this material is simply instrumental. By this stage they had started doing overdubs on 4-Tracks, so many takes have no vocal.

Just a thought. A logical, and not legal argument.

Any grey market release would not make it into mainstream media and scrutiny. Hence they ditched 1964.

Finally, 1963 was panned on iTunes for cost and quality. Again this could have swayed the decision.

Carl Gatto said...

Helter Skelter makes some good points, yet I'd be surprised if they don't protect the rest of the 1964 Hollywood Bowl tracks (i.e., songs such as "You Can't Do That", "If I Fell" and "I Want To Hold Your Hand" that weren't included in the officially released 1977 LP).

Internotional Tomes said...

The thing that's been missed is ironically featured in this article.

As the 1964 recordings (and indeed some of the supposedly 'missed' recordings from '63) were still under copyright protection on 1st November 2013, their term of protection was automatically extended from 50 to 75 years.

Therefore there's no legal reason to have to release them before that extension expires.

Additionally, as I remarked in January of this year, many of the recordings that had been previously bootlegged were undoubtedly and demonstrably stolen property when they entered the bootleg market in the 70's, 80's or later.

Therefore, criminal law already governed any grey market release whether or not they are under copyright. If record companies operating legitimately choose to release this material not only their assets can be seized but their personnel arrested.

So Apple/Universal always had as much legal power as they needed over all but the copyright in recordings caught in a period before the copyright extension automatically took effect, that is those recordings they released last year.

Helter Skelter said...

The extension from 50-70 years only covers previously released recordings, therefore anything unreleaed is not covered (as far as I understand).
But as you said, most unreleaed material was stolen from the EMI archives in the 1980s and therefore 'grey market'.
But as Roger has pointed out already, labels such as Rock Melon have already released material from 1963 unchallenged, and with good sales. So the sales rules would apply to these recordings as anything from 1964.
I think most true fans a very disappointed as this just further amplifies the need to buy boot releases in order to gain access to new material. I'd much prefer to buy something direct from Apple/EMI/Universal in stereo quality than some poor quality release.

Internotional Tomes said...

The reason that other artists 60's recording have been issued this year as 'copyright extension' sets is either because American unissued recordings had not been registered for copyright (as American law requires) or because new (american) owners of British recordings (which are copyrighted automatically) wish to bring them into line with American law for exploitation there in the future.

There's also the possibility that the owners of recordings simply wished to release them to the collector market.

And finally, given all of the badly-researched media coverage of this topic, it's well possible that some executive departments did not understand the issues. Indeed, there are lawyers who seem confused!

But it's really very simple and nothing to do with 'released' status as much media coverage and fan-speculation seems to have it.
it's to do with copyright status.

To get the extension, the recordings need to be in copyright in the first place

In the UK and some other territories, this is easy because the recordings have copyright as soon they're made. So anything recorded after 1st Nov 1963 doesn't need anything to be done to secure the benefit of the copyright extension whereas in the American market (and some other territories), copyright needed to be filed and a simple way (but not the only way) of doing this is to release recordings which asserts both copyright and copyright ownership.
This, I'd submit, is the path chosen with the 2014 'copyright extension' sets by the likes of Dylan and Beach Boys.

The Beatles don't have to do it and so they haven't/

Helter Skelter said...

Like I said, this is a grey area even for lawyers. Many well respect lawyers and music clearance experts online are stating that anything unreleased will become public domain in 2015, so there is no wonder why people are so confused.

Regardless of what is considered 'right' or 'wrong' I think that a well researched 1964 released could have been a big money spinner for Apple/EMI/Universal. As amongst the poor material is a plethora or superb audio from one of the most vibrant eras in FabFourdom, and I think that an annual 50th release would have been a great way of giving back to the fans who have spent thousands on remastered editon, after repackaged editon of the same material for the past 30 years.

Internotional Tomes said...

Another point of confusion seems to be an idea that copyrighted items need to be 'released' in order to assert them.
This is not the case.

That's a confusion with trademark law where a registered trademark may elapse through non-use (an issue for Apple Corps in the early 90's prior to the "Apple EP")

When copyrights' ownership are being transferred, an issue of asserting copyright becomes important in certain territories.

This is sure to be another factor in why some material has been boxed up in limited editions and other material has not. After all, if Universal has acquired a British copyright which has not previously been 'asserted' in other territories that require this, then they need to 'materialise' their 'technical' acquisition.

So the issuing of some material this year has less to do with the European copyright extension and more to do with this 'asserting' of newly-purchased copyrights in territories where this is mandatory which, as I said in previous post, is quickly effected by 'limited release'.

Debjorgo said...

They way Internotional explained it is the way I understood it, except that I disagree with the "nothing to do with 'released' status" line. As long as the songs had been released, there was no issue at all. If the tracks in question are not released in the next 25 years, they become free game.

I also disagree with Helter Skelter's comment that the songs are poor quality. I love every note of everything the Beatles recorded. I want it all.

Helter Skelter said...

For many fans this has gone well beyond any question of 50 or 70 years, and is a simple question of expectations. And for many true hard core fans (the people who own everything there is to own) disappointment reins.

Helter Skelter said...

And in response to Debjorgo, I live and breath the Fab4. My comment about quality of material was a comment on quality of performance - something which has affected releases in the past (Let It Be film for example). The world's biggest band did have off days.

Internotional Tomes said...

Just been looking at what's on 'Work In Progress' as well as the cover and I'd venture that Rock Melon will be in trouble one way or t'other very soon.

The recordings included on this which were not on Beatles Bootleg Recordings 1963 are certainly out of copyright BUT they are also certainly 'stolen goods'. The copyright holder would have to show that Rock Melon knew this when they released in order to prosecute them FOR the release or would now have to inform them in order to STOP the release.

However, the release also makes use of Beatle likenesses on the cover which *may* be trademarks in certain territories and although a photograph can be licensed for use, there's the potential, certainly for Yoko Ono's lawyers, to act upon it.

I think this comes down to instructions. As far as I know, none of the Apple principals employ the likes of Websheriff (of Prince fame) to monitor these things proactively and generically.

So an instruction would need to be received by a lawyer to act upon this and other releases a lot of releases which currently pass as perfectly legitimate but could be challenged for their use of The Beatles name or likeness.

Given the sheer degree of falling record sales, it is likely that some things which have up to now remained unchallenged will increasingly be liable to action because their sales may actually be comparable with official product!

I'd venture that 2015 will be the year when this begins to happen.

heyfatalbert said...

Internotional Tomes:

You are wrong about your assumption that American copyrights must be registered in order to get copyright protection. Google "faq copyright.gov" and you will see this paragraph on the Copyright Office's FAQ page:

"Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section Copyright Registration."

And I highly doubt it's the lawsuit part instigating these kinds of releases--all these kinds of recordings have enough of a paper trail to prove when they were recorded, so the copyright filing just needs to happen prior to any lawsuit, be it now or a decade from now when bringing the lawsuit. The copyright will still have begun "from the moment the work [was] created".

So whatever the reason Dylan, the Beach Boys, etc., have come out with their releases, it isn't because of U.S. copyright law which is much clearer (and longer) on term of copyright. It's all to do with the EU law.

heyfatalbert said...

I'd also add that I think the reason the Beatles didn't release anything this year is threefold:

1) They are unconcerned with anything that currently remains "in the vault", even if the copyright lapses in the EU.

2) They have determined (probably rightly) that anything broadcast over the airwaves is still under copyright in the EU. And this covers remaining BBC recordings, and pretty much all good-sounding live recordings, which were either broadcast on TV or local radio in one country or another (U.S., Australia, Netherlands, etc.) at the time.

3) Excluding the above, there isn't enough bootleg material from 1964 they need to copyright to warrant another set. I mean, if the BBC and live recordings are off the table, what else is there from 1964 that hasn't had an official release? The I Feel Fine/She's A Woman sessions, some further takes of AHDN (the "best" of which already appeared on Anthology), and one take of What You're Doing? Hardly enough to warrant a new release. Grey market labels could undercut them on that stuff, sure, but it's not like that stuff would ever make up more than 3-4 tracks on a new "Anthology" release or anything, so Apple/UMG are taking their chances.

I think the bigger test will come in 2017-18 when they get to Strawberry Field Forever sessions, Sgt. Pepper four-tracks, and the Esher demos that all circulate. Especially that last one, I think, they will be very interested in releasing themselves.

But 1964, 65, and 66 stuff is much less commercially releasable, minus the (probably still-copyrighted) live material.

Helter Skelter said...

You forgot:
'Can't Buy Me Love'
and
'I'm A Loser'
There are probably 2CDs of material out there.
But I would guess only 2 takes of each song worth releasing (as per last year's 1963 set).

Helter Skelter said...

Just this year a bootleg contained a 7 minute take of 'She's A Woman' in excellent quality, but most of those sessions are not good. That said, most fans would love to hear some of this stuff direct from the masters in stereo - but the dream is over for this year.

heyfatalbert said...

Sorry for the multiple posts, but to further clarify why I don't think there was a release this year:

The EU copyright law is somewhat ambiguous on material broadcast over the airwaves. One interpretation is that it ends after 50 years, and another interpretation is that it won't end for quite some time. I think the Beatles' lawyers are now working under the latter assumption.

In any case, another thing to be aware of is that the Beatles/Apple/UMG are not the copyright holder on much of their live output. Aside from the Hollywood Bowl tapes, they own little professionally-recorded material outright.

Apple/UMG would have to negotiate with the rights-holders of the individual concerts to get them released. Things like the Indianapolis 1964 concert, or the Adelaide 1964 concert are owned by outside entities, so the Beatles can't willy-nilly add them to a 1964 bootleg collection.

I'd assume they are going to negotiate that sort of release anyway when the "Beatles Live Project" is compiled, so there's no point in undercutting their own upcoming live release a year or two before it hits the market.

And if the copyright on these types of recordings is, indeed, expiring today in the EU, this is actually advantageous to the Beatles. If they're PD starting next year, then Apple/UMG wouldn't need to secure rights for an upcoming "Beatles Live Project" release--though, I assume they'd still try to negotiate access to the master tapes for remastering purposes.

In other words, things like Vancouver 1964, Philadelphia 1964, or Denmark 1964 are presumably owned by local radio and TV stations, or whoever owns those radio and TV stations today. If they're going to become PD, Apple/UMG have no right to release them--only the current owners do. But Apple/UMG could negotiate a deal to release them under the Apple/UMG banner, and they probably are looking to do that. But for "The Beatles Live Project" next year, and not for "Bootleg Recordings 1964".

heyfatalbert said...

Helter Skelter, you're right. I did forget I'm A Loser and Can't Buy Me Love.

And as you said, if they were going to follow the pattern set by the 1963 set, there's only one complete unreleased take of CBML, and 2 or 3 for I'm A Loser.

They certainly could have done it, but if they'd followed last year's pattern of only releasing complete takes, they would have only been able to release a (short) single disc. Plus any BBC recordings, if they'd bothered negotiating with the BBC for their release. Oh, and about 10 minutes worth of demos.

When it comes down to it, though, I think the only things up for consideration for an actual new "Anthology" would have been the long take of She's A Woman, an early take of I Feel Fine, the original version of What You're Doing, and maybe one of the early takes of I'm A Loser. Outtakes of CBML and AHDN already appeared on "Anthology 1" and the other unreleased outtakes of those songs aren't different enough to warrant inclusion on a new Anthology-type compilation. So they let maybe 10-15 minutes of future releasable material become PD. Oh well. That hasn't stopped them from re-releasing Love Me Do or PS I Love You since they became PD.

However, there are some things still in the vault that might be interesting--there's a version of I Should Have Known Better with a different intro and outro, there's the first re-make of And I Love Her, and there's a version of Any Time At All with a different middle eight, to name but a few. So they really could have released something special.

But last year's release indicates that they're still unwilling to release anything that hasn't been heard in some form before on bootleg. I'm guessing that kind of stuff will either always remain in the vault, or will be included on some possible future official release, regardless of its copyright status. They do still own the masters and copyright status has no effect on that, nor on their ability to market them or to get involvement from Paul or Ringo.

It will be interesting to see what happens in the next few years. But I'm not holding my breath for anything to come out before the 20+ unreleased songs from the Esher demos, aside from an accompanying soundtrack to "The Beatles Live Project".

Internotional Tomes said...

Heyfatalbert

I guess I could have clarified that the part of the quote you've given

"You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work"

is what I mean when I said copyright registration is 'mandatory' in the US and some other territories.

ie. They copy right doesn't exist for legal purposes unless registered.
This has been criticised many times for the fact that it does mean that paying to register IS effectively mandatory although the universal classic means of posting a copy of a work to yourself and leaving it unopened has worked well for many in the event of their copyright becoming contested.

In other territories, this latter method is always a good idea too as although copyright exists for legal purposes upon the creation of a work, proof of its existence at a certain date is always a wise precaution.

But in the case of The Beatles where every recording's creation has been documented/logged at EMI, there is no need to register in any way, including by release!

Internotional Tomes said...

I note also that there have been cases in the US where this soft-requirement to register has become crucial, including instances where claimant registered a copyright previously understood as that of another (but not registered by them) in order to generate a scheduled court date for their claim.
Although few of these cases have ever succeeded, the embarassment of facing up to such a claim in the media because of that ability of another to register YOUR copyright when you didn't yourself, is another reason why it's effectively 'mandatory' to register!

chr1570pher said...

Sorry if this has been explained, but I am confused about the 1962 songs going into public domain. Was their copyright not renewed by subsequent re-releases of the singles in various combinations, or the Anthology, or 2009 remaster? If not, how come?

heyfatalbert said...

@chr1570pher:

The reason the 1962 stuff became public domain is that it fell under the "original" EU copyright law.

What happened was that pretty much all recordings had a 50-year copyright term in the EU up until the end of 2012. At the behest of lobbyists, EU lawmakers passed a new copyright law which extended the term to 70 years, but the law didn't take effect until 2013--too late to save the copyright of recordings made in 1962 and before.

Thus, the public domain status of the 1962 recordings.

The other part of it is that the new law says that stuff is copyrighted for 70 years, but *only* if it's released officially within 50 years of being recorded. I guess the point there was to stop, say, the Beatles from keeping everything in their vault and then a hundred years from now, Paul McCartney's great-great-granddaughter says, "Hold on! We're releasing this now" and seeing something ridiculous happen, like a recording being still in copyright two hundred years after being recorded.

And because of that, you're now seeing the move by Dylan, the Beach Boys, and others to copyright-protect much of their post-1962 unreleased material.

That's the simple way of putting it, anyway. There's a bit more nuance to some of the story, but that gives you the gist.

An addendum to all that is: EU lawmakers could go back and retroactively restore copyright to pre-1963 recordings, but there was enough of an opposition by a bloc of EU against the copyright extension that it seems unlikely.

chr1570pher said...

Ok,
So under the old law, the re-releases and remasters didn't count as an official renewal of the copyright?