Recently, Legacy recordings released about 100 copies of a four CD box set of rare Bob Dylan demos in the European Union. This move puzzled many fans until it came to light that Legacy did this to preserve the copyright in the sound recordings and to keep the songs from falling into the public domain. Staff Editor John Gentile walks us through the law and motivations for Legacy's actions.
As I write this, on eBay, four CD-Rs are selling for over $450 each. CD-Rs! Not even factory pressed CDs! On top of that, the CD-Rs don't even come with a booklet! They only come with a flimsy photocopy that merely lists the song titles. In the age of instant downloading, its baffling that such an emphasis would be put on physical plastic.
Of course, it bears mentioning that the CD-Rs in question are as of yet unreleased rare takes and demos by Bob Dylan and there were only about 100 copies pressed. So, the question is, with Bob Dylan's music as profitable as it is, why would the record company release only 100 copies of rare music, exclusively in Europe?
The answer is that with this hyper-limited release, Legacy records, the owner of the rights associated with this work, has released the collection not to return a profit, but to extend the term of the works' copyright.
A copyright is the bundle of rights associated with a work, such as a song composition or sound recording. (A song composition is the song written out while the sound recording is the actual audio version of a song). The rights granted to copyright holders varies per country, but in most countries, the copyright holder can control reproduction, distribution, and performance of the work, among other things.
The European Union has a uniform copyright code implemented into each country's national code of law, which consists of many separate agreements developed over the last two decades, instead of one for each country. Currently, the European Union has two rules which cover the term of protection for sound recordings. European law makes a distinction between Song Composition and Sound Recordings. In Europe, the term of protection for a sound recording is the life of the author of the song recording plus seventy years. For example, the song composition for 'Baby Mother' which was written by Ari Up in 2005, who died in 2010, will no longer have copyright protection in 2080 (2010, year of author's death + 70 years = 2080). This is the same as the United States.
However, where the European Union and The United States diverge is the term of protection for sound recording itself. In the United States, the term of a sound recording, and all works, is life of the author plus seventy years. However, in the European Union, the term of protection for a sound recording is only fifty years from date of creation of the sound recording. So, under this rule, the sound recording (not the song composition) for "Baby Mama" would expire in 2055. (2005, year of distribution to public + 50 = 2055).
But, the European Union adds another wrinkle to the equation. In the 2000's, UK pop icon Cliff Richard (and many other parties) campaigned for a copyright extension for performers who performed on a sound recording. Thus, in 2011, the European Union passed "Sir Cliff's Law". Under this modification of the rights granted to holders of the sound recording copyright, the term of protection for a sound recording is seventy years, so long as the work was first published (made available to the public through distribution) within the initial 50 year copyright period. Thus, because Ari Up first published "Baby Mama" in 2005, the term of protection for the sound recording would not expire in 2055, but rather, in 2075 (2005, year of distribution to public + 70 = 2075).
With this information, Legacy's bizarre release of only 100 copies of rare Bob Dylan tunes now makes much more sense. The sound recordings were made in 1962 and 1963. The time span from 1962 to 2012 is exactly fifty years, the normal term for copyright protection for sound recordings. But, because Legacy published the previously unpublished sound recordings in 2012, the sound recordings were published within the very last minute of their initial 50 year span of protection, Thus, under Sir Cliff's law, the distribution of these 100 copies of these songs buys Legacy 20 more years of protection of those sound recordings. Therefore, these rare Bob Dylan recordings will fall into public domain in the EU in 2032 and 2033 (Of course, in the USA, the sound recordings will be protect for seventy years after Dylan's death, which will hopefully be around 5034, or so).
Several publications have referred to this action by Legacy as a 'loophole' I disagree with this assessment. Generally, a 'loophole' is a maneuver whereby someone complies with a part of the law that is the result of poor drafting, in order to gain an unintended benefit. However, here, the EU law is clear (well, sort of). 'If you publish a sound recording within 50 years of its initial creation, you get 70 years of protection.' This is exactly what Legacy did. I fail to see how Legacy waiting until the end of the deadline to assert their rights is the usage of a loophole. Rather, it's merely Legacy being a little sloppy with their administrative duties.
Further, it's important to remember, that although a "big, bad, evil record company" is benefitting from the term extension, this has nothing to do with copyright protection. The only reason that Legacy is able to retain rights to the sound recording is because Dylan contracted with Legacy (or its predecessors) to give Legacy the rights to the sound recordings. Had Dylan not contracted away his rights in the sound recordings, it would be he who was extending his rights in these recordings for an additional 20 years. Were that the case, I doubt so many publications would criticize Dylan for protecting his own work. To criticize Legacy for asserting its rights is not an issue with copyright law, but rather, an issue of person-to-business contracting and licensing.
John Gentile is an intellectual property attorney. He enjoys circling the letter C, putting the letters TM next to logos, and that one Chumbawamba record where they crucify Cliff Richard.