A bit of an off-topic post today. In the spirit of the holiday season, I am going to share with you a couple recordings of classical music, for your enjoyment. But since I can’t help myself, I will also explain briefly the reason for me being able to share the recording, namely lapsed copyright and neighboring rights.

But first things first. Please go and enjoy Kathleen Ferrier’s marvelous 1952 performance of Mahler’s Three Rückert Songs [mp3, all three songs]: Ich bin der Welt abhanden gekommen [mp3], Ich atmet’ einen linden Duft [mp3], and Um Mitternacht [mp3]. Bruno Walter conducts the Wiener Philharmonic. (The recording is mono, but I recorded it in stereo.)

Remember the Composers

As you probably know, authors receive an exclusive copyright to their works; in most countries, including the EU Member States and the United States, for 70 years after their life. These rights are based on the WTO GATT-TRIPs Agreement of 1994, itself largely incorporating by reference the Berne Convention (1971 Paris Act), and the WIPO Copyright Treaty (WCT) of 1996. The later was implemented into EU Member States law by way of the 2001 EU Copyright Directive (EUCD, 2001/29/EC), and is especially relevant to today’s chance to download the work, as it grants an additional exclusive right of communication to the public, including “the making available to the public of […] works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Since Gustav Mahler lived from 1860 to 1911, it is more than 70 years since his death, and his works are today out of copyright. (Actually, they went out of copyright in 1961 (50 years after 1911) as the 70 year term was only retroactively introduced in the EU with a 1993 Directive. However, for today’s distribution of the songs, this is not relevant.)

Friedrich Rückert, the author of the poems used in the songs, lived from 1788 to 1866, so his poems are out of copyright as well.

So, as far as the author’s of the music and the lyrics are concerned, there are no limitations to making these songs available over the Internet.

And be Mindful of the Performers, their Neighbors

Performers, like Mrs. Ferrier, Herr Walter and the member’s of the Wiener Philharmonic, do not receive copyright protection, as their performance, as artful and inspired as it may be, does not qualify for copyright since it does not meet the required test of originality. Instead, they receive a slightly different set of exclusive rights (or in the absence of those, rights to remuneration) called neighboring rights. This on the basis of again GATT-TRIPs, in addition to the Rome Convention of 1961 and the Geneva Convention of 1971, and on the basis of the little brother to the WCT, the WIPO Phonograms and Performances Treaty (WPPT) of 1996. (The later not in force in the Netherlands, although by way of the European Community as a signatory and the EU Copyright Directive, most substantive provisions still apply; I’ll skip on the niceties of that here.)

For broadcasting, performers (and phonogram producers) have a right to remuneration. For “phonograms made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them” however performers (and again, phonogram producers) have a right to exclude such use. A podcast, on-demand streaming, or even the simple download link provided above all fall under the latter.

I recorded the songs from an old Decca record, that I inherited from my grandmother. There is no date mentioned on the recording, numbered LW 5123, but it was made on 20 May 1952. (Mrs. Ferrier was already seriously ailing at the time, and died of breast cancer the following year.) Several places offer it for sale.

So, since it is more than 50 years after the recording was made available (and the performance held, the term starts depending on the one or the other) there are no limitations to making the songs available for download over the Internet. But we are not yet good to go.

And of the Producers too

The producers of phonograms receive essentially the same kind of rights, and for the same duration, as the performers. This on the basis of the same instruments, and the Geneva Phonograms Convention of 1971, although the later does not cover distribution over the Internet.

So, the producer’s rights have also lapsed.

As there are no additional right in the recording, and having checked off all the rightsholders’ rights, we can now label this recording podsafe. Enjoy!

Final Thoughts

The duration of 50 years for neighboring rights is not uncontroversial, and some debate is taking place, most vocally in the United Kingdom, on whether the term should be extended to 70 years. See from the interest group Open Rights more on that here.

My collection of 50+ year old records is fairly limited and ripping them from vinyl takes some work. If I would be interested in making a podcast with historical recordings, would I be able to instead rip the recordings from re-releases on cd? Possibly, at least under copyright. Only the person taking the trouble and expense of the first fixation receives protection as a phonogram producer, and I am not sure that any remastering receives copyright protection, and the re-use might not infringe any database rights the new producer might have in the compilation. (The tort of unfair competition might put a stop to it though.)

The above reasoning is focused on works and recording for which all rights have lapsed. For works to which rights still attach, or for which all rights are not licensed under an alternative license such a Creative Commons however, you can usually get licenses from the corresponding collecting societies, under compulsory licensing schemes or other. To read a little about that, check Colette Vogele’s Podcasting Legal Guide.

If you would like to look for more out of copyright and out of performers’ rights works, try the European Archive. To load your podcast aggregator (iTunes?) with more recent performances, try WGBH, concerts from the Isabella Steward Gardner, and for opera Premiere Opera Podcast or my favorite Scream and Kill.

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[This is a post from Technology Law Culture: http://tlc.oosterbaan.net. Olivier Oosterbaan, ICT and media lawyer in Rotterdam, the Netherlands, maintains this blog. Some rights reserved.]

(Picture from: A part from the cover of the Decca record.)