Vinyl to CD - Industry gets heavy :(

I share this as a warning to others. Seems like the recording industry is ready to get heavy with everyone right now...

I had a visit yesterday afternoon from two members of the local trading standards office (effectively the UK's business police) and a representative of the BPI (British Phonographic Industry - UK's RIAA). The message was pretty much to the point: stop all restoration work on any commercially released product that's less than 50 years old - in other words just about every LP and single ever released.

Turns out they did a covert 'sting' a couple of months back to build a case against me. If they'd chosen to pursue the case I'd have lost - no doubt apparently. This means up to 10 years in prison, unlimited fines, confiscation of all equipment. The only way around this is to receive permission from the copyright holder (i.e. record company) for every record, something these guys said would be almost impossible to get.

Naturally I promised to stop this immediately - well you would, wouldn't you? So after a quick look around the premises ("You're not using that DVD writer to copy films are you?...") they left. But I know they're watching very closely, and I know they could mount another sting at any time, so I guess it's time to rewrite the business plan.

So I write this as a warning - cos it could be you next. Be very careful.

They asked a lower tax rate here for CD's (currently 21%) to 6%
and their reason for this cause they expect that it helps to lower the amound of illegal copies.

Well, whatever they try... wrong solutions.

I should add that scanning covers is also illegal - not only are the record company logos copyrighted trademarks, but also in many cases the names of the bands as well. In other words you're breaking the law by printing "The Rolling Stones" on anything that doesn't have their express permission, including your CD.

These are laws which don't come under the 50 year clause, so that lovingly scanned 78 rpm label is almost certainly something that could land you in trouble should someone decide to make a complaint or launch an enquiry...

Sorry to hear that Andrew!

This is very ridiculous I think. I can understand as a musician myself that it's not funny when people just copy your music. But when it comes to these covers and logo's. Sheesh, the artist that made the cover for example got alot of money for doing that. It's not like he's getting royalties for every cd sold. For the musicians it is...so I think this makes a big difference. Especially since cover artwork isn't something that can be bought somwehere else most of the times. So I don't see any harm in people scanning that for example.

Andrew, I'm shocked.  

This has been a subject that's come up a few times (what's permissable and what isn't) and it's been said a few times "well, it's not as if they are going to come knocking on your door, is it?" when discussing these grey areas - now we know they might just do exactly that.

One wonders what the situation might be in other countries in Europe - Spain for instance, Graeme?  But I know you've said in the past that you've been cautious about copyright works.

But isn't there any 'fair dealing' clause to invoke?  Perhaps not without expensive court proceedings - sadly, justice can sometimes only be obtained at a price.

I don't think they can get away with that here in the US.  We have that "fair use" clause.  I'm not worried, as long as it's for my personal use.

I really don't think the companies want to take this to the courts.  If they try, they are going to lose!

But isn't there any 'fair dealing' clause to invoke?  Perhaps not without expensive court proceedings - sadly, justice can sometimes only be obtained at a price.

I explored all the arguments and ideas we've batted around here before now with both the Trading Standards inspectors and the BPI woman and was told in no uncertain terms that there was no loophole. They suggested that if I wanted to try and push the point the only people likely to gain from this would be the lawyers.

I remember someone in the US suggesting they charged for a blank CD and did the copying and restoration for free - hence were not gaining from this. Seems the BPI's come across someone over here applying this logic and is currently pursuing them in the clear expectation of winning their case.

Personally, although it all came as a shock, I'm hoping it's not going to make too much of a dent in my business. The vinyl to CD aspect has been a decreasing proportion of my business for a while now. Even so it's not something I'd like to take the risk of fighting, and given their undercover work I'd rather not carry on quietly operating this on the side either...

I don't think they can get away with that here in the US.  We have that "fair use" clause.  I'm not worried, as long as it's for my personal use.

This seems to be fine - as long as you're copying your own records for your own personal use they've got no problem with it. (Well they probably have, but couldn't get it through a court of law!)

It's when you're carrying out this service for a 3rd party - regardless, it appears, whether you're charging for it or not - that they're set against.

That's scary stuff man!    I included the following statement in my terms of trade, to cover such circumstances...

It is the responsibility of the client to ensure that neither material submitted to, nor requested from Moonburnt Music is in violation of copyright law. Moonburnt Music accepts no liability for copyright infringement due to a client’s failure to advise of copyright status.

But this hasn't been put to the test and maybe making copyright the client's responsibility wouldn't stand up legally.

I suspect that as you're the one carrying out the copying you're help responsible for ensuring to the best of your abilities that you're not acting illegally.

As an analogy, if you tell me that you've been granted special permission for me to drive at 120 mph and I get caught its not going to be you that gets prosecuted and unless you've got the proof of permission to get me off the hook I'll be going down...

Sorry to hear about that Andrew...

Even if you kept records documenting the transfer to digital, copy to CD, destruction of the HD copy, and sealed the album in a plastic cover so only the CD could be played!

Do you have a link to that law or statute?

kylen

One wonders what the situation might be in other countries in Europe - Spain for instance, Graeme?  But I know you've said in the past that you've been cautious about copyright works.

But isn't there any 'fair dealing' clause to invoke?  Perhaps not without expensive court proceedings - sadly, justice can sometimes only be obtained at a price.

Dealing with the 'fair use/dealing issue first, it's difficult for people like us to invoke that, since the material is being worked on, for profit (ours) on behalf of a third-party.  We assume the third-party owns the original we are being asked to work on, but that's not always the case.  

For example, I do a lot of work for one client who gives me either DATs or CDs of material where he has done the original transfer to digital (he does it well, so no complaints from me there).  However, I strongly suspect not all of the material is his - maybe borrowed from a friend, or something like that.  However, I'm not going to turn him away because I'm not about to embarras him by asking him to prove his ownership of the material.

I have another client - who turns in cassette copies which are so bad they can only be several generations away from the original - who probably hasn't got the original discs.  In view of the material concerned, I doubt if anyone has, other than a few archives and libraries.  Again, I could press the point, but it would cost me a good client.

The law in Spain is pretty much the same as everywhere else - you can make a copy of something you own, for your own use.  It's gets a little cloudy when you ask someone else to do a copy for you and it gets even cloudier when the material in question is no longer commercially available.

I try to cover myself in two ways.  

1 - Each CD we produce has the clients name on the label.  Also on the label is a notice which says the disc is for personal use only and not for sale.  In addition, there is another notice which says the person, whose name is on the label, is responsible for any copyright issues that might arise.

2 - When I get commercially recorded material in, I do my very best to find out if it has been re-released on CD.  It's surprising the number of times this has happened and just how easy it is to find a copy of these commercial discs.

If I do find one, then I tell the client to go and buy it - it saves me unnecessary work and him unneccessary expense.  Furthermore, it's a good PR exercise and they tell their friends.  

On a few occasions, I have even purchased discs on the clients behalf, because he had no internet access (or, more often, had no idea how to look for what he wanted) or because it was only available from somewhere where they wouldn't have understood him.


All of this is well and good, but it still leaves a lot of material which is less than 50 years old and which is not commercially available.  Until I get the knock on the door, I'm prepared to carry on regardless.  I take the view that I do as much as could be expected to ensure that I'm not taking money out of the record companies pockets.  If it came to it - and I sincerely hope it never will - I'd be prepared to argue it in court.

After emailing Andrew, and getting the reply I was sort-of expecting, I did a little checking. As far as trying to get anybody else to accept the responsibility is concerned, you can't do this, because in English law, ignorance is not a privilige - in other words, you can't absolve yourself from the responsibility. 'Upon your head be it' wouldn't stand up in court at all.

The 'fair use' clause effectively doesn't work. And the use of extracts for private research purposes is on a per-track basis, and I think it has been established that 10% of a track might be a 'fair' figure, so that's no use either - and you are supposed to do it yourself, as Andrew has pointed out.

The one thing that I do wonder - and it's only really a theoretical question - is whether the BPI actually contacted the copyright owner in  Andrew's case. Whilst they would obviously have to condone the BPI's action publically, I wonder how much they would actually be concerned about otherwise not re-released material being handled sensibly in this way?

The whole situation is really rather unsatisfactory, and the BPI's position in this has always been rather dubious anyway - if they organise the prosecution of minor 'offenders' in the manner that Andrew has described the same way that the industry organises royalty payments, it's going to be rather unfair, to say the least.

I've never offered re-archiving of records as a service, but I do get requests about 78s from time to time. I hope that the request that turned up the other day doesn't get me into any trouble - I don't think it will because of the nature of the job, but I am going to double-check quite a few things about this, because this one might turn out to be a little bit special. In fact, if this lot of 78s is what I think they are, the record company concerned might be rather interested anyway! But I won't know about any of this until the middle of August.

Oh, by the way...when re-reading my post I noticed that it didn't come out like I wanted to

I also want to add that I think that restauration of existing is ok...just for the record

The one thing that I do wonder - and it's only really a theoretical question - is whether the BPI actually contacted the copyright owner in  Andrew's case. Whilst they would obviously have to condone the BPI's action publically, I wonder how much they would actually be concerned about otherwise not re-released material being handled sensibly in this way?

What they did was, having got me to make transfers of two LPs, one released by EMI, the other by Sony, and having obtained independent attestation that what I'd provided was what was contained on the CDs, they approached EMI and Sony with the discs and asked them if I had permission to make these copies, and whether they objected to this.

The answers were no and yes respectively. Basically the record company philosophy is that if someone else can make money out of their product then theoretically they could too - and they have the rights so the other party shouldn't be making money. They don't make distinctions based on the scale of the operation. It doesn't matter to them whether I'm making £1 or £100,000.

The thing is any of us who're advertising these kinds of services is liable to investigation at some point - especially if someone decides for whatever reason to make a complaint to the official body. I'll never know who complained about me. I'll never know whether a phone call or e-mail in the future is genuine or another undercover investigation - I certainly expect at some point that they'll do it again to see whether I'm sticking to what I said.

I don't want to come over all paranoid, but they had no obligation to admit to me all of their evidence, and I can't ever be sure they've not gathered more. They had enough to go on, and let me off with a stern warning. Next time would be different, but I can't even have 100% confidence of the geniune nature of some of my existing clients. Nobody's going to declare they're working undercover...