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BBC not being to eager to answer!

Posted: Fri Jun 25, 2021 4:23 pm
by alanB
I've contacted the BBC and they're not too happy to give me a clear answer so wondered if anyone could give me a definitive?

As far as I can tell under current UK copyright legislation (Copyright, Designs and Patents Act 1988) a 'broadcast' falls out of copyright after fifty years.

So am I correct in thinking that spoken word content from a BBC radio broadcast, whether that might be a John Peel record intro, the first words spoken on Radio 1 or an interview or news piece with a well known musician would be copyright free and available for commercial use without the need for approval/license by the BBC?

I understand musical content is more complicated, but the focus of my question is specifically and only about spoken word content.

Any help appreciated!

Re: BBC not being to eager to answer!

Posted: Fri Jun 25, 2021 8:10 pm
by AndyJ
Hi Ala,

I can understand why the BBC shied away from answering your question. Buckle in, it's going to be a long and bumpy ride (or just jump to the last paragraph!).

We need to go back more than seventy years to see why broadcast copyright was seen as necessary. Back in the early days of television (the 1940s and early 1950s) most broadcasts were live and because the technology to record them either didn't exist (the early days) or was very expensive (mid 1950s), very little of the output was recorded. Similarly with radio at that time, it was not thought necessary to record a great deal of the radio output, although of course pre-recorded music, plays and interviews etc were aired on the radio. Since much of what was broadcast on TV, even if it was speech or music, was not fixed in a permanent medium, it was not protected by the copyright law which existed at the time. The 1911 Copyright Act didn't recognise recorded sound or film as something which was subject to copyright. This situation was of great concern to the then monopoly broadcaster in the UK - the BBC - as it had no legal way to prevent its broadcasts from being pirated*. In fact all the major national broadcasters across the world were similarly alarmed by the situation and this led to an UNESCO conference in Paris in 1952 (the General Conference of the United Nations Educational, Scientific and Cultural Organisation, Paris, 12 November-11 December, 1952) to address the issue. This conference eventually led to the 1961 Rome Convention for the protection of, among other things, broadcasts. However the UK didn't wait for this international treaty and instead used the 1956 Copyright Act to introduce the new copyright for television and sound (ie radio) broadcasts (section 14). Even in 1956, video taping was still a rarity due to technical issues and the expense, and most pre-recorded items were on film which had to be projected onto a special form of TV camera called a tele-cine, in order for it to be broadcast.

But the same 1956 Copyright Act also introduced three other new 'rights' which largely resolved the issue that the broadcast right was intended to address. These were copyright for sound recordings and films and something which later became known as performers' rights. These 3 new rights, together with the existing protection for literary, musical and dramatic works effectively protected 99% of what was actually being broadcast on TV and the radio at the time. The only real exception would be things like live TV sports coverage (although the commentary would qualify as a form of literary work as long as it was being recorded in some medium, eg on tape) and general live outside broadcasts which were not deemed worth recording on video tape (but with the same caveat about any scripted or recorded commentary).

There were several further developments when the 1988 Copyright Designs and Patents Act came along, together with more changes introduced by the EU in the early 2000s, but as these don't really affect the question you asked, I won't go into the details here.

The outcome of all this is that, from 1 June 1957 (ie when the 1956 Copyright Act came into force) most content on TV (and virtually all radio), was protected either as a film (this also included the later technology of video recording) or a sound recording, as well as the more traditional forms of copyright which covered programme content in the form of literary works (ie just about all spoken utterings, provided they were recorded in some manner either on tape or on paper in script form, or news bulletins etc), musical compositions or dramatic works which would almost always have been written down before being performed and so met the fixation criterion. The extra protection for the overall broadcast was thus really just a duplication. The main advantage for the broadcasters was that while they very often didn't own the copyright in some of the literary, musical and dramatic works, along with feature films and pre-recorded programs made by other (usually American) TV companies which they broadcast, they did own the entirety of their broadcast right so it was easier for them to go after any infringers, as they did not need to rely on third party copyright owners to bring actions for infringement. It worth digressing here for a moment to reflect on the irony that the only reason you are able to raise this issue is because recordings of these events were made at the time, meaning that they immediately became subject to copyright as sound recordings which trumps broadcast copyright in terms of duration.

Coming now to your specific examples, you can probably see that the cessation of the broadcast right does not mean that the content has necessarily entered the public domain if it is covered by another, stronger, underlying copyright. John Peel's words may or may not have been scripted (so qualifying as a literary work with a copyright duration of the lifetime of the author plus 70 years after his death), but even assuming they weren't, the fact that his programmes were (pre?) recorded means that they are now** protected for 70 years from the date the recordings were first broadcast. Much the same would apply to the opening words on Radio One or interviews with prominent people or news items etc. The difference here is that while the copyright in John Peel's words (whether scripted or just recorded at the time of transmission) belongs to the BBC because they employed him (see section 11(2) of the CDPA), in the case of a musician who was being interviewed, the copyright would belong to the interviewee, not the BBC.

* Whether this was an actual problem or not seems doubtful as the only way to record television programs at that time was by using a cine camera pointed at a TV. This would have led to all sorts of problem over synchronising the scanning of a cathode ray tube receiver to a camera operating at 24fps, and the picture quality would probably have been atrocious.

** The new 20 year extension to the sound recording copyright term applies to any recording which was still in its original 50 year period of protection as at 1 November 2013. (see The Copyright and Duration of Rights in Performances Regulations 2013.)

Re: BBC not being to eager to answer!

Posted: Sat Jun 26, 2021 1:13 pm
by alanB
Hi Andy,
thanks very much indeed for taking the time to write such a detailed reply, it's much appreciated.

Points such as reading aloud from a script being classified as a literary work and the resultant copyright issues hadn't occurred to me.

However, I do still have a few aspects I'm struggling with if you fancy bearing with me...

I fully get the concept of 'sound recordings' but your reply does make me wonder why 'broadcasts' would be differentiated in the legislation, to the degree of having a shorter copyright period, yet in the main seem to be covered by "another, stronger, underlying copyright" as you succinctly put it?

For instance, you mention live sports coverage commentary qualifying as a form of literary work as long as it was being recorded in some medium, eg on tape. This is probably a clear example of the issue in my mind regarding the relationship between 'sound recordings' and 'broadcast' differences that I'm interested in.

As an example of where I'm still confused, a John Peel show taped in advance at his home and later broadcast by the BBC would obviously have sound recording rights. However, surely the majority of BBC Radio 1 broadcasts in the Sixties would have been 'live to air' and not necessarily recorded as being broadcast?

Even if a live to air broadcast was concurrently recorded (the result being a 'sound recording') is the broadcast itself a separate entity to the 'sound recording'?

ie if a third party made thier own sound recording of that broadcast, what is its standing in terms of copyright?

Would the bbc 'official' recording have any more legitimacy in terms of copyright that a recording made of the broadcast by a listener? Would a listener-made recording of an unscripted broadcast fall under the 50 year rule?

A similar example which comes to mind would be a 'phone-in' interview broadcast live on air.

Apologies if these points have been answered in your previous reply and I just haven't understood it properly, but the gist of it for me really does seem to revolve around why the 50 year term for broadcast exists at all.

Finally, are all pre-62 sound recordings protected for only 50 years and so now PD (not including publishing copyrights)?

If so, how does this impact on the broadcast/sound recording relationship in terms of BBC radio broadcasts before that time? Does the 'literary work' copyright come into effect here again for unscripted on-air spoken word broadcast content, live news reports etc?

As a side note, it strikes me that the 1962 threshold invoked in the 2013 legislation errily coincides with the start of The Beatles recorded catalogue (aprt from their very first single)!

Re: BBC not being to eager to answer!

Posted: Sat Jun 26, 2021 3:51 pm
by AndyJ
Hi Alan,

I'm not surprised that you have follow-up questions. My aim with the original reply was to try and keep it as brief as possible while still covering the basics; that meant leaving out a lot of detail.

To the legal purists the four categories of work which copyright sought to protect were literary, musical, artistic and dramatic works. Although in Britain the origins of copyright lay in protecting printers and publishers, in continental Europe protecting the honour of authors or composers of these works, not to mention their economic rights, lay at the heart of their version of copyright (known as droit d'auteur). This protection, it was felt, was necessary not just throughout an author's lifetime, but also after their death so that their heirs could benefit from their literary etc achievements. Copyright was seen as not only a source of income but also a pension plan. Later, as we have seen, the so-called related rights came into being to protect sound recordings, films, and broadcasts (and later still, software and databases). These related rights were always considered to be the assets of corporate entities which clearly did not need pension plans and were probably more reliant on short term profits. This was why the copyright terms for these related rights were a fixed duration (originally 50 years from creation or publication), rather than based on the life of an author (cf the standard duration for a patent is 20 years). As you know, the term for films and sound recordings was later extended, due to pressure from the major film studios and record labels, but there was never the same lobbying to get an extention to the broadcasting right, probably because it was recognised that it duplicated other rights and was rarely infringed anyway. These days films have gone even further and the copyright term is now based on the lifetimes +70 years for the film's director and producer.

You are right that if a radio show was broadcast live and there was no recording made of the transmission, and assuming that the words spoken by the DJ or presenter were unscripted, then most probably the broadcast right would have been the only protection available for the speech. The difficulty comes in knowing what was and wasn't taped or scripted at the time, and only the broadcaster is likely to know for sure. And yes, the sound recording and broadcast are separate entities, legally speaking.

You mention the case where a broadcast is recorded off air by a third party. In theory this would amount to fixation of the spoken words, so they would have the protection of a sound recording* and as a literary work, although the sound recording right would, theoretically, belong to the listener who made the recording not the broadcaster. However the listener would have made an unauthorised recording (this requires the prior permission of the performer) so he or she wouldn't own a copyright in the sound recording; and if they tried to re-broadcast or otherwise publish their recording before the 50 year period was up, they would infringe the broadcasting right of the BBC, notwithstanding the fact that it was only the existence of their recording which had given rise to a literary copyright in the words spoken. There is a certain amount of caselaw surrounding bootleg recordings of live music gigs, but I am not aware of any cases involving third party recording of broadcasts in this context. Basically recording off air for your own personal use was tolerated simply because it was almost impossible to detect it. Indeed when home video recording became a thing the law was changed (in 1988) to specifically allow TV and radio programmes to be recorded for personal use so that they could be viewed or listened to at a later time. This change in the legislation didn't have retro-active effect on recordings made before the 1988 Act, which leaves any private recordings of the type you mention from the 1960s and 1970s in an uncertain position legally.

As you probably know, when it comes to TV programmes from a similar period, many were recorded on video tape for transmission and the tapes were then wiped and re-used, such was the cost of video tape at the time. Thus today any private recordings of these 'lost' programmes (some early Dr Who episodes come to mind) are treated almost like archaelogical finds once they come to light, and the owners are certainly not sued for infringement.

And turning to your last question, I think it highly unlikely that the underlying sound within the recording would not itself protected in another way (scripted speech as a literary work or dramatic work, or recorded music) because it was the sound recording itself which was the means by which these underlying works were fixed. Obviously, here we are mainly talking about speech, and unless for some reason this speech was ineligible for protection as a literary work, once it had been fixed, the literary copyright would always be there, even if the physical tape which held the recording was later wiped or became lost. The kind of thing which might not qualify would be something so trivial or unoriginal that, if it was written down, it wouldn't qualify for literary copyright, or if it was something like a Shakespeare speech which due to its age was no longer** protected by copyright. Obviously neither of these apply in the case of the words of John Peel.

As for the coincidence of the date of the cutoff period for sound recordings and the rise of the Beatles, the date of 1 November 2013 came from Article 1 of the EU Directive 2011/77 which amended the earlier copyright term Directive. So you would have to consider whether the EU Commission and European Parliament were somehow in league with Apple Records or not!

* there is a parallel here with a copyright case back in 1900 which involved a speech made by a famous politician of the day. He was not speaking from a script and so, but for the fact that two journalists from the Times newspaper were recording his words in shorthand, the speech would not have been protected by copyright (nor would it have been preserved for future generations to read).

**Technically speaking, Shakespeare's works were never protected by copyright because they were all written long before the idea of 'copyright' had been translated into law. Theoretically if a new unpublished sonnet by Shakespeare was discovered today it might qualify for copyright until 2039 due to some historical quirks in the way the law has developed. However I don't think anyone, including a putative heir of Shakespeare who would nominally be the copyright owner, would actually try to enforce such a restriction.