A while back there was a question about what happens when the 'sound recording' manufacturer has gone out of business. Surely there's no one to pay, in that case?

Well, an initial search provides a little information, and for this it's important to start with considering the difference between a physical disc and a download.

In the case of a physical disc, there is a tangible item which can be recognised by anyone as having been genuinely produced by the original 'sound recording' company. This then falls under what's classed in the US (copyright law varies slightly between countries, and even between different applicable laws, statutes and rules within those countries.... Panadol, please)...

...what is termed in the US as 'first-sale doctrine' - meaning that if the item when first sold is purchased legally and with copyright, then this copyright is maintained when the item is re-sold. It's the rule under which secondhand bookshops work, so its well tested. For our purposes, this means that any old disc that you buy from anywhere, as long as it is an original, maintains its original copyright permission even though the company that originally made it is long out of business.

Now, when that comes to a computer file, if you can be sure that the file is genuinely from the original manufacturer when it was in business, or is a secondhand file that was originally purchased from that ill-fated company, then this would also apply to files. However, files available on websites for download would not be purchased by that website from the original manufacturer until sold to you, so it seems pretty clear that any track from a deceased company that's today available for download is illegal.

Now, what about buying a disc made by a now defunct company? Whilst buying and using the disc is fine under first-sale doctrine, you're not going to be able to format shift it for commercial use.

Permission from the copyright holder of the 'sound recording' needs to be obtained prior to format shifting for commercial (KJ) purposes, and when the company has gone out of business, that sound recording becomes an 'orphan work'. The fact that you try to find someone from whom to ask permission and pay does not entitle you to the rights required - and apparently there is a huge body of work in the world that has simply disappeared because these are orphan works where there's danger that the copyright owner will reappear and sue for damages.

So we can pretty safely say that if you come across computer files of tracks from companies that snuffed it before downloading was generally done and licenced, these will be either pirated tracks, or at the very least illegally format-shifted.

There is some good news, in that copyright does expire, and when these compositions end up in the 'public domain', and the sound recording company has long died, that there's no copyright to worry about at all. On the other hand, I don't think we need to worry ourselves about this anyway, as that time is at least 70 years after the death of the artist and the company.

Submitted by David on 26-04-2011

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