[Upd-discuss] MCPS and the fifty year term of recording copyrights

[David Basskin]

MCPS is absolutely correct, and the same would be true in all 
Anglo-American territories as well. The copyright in the musical work 
(i.e., the song) and the sound recording of the song are completely 
independent of one another. A song like "White Christmas" can be 
recorded literally hundreds of times; each recording is separately 
protected by its own copyright, but the song remains an independent 
entity. Its status as a protected work will endure as long as the local 
legislation may provide for musical works; the term of protection for 
sound recordings is likewise governed by its own relevant legislative terms.

Thus, if you want to reproduce a PD recording of a copyright-protected 
work in, say, a video production, you must obtain a license for the use 
of the song, but there are no licesning or royalty obligations 
associated with the use of the recording.

Likewise, the reproduction of a recording still protected by copyright 
made without the consent of its owner would infringe the copyright in 
the recording, but the owner of the copyright in musical work (or that 
owner's licensing agent) would have no stake in proceeding against such 
infringement as long as the user had obtained a license for the use of 
the song and paid the royalties. The publisher of the song might be 
concerned, but even if it wanted to, it couldn't independently pursue 
the infringement of the recording. Separate rights, separate owners, 
separate remedies.

David A. Basskin
CMRRA Ltd.
Toronto, Canada

James Davis wrote:

>Apologies for the cross posting, I was looking into this as a follow up to
>an e-mail on the creative-friends list and thought that it was worth
>posting it to upd-discuss too. Sorry for the slow reply for those of you
>who were waiting for this e-mail, it's taken a while to get hold of the
>correct person by e-mail.
>
>I've been in e-mail correspondance with the Mechanical-Copyright
>Protection Society (MCPS http://www.mcps.co.uk/) who collect and
>distribute royalties generated from the recording of music.
>
>It appears that as far as the MCPS is concerned, the recording copyright
>does not in anyway at affect the royalties that are to be payed to them.
>The recording copyright is typically retained by the label, and if it
>still holds you are required to gain permision (and pay, one presumes!)
>from them before using the recording.
>
>So if you wanted to release Elvis' "That's Alright" as a single in the UK
>you would have to pay the MCPS 6.5% or 8.5% (see below for details) of the
>retail price, a fraction of which I guess makes it's way back to Arthur
>Crudup's estate or whomever holds the copyright.
>
>So as far as the MCPS are concerned the people to lose out from recording
>copyrights expiring are musicians who don't write their own music and the
>record labels, songwriters will still earn money on these recordings.
>Whether that's legally correct or not I don't know.
>
>Below are e-mails between myself and MCPS, I've editted the thread for
>clarity.
>
>James
>
>---------- Forwarded message ----------
>Date: Tue, 8 Feb 2005 11:25:19 -0000
>From: MCPS Ap Info <ap.info@mcps.co.uk>
>To: James Davis <jamesd@jml.net>
>Subject: RE: FW: fifty year term of recording copyrights
>
>The sound recording rights are separate from the musical work copyright.
>For example, if I wanted to record a Kylie track I would have to clear
>two permissions - one for the use of the original sound recording and
>the other for the use of the musical work itself.  The sound recording
>rights are retained with the record label as they have funded the
>recording.  Once you have contacted the label to get permission, you
>need to clear the rights for the musical work - these rights are either
>held with the Writer or publisher of the Work.  Seeing as the sound
>recording you wish to use is out of copyright, you do not need to clear
>the permissions as it is in the public domain and you are free to use
>it.  However, you still need to clear the rights for the musical work -
>i.e. the publisher, and this is where MCPS comes in.
>
>If you are still confused it really is best if I speak to you on the
>phone.  Is there any way you can get to a phone soon?
>
>Kind Regards,
>Lorraine Wright
>
>-----Original Message-----
>From: James Davis [mailto:jamesd@jml.net]
>Sent: 08 February 2005 11:16
>To: MCPS Ap Info
>Subject: RE: FW: fifty year term of recording copyrights
>
>So does the fact that the recording copyright has elapsed at all affect
>the royalties due? That's what's confusing me. Sorry to ask so many
>questions, you're being very helpful and patient. :-)
>
>James
>
>On Tue, 8 Feb 2005, MCPS Ap Info wrote:
>
>  
>
>>It is not possible to tell you the cost until we receive the AFL back
>>from you but as guidance - royalties are calculated at 8.5% of the
>>Published Dealer Price (PPD) multiplied by the number of copies to be
>>manufactured (plus VAT).  If you do not operate a PPD structure (use a
>>distributor), you may use the alternative rate of 6.5% of the retail
>>price (ex. VAT), again, multiplied by the number of copies to be
>>manufactured (plus VAT).  Royalties are only charged on MCPS controlled
>>Works and are calculated pro rata on timings of each musical work
>>against the overall length of all the musical works on the Disc.
>>
>>Kind Regards,
>>
>>Lorraine Wright
>>
>>-----Original Message-----
>>From: James Davis [mailto:jamesd@jml.net]
>>Sent: 08 February 2005 11:03
>>To: MCPS Ap Info
>>Subject: RE: FW: fifty year term of recording copyrights
>>
>>I hope you don't mind my replying by e-mail, I'm unable to use the
>>telephone at the moment. If I were to license 'That's Alright Mama',
>>Elvis's first recording for which the recording copyright has now
>>expired and written by Arthur Crudup (died '74), for use as a track on a
>>CD, what payment would need to be made to MCPS?
>>
>>James
>>    
>>
>
>
>
>
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