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Copyright Bizarreness

Via boing boing, via Joe Gratz, comes word of an interesting copyright infringement case:

Frank Field points to this press release from Irdial Records describing their settlement of a copyright dispute with WEA International.

Here's the story. Irdial put out a CD full of recordings of shortwave "numbers stations" called The Conet Project. The numbers stations are broadcast anonymously and more or less everyone acknowledges they have something to do with international espionage. For this reason, the recordings themselves are probably either not covered by copyright at all (in the case of recordings made by the United States government) or are protected by rights that are extremely unlikely to be enforced, since doing so would blow the broadcaster's cover.

Wilco sampled one of these recordings at the end of "Poor Places" on their album Yankee Hotel Foxtrot -- a numbers station repeating the words "Yankee... Hotel... Foxtrot". The sample was taken from the Conet Project CD. Irdial sued WEA, Wilco's record company, for copyright infringement in the UK. They claim, first, that their recording is unique because of the radio interference that surrounds it, and that this interference gives them a copyright in the recording. Second, they edited the recording to make it more interesting. Third, they processed the recording to make it clearer. Each of these, they say, gives them exclusive rights in their recording.

Now from the press release itself:

The recording we made of YHF was not made directly from the source of the people who originated the transmission, in other words, we did not go to the building of the originators, and plug our cassette machine into their tape machine to make this recording directly. This is a personally made recording of a shortwave transmission, with all of the nuances, noises and distortions short wave radio produces. These distortions, nuances and noises make our recording unique, and completely remove it from being a literal duplication of the original source. It is in art terms a piece of "Found Art", unique to itself, and impossible to replicate, since the above-mentioned qualities of shortwave interference are random effects.

In another context, imagine if we had made use of an anonymously authored traditional carol, which is copyright free. We make a creative use of this free work, and publish it in a special book of traditional Christmas carols, which have been typeset and designed by us. If someone then took a scan of one of the pages from our book, and then made a Christmas card out of it, or took this scan to use in their own book of Christmas carols, our copyright would have been infringed, irrespective of the fact that the original carol was copyright free. This example put to rest the argument that the recording of Phonetic Alphabet NATO is not protected by copyright, and that Irdial are indeed, the owners of it.

The key phrase is "we make a creative use of this free work." Irdial is claiming that the mere act of recording something over the air is making "a creative use of the work." By their logic, anyone, anywhere, anytime who records anything off the air is creating a derivative work (if what they are recording is protected by copyright) or an original work (if the source material is not protected by copyright). This is a bizarre argument. It equates tuning a radio dial with artistic expression.

The recording of Phonetic Alphabet NATO is directly analogous to a hydrophone recording of whale song. When a marine biologist makes a recording of Sperm Whales, the copyright of that recording belongs to the person or institute that made it. No secondary use of that recording can be made without the permission of the person or entity that made the recording; the physical recording itself is copyrighted, meaning that you cannot make a copy from that physical tape, minidisk or CDR without the explicit permission of the person who made it.
This is even more bizarre as an argument. Irdial is equating phonetic alphabet broadcasts with animal sounds. By definition, animals are not people and so cannot hold copyright (or any other property). Of course the biologist owns the recording he or she makes: the animal can't.

By Irdial's logic, if I'm using a radio -- from a walkie-talkie to a ham radio -- to talk with a friend, and I don't explicitly identify myself and claim copyright, then anyone can record my broadcast, copyright it, and control the use of it as they see fit. This cannot possibly be the case.

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