Tech Law

The Beatles' bootlegs: Apple Records has abused its position and ought to be ashamed

By Mark Leiser |

December 24, 2013 | 6 min read

Apple is set to release a new album consisting of bootleg recordings of the Beatles. The bootleg recordings will be a fan’s dream – unreleased versions of Beatles songs in various stages of development. There are even rumours of unreleased and unheard songs.

Questions: Apple's iTunes is releasing a Beatles bootleg album

However, all the Beatlemania aside, there are cynical, yet logical questions about why Apple is releasing bootlegged only album and most of them revolve around the copyright protection (and therefore royalties) that Apple is going to get by releasing the recordings.

As the Guardian reported: “On Tuesday Apple [Records] will release the downloads of Beatles recordings which have long been bootlegged but never been made legally available. They include outtakes, demos and live BBC radio performances. A spokeswoman for Apple would only confirm that the 59 tracks are being released. As to the company's motivation: ‘No comment.’ Is it because of the copyright laws? ‘No comment.’

"One reason for that, says Beatles blogger Roger Stormo, is that the record company does not really want to release the material in the first place -- its hand is being forced. ‘The only reason why they are doing this is to retain the copyright of this material,’ he said.”

Controversy abounds as it is unclear whether or not Apple is making the album available to gain copyright. Unreleased material enters the public domain after 50 years from the time of recording, but just last month the UK extended copyright protection to 70 years (from the time of original release).

In any recording there is often two rights that can apply: the rights of the performers and the rights of the producers of the recordings. Rights in recordings will expire after 50 years after the making of the recording. However, if the recordings are not lawfully published, but lawfully communicated to the public in the 50-year period, then the rights will expire after that first public broadcast.

A bootleg, where a fan makes an illegal or black market recording of something, is often used to gain a special one-off recording of bands and performers out-with the comforts of the studio, or material that has been unreleased to the market.

Bootlegging became a business in its own right after, ironically, the Beatles shelved their Get Back album. Some copies of the work made it to radio stations and either through illegal copying or theft, the business of bootlegging began.

Now, in the age of the Internet and the age of information, liberation (or piracy) bootlegging has little value as a business anymore. A song shared on the internet is a song shared all over the world. When you combine bootlegging with the golden age of rock n roll getting to its 50th birthday, all of a sudden we may be seeing a slew of “bootleg” recordings hitting the market in order to start a new 70-year clock.

As copyright is designed to encourage people to create new works, it is arguably farcical that they need 70 years of protection in order to gain motivation to do so.

We don’t know whether the Beatles recordings are new and non-existent. Apple could legally put the album up for a couple of weeks, take the material down, and then own the copyright for another 70 years.

If that was the case, Apple will likely suffer a massive backlash from the fans and see first-hand how the internet user liberates information. The other scenario is that Apple has found a stash of recordings, makes them available and retains the new copyright protections.

This may cause problems for other official and unofficial bootleggers. Bootleggers justify their trading of material because they aren’t depriving the act of any profit, and because they still buy the released versions of the songs artists do release through official channels. Bootleggers do it because of their love for the artist.

If Apple is going to create a market in order to gain copyright protection in, essentially, recordings taken by other people, then there will likely be a moral argument that bootleggers can still trade in the material that Apple does not want to release for a profit.

When the Beatles recorded their music, they were given control for 50 years over their recordings. This monopoly came from governments all over the world that had become signatories to various conventions on copyright and intellectual property. Apple has abused this process for profit. And they should be ashamed of themselves.

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