Law.com reports on a US case that could have serious implications for the musical public domain. In the 1930s, EMI’s predecessor produced recordings of performances by cellist Pablo Casals, pianist Edwin Fischer and violinist Yehudi Menuhin. The exclusive rights to exploit these recording in the US was given to Capitol Records. The copyright in the UK, where the recordings were made, expired after 50 years and in the US, Naxos issued remastered versions. Capitol objected. Even though the UK copyright had expired, Capitol relied on its common law copyright. This tactic was unsuccessful before the District Court, but succeeded before the Court of Appeals. Because New York had no performers rights legislation before 1972, recordings made before that date are protected by common law copyright protection. Unlike statutory protection, common law copyright is perpetual. This means it continues, even after foreign copyright has expired. However, common law copyright will be pre-empted in 2067 by the Sonny Bono Act. Comentators have pointed out that this means that ALL recording made before 1972 would get common law copyright protection in New York. This could have serious chilling effects.
The IPKat points out that there is no common law copyright in the UK, but the fact that this case has taken place in a jurisdiction as important as New York and covers foreign recordings may well mean that it has knock-on effects in the UK.
More perpetual rights here