Fixing A Hole – The Beatles Back Catalogue Available For Download…..But Not For Long

 While the Government continues to grapple with how to solve the growing problem of filesharing and the Music Industry looks for new ways to encourage Consumers to pay for music which they download, one of the holy grails of music downloaders made its way onto the web this week for purchase – the Beatles’ Back Catalogue.
Earlier this week, began streaming the Fab Four’s music for free and selling MP3 versions of all of their songs for 25 cents each, or around 15p. Music fans greeted the news with understandable enthusiasm given that iTunes’ price per track is around 79p and the Beatles have been one of the last major acts to make their music available for legal download, but Music Lawyers doubted that Bluebeat were actually authorised to sell or stream the Beatles’ music by either EMI (the Beatles’ record label) or Apple Corps, who publish and control how their music is used.
Yesterday, it was announced that EMI had not authorised Bluebeat to sell the Beatles’ music and that it would now sue the site, who are selling copies of the Remastered Beatles Albums, which went on sale in September in a massive publicity campaign tied to the release of the video game “Beatles Rock Band”. Both the remastered CDs and the Game have proved phenomenally popular and Apple have announced plans to sell all 14 of the Beatles albums in digital form on a specially-produced USB memory stick with artwork and video footage in the US from December at a price of $280, or around £200 in the UK.
As much as fans may want to see the Beatles’ music released for legal download and as much as the surviving Beatles may want the deal to be done, the chances are that we won’t see it available for legal download anytime soon for a number of reasons, the biggest being that Apple Corps and EMI have never been able to agree on a deal for doing so.
As publisher, Apple Corps. control the actual songs which the Beatles wrote and ensure that royalties are collected whenever those songs are used or recorded, with the actual recordings being owned by EMI as the record label. If the recording of a song is used without permission, it would normally be the Record Label which sues, as is the case here. What they’ll sue for will be copyright infringement based on the recordings being musical works and their use without a licence, as well as for putting their copies into the public domain. Both Apple and EMI will be entitled to generate profits from the Beatles’ music, so both will need to agree on how those profits will be split.    
US copyright law is slightly different from the UK version, but whatever the case the damages awarded could be very significant. When looking at cases such as this and considering how UK law would deal with them, there are a number of factors which have to be borne in mind before issuing proceedings on music copyright cases. A major issue will be that under our system, copyright comes into being when an artistic, literary or musical work is recorded in a permanent form, i.e. the tracks laid down in a studio. This means that copyright is unregistered, unlike a patent or trade mark, and as such there is no central database of what works are protected. This means that you will need to take action quickly as well as show a clear “chain of title” to prove that copyright in the recording belongs to you. For a major label, this is usually very easy as the artist in question will have signed a contract dealing with this and pretty much every other issue that might come up.
However, the other factor to take into account will be how issuing proceedings may damage or promote your commercial interest. The Beatles’ catalogue is one of the most strictly-policed in the business and always has been, as was the case earlier this year when Norwegian Broadcasting Company NRK was forced to remove Podcasts from their websites which contained all 212 of the Beatles’ Songs after threatened litigation. Fans have waited for years for the ability to download their songs, and this had led EMI and Apple Corps announcing the release of a branded Memory Stick in December containing all of the Baatles’ Albums as well as extra material. Having the contents available for free download will obviously affect sales of what will, in all probablility, be a massively successful product even with a £200 price tag. The costs of litigating may be small in comparison with what would be lost. Not only that, but EMI will need to send a message to anyone else looking to follow Bluebeat’s example.
Bluebeat, however, seem to be taking this in their stride by comparison. They refer any enquiry to the fact that, if any rights holders have an issue with music sold or streamed through their website, that they can request its removal. They also offer tracks by Robbie Williams and the Rolling Stones and have been around since 2004, even going so far as threatening to sue Microsoft in 2007 over use of security software. It’s hard to imagine that Bluebeat couldn’t see this coming and that this isn’t a publicity stunt to increase their market share in the online music industry, which is becoming more and more crowded. Campaigners have always argued that stricter penalties against file-sharers such as those announced by the Government earlier this week were unfair if the material which was being downloaded was not available through legal sites. They have a point as far as the logical artgument goes but not the legal one.
What this incident may ultimately lead to is the MP3 files on the forthcoming USB finally being made available for legal download, as many suspected would be the case earlier this year when the Rock Band and Remastered CDs were launched, If figures which suggest that Beatles tracks have been downloaded over 100 million times without permission, then EMI and Apple may have no choice but to finally agree on a deal which could see them tap into a huge market which is waiting for their product. Until then however things are going to get worse for Bluebeat before they get better unless the tracks are withdrawn – any profits they may have made (even on an average price of £3 per album) will more than likely be swallowed up in legal fees if they decide to fight the case, which seems virtually impossible. They could end up “carrying that weight” for some time.
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