Rethinking Copyright
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Rethinking Copyright

History, Theory, Language

Ronan Deazley

This book provides the reader with a critical insight into the history and theory of copyright within contemporary legal and cultural discourse. It exposes as myth the orthodox history of the development of copyright law in eighteenth-century Britain and explores the way in which that myth became entrenched throughout the nineteenth and early twentieth centuries. To this historical analysis are added two theoretical approaches to copyright not otherwise found in mainstream contemporary texts. Rethinking Copyright introduces the reader to copyright through the prism of the public domain before turning to the question as to how best to locate copyright within the parameters of traditional property discourse. Moreover, underpinning these various historical and theoretical strands, the book explores the constitutive power of legal writing and the place of rhetoric in framing and determining contemporary copyright policy and discourse.
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Chapter 6: Conclusion

Ronan Deazley


During the 1930s the Gramophone Company, now EMI Records, made a series of recordings in England of classical pieces by three world-renowned artists, Yehudi Menuhin, Pablo Casals, and Edwin Fischer, the copyright of which, under UK law had expired by 1990.1 In 1996, EMI (the parent company of Capitol Records) agreed that Capitol would have an exclusive licence to exploit these earlier recordings in the US. At the same time, the budget price classical music publisher, Naxos, located copies of these recordings, and having undertaken its own restoration process, made them available for sale in 1999. Capitol commenced an action alleging infringement of their common law copyright in the recordings, as well as unfair competition, misappropriation and unjust enrichment. The District Court granted a summary judgment to Naxos. On appeal, the Second Circuit considered that the case raised several unsettled issues of New York law, and noting that under federal law ‘it is entirely up to New York to determine the scope of its common law copyright with respect to pre-1972 sound recordings’, certified the following question to the Court of Appeals: ‘[I]s Naxos entitled to defeat Capitol’s claim for infringement of common law copyrights in the original recordings?’2 In Capitol Records v. Naxos of America (2005) (Capitol Records) the Court of Appeals considered that Naxos could not.3 There are many points of interest within the case worthy of exploration, however, central to the decision is the question of the existence and nature of the common law copyright...

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