Why should I keep my honor? I will be done in anyway!
Why shouldn't I keep my honor! I will be done in anyway.
The past Saturday milonga in Vienna marked my 200th gig as a tango DJ! This was made up of 128 invitations (41 sets in larger (marathon/encuentro/festival/) events and 87 sets in regular, 3-6 hours long milongas) and 72 sets in self-organized events (almost all of which were regular 3 hour long milongas in Budapest, although 11 of them were longer "pre-marathon" milongas visited by early-bird traveling marathon dancers as well as locals).
Not having a FB account, not traveling around without being invited, not organizing larger events, not benefitting from reciprocity from inviting other other organizers to DJ etc. are definitely not helping visibility, but I'm actually quite happy with how these past few years worked out and I am grateful for the amazing experiences making dancing people happy allowed me to have. Good times!
Analyzing my past playlists I also made some observations about patterns I was not fully aware of before; when I have more time I'll maybe write up a post although I think this probably interests one person: me. For now, out of these 200 sets:
I was recently asked to teach a "musicality class" where I talked about the structure of different tangos, focusing on the placement of the vocal sections, the dominant violin sections, and their relationship to "softer dancing".
In preparation I spent a fair bit of time dissecting the six tangos I used in the class as illustrations. To allow everyone to keep his/her own pace I now uploaded some parts of the handout I gave out, together with the linked audio segments. It is a work in progress and surely contains mistakes (note: I have no formal musical training!), but for your amusement you can check it out here:
The tangos are: Canaro-Maida: Cara sucia (1937); D'Arienzo-Echagüe: Pensalo bien (1938); D'Arienzo-Echagüe: No mientas (1938); Rodríguez-Moreno: Cómo se pianta la vida (1940); Di Sarli-Podestá: Nada (1944); Troilo-Marino: Cotorrita de la suerte (1945).
From a technological point of view creating an online radio is not too difficult. Times when it was necessary to set up a streaming server in your own basement are gone; nowadays there exist online streaming services that provide, in exchange for a monthly fee (which depends on the number of listeners, on the stream quality etc), a streaming server, in some cases even with auto-dj features. You just pay the monthly fee, upload the music to the server, press "start", and the server transmits a random selection of your uploaded music to any listener who tunes in on the radio's homepage.
But this technological ease is very misleading and most online streaming service providers are essentially honeypot organizations. Any transmission of music requires the owner of the radio station to obtain various types of broadcasting right coverages and follow strict transmission rules to render the transmission legal and the details get quite complicated quite quickly. It is important to understand that, with the exception of some circumstances (such as unwillingness to act in a timely manner upon receiving a DMCA notice) the aforementioned streaming server providers enjoy immunity from a copyright lawsuit: it is the owner of the radio station, and not the streaming service provider, who bears the legal responsibility.
Since the entire business model of said streaming providers depends on large number of unconcerned enthusiasts unwittingly signing up for their services, they tend to be quite quiet about these legal "issues". To get absolved of responsibility they mention in the fine print of their terms of service that the owner of the radio station is solely responsible for royalties and other broadcasting legal costs, and they maybe have a small link on the bottom of their page half-heartedly explaining the situation, but otherwise they tend to hide this fact from their users. Not surprisingly: were users aware of their legal responsibilities and the complications involved, most of them would not sign up for the service in the first place. The streaming providers can always waive their hand and say that their service was intended to serve pure talk radios (only talking heads, no music whatsoever), which is about the only case in which royalty payments are not necessary. Some of the providers follow even more disgusting practices: they offer monthly packages that cover for some of the necessary broadcasting rights but they fail to make it explicit to their users that these coverages in themselves are not sufficient for maintaining legal standing, creating the false appearance that the user, by paying for such monthly package, need not worry about other legal aspects of radio operation.
You may shrug shoulders and choose to not worry about copyright but I suggest you to think twice. Any radio owner who is running an unlicensed radio risks exorbitant penalties and costly lawsuits. To quote from the 2017 guidelines of the FCC:
The Commission considers unauthorized broadcast operation to be a serious matter. Presently, the maximum penalty for operating an unlicensed or "pirate" broadcast station [...] is set at $10,000 for a single violation or a single day of operation [...] Adjustments may be made upwards or downwards depending on the circumstances involved. [...] There are also criminal penalties (fine and/or imprisonment) for "willfully and knowingly" operating a radio station without a license.
Needless to say it is technologically quite easy for a licensing body to employ listening bots that tune into any online radio stream and save the transmission for later inspection, which may occur years after the fact. (I've just read in the Federal Register that the Copyright Royalty Board served a "Notice of Intent To Audit" in January 2017 for the operation year 2013 of several online radio operators. We don't yet know what is going to be the end result of their investigation, but it does not seem to be wise to me to run the risk of operating a non-fully covered online radio.) Again, the technological ease with which one can create an online radio is quite misleading; the same technological ease also applies to monitoring the copyright compliance of these online radios.***
Below I'll call attention to some of the difficulties arising for online radio operators in a question-answer form. I should stress that this is a non-exhaustive list and none of what I'm writing here should be construed as legal advice. I spend a large chunk of time getting informed and up-to-date about the changing legal environment, and I have consulted experts in the past regarding my own radio operation, but if you plan to open an online radio, please find your own lawyer for doing so. Be warned however that changes are implemented every year and one needs to stay up-to-date to conform to the law.
(1) Do I need to pay for licensing bodies for playing music? Oh boy, yes you do.
How much and to whom depends on the jurisdiction that applies to the online radio as well as on the countries in which the radio can be listened from (whose listeners are not prevented by geofencing from tuning in to the online stream). There are also multiple aspects of copyright and broadcasting rights which need coverage. Separate royalties are due to composers of the music, to the original artists who performed the music, if the actual recording is a cover then to the cover artist, to the record labels, in some cases to the organization who transferred the music (say, from an original shellac to mp3), etc. This is not a joke.
In most countries "fortunately" one does not need to contact all the authors individually but there are rights organizations which collect the fees on their behalf. Typically there are two or three such organizations one needs to be in touch with. For instance (to the best of my knowledge) for a radio operating from the U.K. (and transmitting to the limited set of countries with which PPL has cross-licensing agreement) an online radio needs to pay royalties to at least two organizations, the PRS and the PPL. The PRS fee is flat but the PPL fee scales with the number of song transmissions the radio makes. The PPL fee might seem to be deceptively small but with a large number of listeners and songs played it adds up quickly: had my radio been licensed under the U.K. scheme and had it had the same number of listeners through a year as it had in January 2017 the PPL fee alone would come out to be around 17,000 EUR. (Apropos costs: please consider becoming our patron: https://www.patreon.com/bePatron?u=2583256 Thanks!)
(2) Can I simply play a random selection of music? No, at least not in case your stream can be listened to in major Western countries. Different countries have different regulations, but many of them have several rules that apply to musical programming. For instance according to US regulations online radios that can be accessed in the US
To talk home to the tango community, these transmission rules also forbid playing a typical "tanda" of four consecutive songs from the same tango orchestra. (There are some workarounds, but one needs to be careful.) It should also be clear that if the average length of a song is 2.5 minutes then a music-only online radio essentially needs to play music from at least 18 different orchestras every 45 minutes! Everyone who is familiar with the danceable tango repertoire will recognize that obeying this rule - while providing a balanced selection of music without overplaying certain songs from orchestras that produced relatively few good songs - poses challenges. Those tango radios that try to maintain legality and follow these transmission rules are automatically at a quality disadvantage compared with those tango radios that ignore them.
(3) Are we done? Or is there something else? Unfortunately there are many other difficulties as well. One example is that an online radio is supposed to employ reasonable technological measures against unlicensed use of its services, such as downloading individual songs from its stream or streaming to territories for which it doesn't have coverage for broadcasting and neighboring rights. What counts as a "reasonable technological measure" changes with time; in the past crossfading of songs and geofencing seems to have been sufficient, but recently there are new requirements i.e. about confuscating stream metadata to disallow automated taggers. An online radio owner needs to keep an eye out for these developments on the appropriate forums and diligently implement them, and it's frankly somewhat time consuming to do so.***
So, nice online tango radio - but is it legal? I took a quick look at the streams and at the streaming solutions of some of the better known and/or newest online tango radios. I don't want to point direct fingers so let me just refer to them as the Hungarian, the French, the German, the Greek, and the Polish tango radios. According to my best knowledge and judgement (and I may be wrong and am willing to change this post immediately upon receipt of convincing evidence to the contrary) as of April 2017 I find that, among the three legal requirement mentioned above, only the Hungarian and the French tango radio satisfies all (1), (2), and (3). I believe that the German tango radio does satisfy (1) and probably also (3) but not (2). I also believe that the Greek and the Polish tango radios essentially fell into the aforementioned honeypot of streaming service providers and they don't satisfy any of (1), (2) or (3). I may be wrong, but given the legal risks mentioned before I'd advise their owners to get more informed about the legal situation in jurisdictions that apply to them.
The question whether a Golden Age tango recording is in the public domain in the United States seems to depend on a particular historical question to which I don't know the answer (but I would love to, so please help if you can!): how much time did it pass between first distribution of the recording in Argentina and the first distribution (or at least the first offering for distribution) of the recording in the United States? If for a recording the answer is "30 days or less" then it is very likely that the recording is in the public domain in the US.
Let me explain for those interested in the intricacies of copyright (while stressing that none of what is said below should be construed as legal advice). Until the advent of the current US law, the Copyright Act of 1976, copyright in the US was regulated by The Copyright Act of 1909. According to the 1909 Act copyright lasted for 28 years after publication unless it was renewed in its last year for a second copyright term. To quote from Circular 15a of the United States Copyright Office:
Under the 1909 act, federal copyright was secured on the date a work was published or, for unpublished works, on the date of registration. A copyright lasted for a first term of 28 years from the date it was secured. The copyright was eligible for renewal during the final, that is, 28th year, of the first term. If renewed, the copyright was extended for a second, or renewal, term of 28 years. If it was not renewed, the copyright expired at the end of the first 28-year term, and the work is no longer protected by copyright.If copyright on the work was not renewed in its last year then the work entered to the public domain. The 1976 Copyright Act substantially (and retroactively) increased the length of the 28 year renewal term however it did not change the copyright status of those works that already entered to the public domain due to the lack of request for renewal.
A request for renewal was supposed to have been submitted to the Copyright Office and all submitted renewal requests were recorded in the Catalog of Copyright Entries. Thanks to the hard work of government transparency activists all of these Catalogs have been scanned, text-recognized, and uploaded to the Internet Archive: https://archive.org/details/copyrightrecords . If there is no record for the renewal request among the Catalog entries 28 years after the first publication of a work, copyright expired on it in the end of the 28 year period and the work entered to public domain.
I've checked around a dozen better known Golden Age Argentine tango recordings in the Catalog and it appears that renewal requests have not been submitted for them at the appropriate time; on this basis I believe the same is probably the case with the overwhelming majority of Argentine tango recordings. Take for example the vals Pobre flor by the orchestra of Alfredo de Angelis. It was recorded and published in 1946 by Odeon Records. Suppose its publication date was two months after its recording date, on the 09/01/1946; then copyright on it in the US lasted until 09/01/1974 unless a renewal request was submitted sometime between 09/01/1973 and 09/01/1974. I have checked the Catalog of Copyright Entries for 1973, 1974, 1975 and found no renewal requests for the song (or for any other works of Alfredo de Angelis for that matter). Sans the renewal request Pobre flor entered to public domain in the US 28 years after its publication and stayed there at least until January 1, 1996.
Why January 1, 1996? Well, because with that effective date the Uruguay Round Agreements Act of 1994 retroactively restored copyright to certain foreign works whose US copyright protection had been lost because of noncompliance with formalities of US law, in particular noncompliance with failure to renew. Foreign works that met certain criteria automatically got treated as if their copyright holders had submitted a renewal request, and since the renewal terms got extended to ridiculously long periods (typically the full term became the last author's death plus 70 years), eligible Golden Age tango recordings are still most likely within their extended copyright term.
Is this the end of story? Not quite. The Uruguay Round Agreements Act only applied to works that met four criteria (see Circular 38b of the United States Copyright Office). The first three of these are almost certainly met by Golden Age Argentine tangos, however the last criteria is curious:
4. If published, the work must have been first published in an eligible country and not published in the United States during the 30-day period following its first publication in the eligible country.
Now the US copyright law defines "publication" as:
the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of people for purposes of further distribution, public performance, or public display, constitutes publication.
In other words, if in our example Odeon Records published Pobre flor in Argentina in 09/01/1946, but did only so much as to offer it to a US entity for the purpose of distribution between 09/01/1946 and 09/30/1946, then Pobre flor does not meet the criteria set out by the Uruguay Round Agreements Act, and hence it is still in the public domain in the US!
To me it sounds quite plausible that at least an offer for sale in the US was made within a short amount of time given the already global nature of music distribution (i.e. the originally German Odeon Records became part, through multiple acquisitions and merger, of the London based EMI in 1931 which had a well established distribution network in the US). I do not know the answer for sure, however, and I have no access to historical documents describing the publication practices of recording companies at the time to verify it beyond doubt. 30 days does seem to be a short period of time, so we would really need some expert looking into this issue. Apart from expert knowledge about publishing practices other forms of evidence would also be interesting, i.e. does someone know of periodicals of the time that mentioned new tango releases (and offered them for sale) that are known to have been distributed in the US? (I.e. "Caras y Caretas" or similar publications could be consulted - but were they available in the US in a timely manner? (Thanks Bernhardt for the suggestion.))
If Pobre flor were in the public domain in the US, one would be free to use one's own shellac-to-mp3 transfer of it under a Youtube video without needing to worry about copyright claims made by The Orchard Music or anyone else, Youtube being a US incorporated company. (This would be so despite the song potentially being protected by copyright in countries other than the US, for instance in Argentina; Youtube might then be compelled to impose viewing restrictions on the video in Argentina, but not in the US. I'm emphasizing "own transfer" because the transfer from shellac itself can create a copyright for the person who makes the transfer depending on how much added value is created in the course of the transfer, resulting in this aspect of the newly created mp3 file falling under copyright protection.)
Long story short: I'm looking for historians' input here who are familiar with the marketing and distribution practices of Odeon, RCA etc. and could comment on the issue of time passing between distribution in Argentina and (offerings of) distribution in the US. If you know someone (who might know someone) who could know these things and could back it up with credible historical evidence, please put us in touch!
If I find additional relevant information on the topic not mentioned in the comments below, I will update the post accordingly.