Bootlegs and Imports: Seeking Effective International Enforcement of Copyright Protection for Unauthorized Musical Recordings

Article excerpt

I. INTRODUCTION

In response to the swell of worldwide bootlegging and piracy of music, sound recordings, and motion pictures, several conventions have been held throughout the international community, resulting in anti-bootlegging treaties and laws.(1) These treaties and laws seek to establish a global system of copyright enforcement to curb the bootlegging problem.(2) This Comment will examine several of these international treaties and trade agreements, including the Berne Convention for the Protection of Literary and Artistic Works,(3) the Geneva(4) and Rome Conventions,(5) the Uruguay Round Agreements Act (Uruguay Round)(6)--trade negotiations under the General Agreement on Tariffs and Trade (GATT),(7) the Universal Copyright Convention,(8) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).(9) Additionally, this Comment will address whether these treaties actually establish an international system of copyright protection, and whether an international system of enforcement is the most effective approach to preventing bootlegging and piracy.

A. Why Anti-Bootlegging Laws and Treaties Were Developed

Many commentators refer to Great White Wonder, a two-record collection of previously unreleased Bob Dylan recordings from 1961, 1967, and 1969, as the first modern-era bootleg to have an impact on the artistic and financial concerns of musicians and their record companies.(10) It was, by industry standards, a poor quality recording--containing muffled, monaural, bass-heavy sounds--and was produced on a vinyl record carrying its own audible pops and crackles.(11) But rock and roll fans of that era, particularly those enamored with the legendary Bob Dylan, were so hungry for new music that sound quality remained a secondary consideration.(12) While the album became an underground craze, neither Dylan nor his exclusive record company, Columbia, played any part in its release or gained any of its considerable profits.(13)

1. Technological Advancements in Recording

Ironically, it was Bob Dylan who pointed out that "the times they are a-changin'."(14) However, this was a reflection on the social changes of the sixties and seventies,(15) not a commentary on the technological advances in recording equipment that would make bootlegging much easier--and the resulting sound quality much better--as the end of twentieth century approached.(16) The advent of the portable tape recorder, the compact disc (CD), and most recently the digital audio tape (DAT) and recordable CD--which both offer high-fidelity digital recording and the promise of no loss of fidelity in subsequent copies(17)--now play a large part in driving the bootleg music industry.(18)

According to the Chief Counsel of the U.S. House Judiciary Subcommittee on Intellectual Property, the modern copyright industry has been most significantly affected by the development of digital recording technology.(19) To fully comprehend the danger of digital technology to copyright holders, it is important to distinguish it from traditional audio reproduction:(20)

   An analog recording involves the physical tracing of the original sound
   directly and continuously into grooves on the storage medium by means of a
   "mechanical pickup". Analog playback is accomplished by running a "stylus"
   [a/k/a "needle"] through the grooves and converting this movement into an
   electrical signal, which is then amplified. Because analog reproduction is
   a physical process, imperfections in the original work, such as cracks,
   pops and fuzz can diminish the sound quality of the copy.(21)

Digital reproduction on the other hand, uses a process called digitalization, which is not susceptible to the imperfections inherent in analog recordings:

   Digitization is the process of electronically translating an original sound
   recording into a series of mathematical 1s and 0s, known as "bits," and
   storing these bits on some form of digital medium, such as a computer
   hard-drive or a compact disc. …