That is a bit difficult to understand. What is the "fixation" in the case of the Bird-Diz recording.
I'm not really versed in law, but if a *phonogram* is the actual physical *thing* containing the music (be it an acetate, a master tape or a CD or whatever), the actual acetates produced in 1945 and used by Uptown would not be liable for producer's rights in the EU, but the actual CDs published by Uptown (© 2005) would, right?
Ethics are rather clear. Any lawyers in the room?
F
Edit because whatever I was talking about had nothing to do with the producer's particular situation (and is thusly not germane to the present conversation). Publication refers to registration with the proper authorities; unless those acetates were cleared later in the 40's (or whenever if the publication fell into the 50-year timeframe), the rights have expired. "Phonogram" is a somewhat anachronistic term--phono records are just "tangible copies of works that can be reproduced" (paraphrasing, of course).