Copyright and music
At the Share-in, I talked with Fred for a while and tried to understand the intricacies of U.S. copyright law in its application to musical works.
Below is my current understanding, but any errors in it are mine and not Fred's! I'm pretty sure I've made some mistakes in this.
The complexity begins with the fact that there are two separate copyrights associated with much recorded music -- a copyright in the composition and a copyright in the recording.
For any given copyright, there are several different rights which copyright law grants to the holder of that particular copyright. (Frequently, the holder of the copyright in a composition will not be the same as the holder of the copyright in a recording of that composition.) The rights reserved by law to copyright holders include a right of reproduction (copying) and a right of public performance (playing or performing in public), among others.
So, to start off:
- There is a public performance right in a composition; this is licensed for most copyrighted songs by ASCAP or BMI. This is not a compulsory license -- a copyright holder can say "no" -- but ASCAP and BMI signed a consent decree which regulates the license, so it is a license whose terms are regulated by the government. Some people think the consent decree approximates what a compulsory license would look like if there were a compulsory license for public performance of compositions. A song author does not have to be represented by ASCAP or BMI, but they do represent copyright holders of the majority of songs. So if you want to sing a copyrighted song before a crowd, or on a street corner, you are supposed to have a license from ASCAP or BMI or otherwise have appropriate permission from the copyright holder. Singing a song in public will be considered a public performance; that includes singing it in a restaurant, which is why many restaurant chains will not sing "Happy Birthday" but will instead sing some other song of their own composition (or "For He's a Jolly Good Fellow").
- A public performance is not itself copyrighted because it is not fixed in a tangible medium; if you make a recording of a performance, that particular recording is subject to copyright. (A side issue is who holds the copyright in that particular recording, but I won't go there right now.)
- There is a reproduction right in a composition; this is licensed by Harry Fox Agency. This is what you use if you want to record a "cover" of a song written by someone else. There is a compulsory license which you can use if you want to cover a song and make your own recording (and then you can sell or give away as many fixed copies as you like, paying the statutory royalty or the Harry Fox Agency royalty on each -- but you will still not be able to play that recording in public without a performance license).
- There is also a copyright interest in duplication of the composition itself (without actually performing or recording it -- e.g. by photocopying lyrics and scores). I don't think there's a compulsory license for that, but there may be a method to collect royalties and permit this with low overhead in many cases.
- There is no public performance right in a sound recording; if you have a sound recording of a work which is not subject to copyright, you may play it in public without any permission or royalty! (The copyright holder for the composition will have a claim against you if you haven't paid the appropriate performing rights organization like ASCAP or BMI for the license for public performance of the composition. But it seems that if the composition is not copyrighted, as with most classical music, then there is no license necessary for public performance at all.)
- There is a reproduction right in a sound recording and there is no compulsory license for this. So if you buy a CD, you are not allowed in general to copy it (although of course there are reasons to copy the CD which could be fair uses). But if you play it in public, or broadcast it, the record label does not have a claim against you.
- There is a special "digital public performance" right in a sound recording if you make a broadcast of the recording using a digital streaming technology. This right is only recently created and is an exception to the general rule that there is no public performance right in a sound recording. There is a compulsory license for it; the terms of this license are the subject of the controversial CARP proceeding. The royalties for major labels are collected by SoundExchange.
- Traditional radio stations never had to pay record labels for their broadcasts, but they did have to pay composers (via ASCAP and BMI). The record labels were entirely uncompensated, and, in fact, frequently bribed the stations to play a particular work ("payola"). (Many people involved did feel that the radio stations were performing a service for the labels by playing music, and labels continue to spend tremendous amounts of money to try to induce radio stations to play their recordings on the air.)
- Internet radio stations enjoyed the same terms as terrestrial radio stations until 1995 when the digital performance right was created; now they are treated differently, perhaps because of the convenience and wide geographic reach, perhaps because of the ability of listeners to exercise greater control over what they hear, and perhaps because of the ability of listeners to make reasonably high-quality recordings of particular works in an automated way which identifies, segregates, and labels the recordings. Or maybe the distinction is purely political.
- Internet radio stations considered the arguments of the RIAA (that it was unfair to use music without paying them for it) strange because terrestrial radio stations have never had to pay the record labels for the corresponding activity. There might have been a sense of "you've been giving payola to terrestrial DJs to broadcast your songs as often as possible, and never charging them a penny for any of their broadcasts, and now you call us thieves because we broadcast your songs too?".
- Links from other weblogs:
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