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March/April 2007 |
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E. Scott Johnson Appeared in the Maryland Bar Journal and The Computer & Internet Lawyer Podcasting, a term that did not exist until 2004, was New Oxford America Dictionary's "Word of the Year" in 2005. Podcasting is the latest web-based innovation to gain wide public acceptance. Derived from the terms "iPod" and "broadcast," podcasts are digital files, usually in mp3 format, that can be downloaded for playback on portable media players and desktop computers. Podcasts are not just downloadable files, but like weblogs, use syndication feeds such as RSS (Really Simple Syndication) to distribute podcasts to subscribers. Initially, podcasts consisted primarily of talk radio style programming, but now feature a range of programming, and include audiovisual works. Like other digital technologies that can be used to facilitate dissemination of copyright-protected materials, content owners view podcasting both as an opportunity and a potential infringement risk. Promoters of the technology are calling on Congress to enact new copyright laws to help it grow, with many insisting that new compulsory license regimes are needed to facilitate licensing of musical composition and sound recording rights for podcasts. Currently, podcasters face significant challenges when licensing content, especially music. When portions of copyright-protected works are used, the words "fair use" all too often find their way into the discussion. Podcasters that do not profit directly from their podcasts, and those running nonprofits, especially tax exempt charitable and educational organizations, too often believe they are entitled to extensive "fair use" exemptions from copyright laws. That is mostly untrue. While certain specific exemptions for nonprofits are provided under U.S. copyright law, nonprofits generally must comply with the same laws as for-profit businesses when using copyright protected works in their podcasts, and copyright laws apply to podcasts whether or not they generate any profits. Further, fair use is a defense to a copyright infringement claim, and in most cases not a "right" until vindicated by a court after litigation. Spoken word podcasts, in which the speaker is also the author of the content, initially dominated the field. In such podcasts, the podcaster must comply with laws applicable to publishers generally, such as defamation, right of privacy and false advertising laws, in addition to laws specifically applicable to the Internet, such as the Children's Online Privacy Protection Act. But speaker-as-author podcasts generally do not pose intellectual property rights clearance issues. When third-party content, such as music, sound recordings, textual works, or, in the case of audiovisual podcasts, artwork, video and film clips, is incorporated in a podcast, the podcaster must possess or secure the right or license to use the intellectual property rights associated with such content. The most prevalent and arguably complex rights clearance challenges in this new technology arise from the use of music in podcasts. When commercially released music recordings are included in podcasts, two copyrights are involved for which rights must be licensed: the sound recording copyright and the musical composition copyright. For sound recordings made prior to 1972 (the year when sound recordings became copyrightable subject matter under U.S. Copyright Act), only the copyright in the musical composition is involved, but other laws apply to the use of pre-1972 sound recordings, and rights still must be cleared for the use of such sound recordings. Television, radio, and now webcasting have the advantage of streamlined "blanket licensing" regimes through the performing rights organizations ASCAP, BMI, SESAC (the PROs), which act as clearinghouses for the licensing of public performances of musical compositions, and through SoundExchange, which licenses certain digital transmissions of sound recordings. Record companies and on-line music retailers like iTunes can easily secure standardized mechanical licenses through The Harry Fox Agency (HFA). Podcasters do not enjoy such streamlined access to the licenses required for the use of commercial recordings and musical compositions in podcasts. U.S. television and radio broadcasters are not required to secure licenses from the owners of sound recording copyrights (typically, record companies) for the public performance (i.e., over-the-air broadcast) of sound recordings, but they must secure licenses from the owners of copyrights in the musical compositions (typically, music publishers) performed when the same sound recordings are played. This reflects an historical distinction in U.S. copyright law between sound recording and musical composition copyrights, in which a general public performing right is denied to sound recording copyright owners, but granted to musical composition copyright owners. Certain foreign countries do not distinguish between music and sound recordings, granting public performance rights to both. With the advent of Internet webcasting (streaming) of music, U.S. record companies saw an opportunity to improve the second-class status of U.S. sound recording copyrights, by seeking legislation that would treat "digital transmissions" as a special category of performance right reserved for the owners of sound recording copyrights. The PROs had already begun issuing "blanket licenses" for Internet webcasts of the musical compositions embodied in sound recordings, just as they had long issued blanket licenses to terrestrial broadcasters, and it is this model that record companies sought to emulate for licensing and collecting revenues from digital transmissions of sound recordings. The Digital Performance Right in Sound Recordings Act of 1995 gave sound recording copyright owners a limited performance right, applicable only to digital audio transmissions (i.e., terrestrial radio and television broadcasts remain a copyright-free zone for sound recording performances.), and established a compulsory licensing scheme for "non-interactive" subscription of digital audio transmissions. The Digital Millennium Copyright Act of 1998 expanded the statutory compulsory license for nonsubscription transmission services that meet certain criteria relating to the content of such transmissions. SoundExchange is the organization established by the Recording Industry Association of America (RIAA) under these new copyright provisions, to issue licenses and collect payments for non-interactive digital transmissions of sound recordings. While SoundExchange issues licenses for streaming audio performances, it does not license podcasts, because the new statutory/compulsory license provisions apply only to transmissions that are part of a non-interactive service. SoundExchange treats all podcasts categorically as interactive transmissions. Podcasters are unable to secure a statutory license through SoundExchange, and must negotiate separately with the individual owners of the sound recordings incorporated in their podcasts, a process that can be time consuming, costly and ultimately frustrating if the license is not granted. Despite SoundExchange's position that podcasts are interactive and therefore not licensable under the noninteractive statutory license, BMI recommends that podcasters secure its non-interactive website license, claiming that public performances of songs are pre-determined within a given podcast and non-interactive because the songs cannot be individually selected. Musical compositions contained in sound recordings are separately copyrightable, and derive from the authorship of the songwriter as opposed to the recording artist. The recording artist and songwriter are often the same, but need not be. For example, when a contemporary group performs a "cover" version of a Lennon and McCartney song, before the group's record company can release the cover version on CD it must secure a mechanical license from Sony/ATV Music Publishing, which owns the Beatles' musical composition copyrights. Even Capitol Records, when it sells Beatles sound recordings on compact discs, must secure mechanical licenses to use the musical compositions from Sony/ATV. The term "mechanical" as used in the music industry was originally associated with music boxes and piano rolls, which mechanically reproduce music. The Supreme Court stunned the music industry in 1908 when it held that piano rolls were in effect components of a machine and not visually perceptible "copies" of musical compositions, and therefore could not infringe the copyrights in the music they reproduced. Congress remedied this in the 1909 Copyright Act, giving musical composition copyright owners the right to control mechanical reproduction of music, which included the right to reproduce music on records, subject to a compulsory "mechanical royalty" rate established in the Copyright Act. Today, a "digital phonorecord download" of music is equivalent under the Copyright Act to a mechanical reproduction of a phonorecord, even though no physical sound carrier is involved. Mechanical license rates are still set by the federal government. In the United States, the National Music Publisher's Association through its licensing agency, The Harry Fox Agency (HFA), represents the majority of music publishers in collecting royalties from record companies, by issuing mechanical licenses, including licenses for digital phonorecord deliveries (DPDs) of musical compositions. Some commentators, and even BMI in its webcast license application, advise podcasters to secure mechanical (i.e., DPD) licenses for the musical compositions included in podcasts. However, at present, HFA, the organization that issues such licenses for the majority of publishers, declines to issue mechanical licenses for podcasts. Harry Fox Agency's May 2005 HFA Soundcheck newsletter, currently posted on HFA's website, states that the DPD license may be appropriate for podcasts, but goes on to virtually eliminate most podcasts from eligibility for the license for the usage: "Since users download podcasts, it seems that music distributed through this platform – if not altered (e.g. fragmented or interspersed with other audio content), accompanied by visual content, or used for commercial purposes – would appropriately be licensed as DPDs." This statement confirms that a DPD license is appropriate only when recordings of songs are not combined with other content, such as narration. Most audio-only podcasts would not meet this criterion. For audiovisual podcasts, synchronization licenses are required, which permit the podcaster to synchronize a musical composition in timed relation with visual images and distribute digital copies of the resulting work. HFA discontinued issuing synchronization licenses for its publisher affiliates in 2002, so this type of license too must be secured directly from the applicable music publisher. In the United States, the PROs license virtually all public performances of music and all take the position that any transmission of music over the internet requires a performance rights license. When music in a PRO catalog is streamed from a podcasters website, there is no question that a website public performance license should be secured from that PRO. However, if podcasts can be downloaded by the subscriber, and performed only after the download is complete, with no actual streamed performance of the music by the podcaster, query whether a performance rights license is really applicable. It is nevertheless clear that if a podcast includes copyright-protected music, in addition to a synchronization or transcription license (if applicable), and a public performance license (required, whether or not applicable), the podcaster needs to secure a license for the digital delivery of the work. In fact, BMI states on its website that BMI website music performance licensees should acquire additional licenses covering the "mechanical rights" in the musical works. This is somewhat perplexing, in that HFA, the organization that issues mechanical licenses for the majority of music publishers, currently does not issue mechanical licenses for podcasts. But nomenclature aside, both organizations apparently agree that some sort of license (beyond a performance license) is required. The PROs offer website licenses at reasonable rates. It is advisable to secure these licenses when podcasting programs that includes music in the ASCAP, BMI and/or SESAC catalogs, since the PROs at present are the only industry-wide licensing organizations that actually purport to license podcasts per se (SoundExchange and HFA both decline to issue licenses for podcasts). While ASCAP, BMI and SESAC purport to license rights to perform musical compositions in podcasts, no licensing organization or uniform license model currently exists for the digital delivery of musical compositions downloaded as part of a podcast, nor does any organization aggregate and license rights to digitally transmit the associated sound recordings in podcasts. This is the reason that many have called for compulsory licensing, with an organization like SoundExchange to administer rights in bulk. However, this writer does not believe that podcasts are easily susceptible of compulsory licensing, because the use of music in podcasts is so varied. An apt analogy is the use of digital samples in the music industry. Many producers have argued for a compulsory licensing regime for digital sampling uses. However, the variety of the end uses in digital sampling, just as in podcasts, has caused copyright owners to strenuously resist any efforts to establish a compulsory licensing regime. One practical alternative to the music licensing maze is the use of royalty-free music. Some music producers and production music libraries make available for a one-time payment, music and sound recordings that can be used in podcasts. One (of many) listings of "buyout" music libraries is currently accessible at www.podcastfreeamerica.com. Using public domain music is another practical alternative, but podcasters must be careful to identify as PD music that really is in the public domain. For example, U.S. copyright law is not the law in other countries. Most, but not all, countries follow the "rule of the shorter term," which provides that copyright protection will last for the shorter of (i) the term of protection available for the work under the national laws of the foreign country where protection is sought, or (ii) the term of protection afforded to the work in the home country. When using a song that is in the public domain in the United States, the podcaster should determine whether it is in the public domain worldwide. Because not every country follows the rule of the shorter term (Canada and the United Kingdom, for example, do not), a song that is in the public domain in the United States may still be protected under copyright in certain foreign countries. Irving Berlin's songs are a case in point. In 1911, Berlin had a hit with "Alexander's Ragtime Band." Copyright was renewed in 1939, and the song entered the U.S. public domain at the end of 1986. However, because Irving Berlin lived until 1989, and because Canada (a Berne Convention signatory) provides a term of protection measured by the life of the author plus 50 years, and because Irving Berlin met the then-applicable requirements for protection in Berne Convention countries in 1911 (by simultaneously publishing the work in a Berne Convention country), distribution of recordings embodying the Irving Berlin song "Alexander's Ragtime Band" in Canada will infringe Irving Berlin's Canadian publisher's rights in that song under Canadian copyright law (unless a license for digital delivery in Canada is obtained) until 2039, even though by then the song will have been out of copyright in the United States for 53 years! Admittedly, this a somewhat uncommon example of a U.S. composer outliving his domestic copyrights, but it points up the need for caution when distributing content that incorporates purportedly public domain music. Happily, many great musical compositions, including all of Bach's, Beethoven's and Brahms' works, are reliably out-of-copyright worldwide. Once it is determined that a musical composition is in the public domain, rights must be cleared in the sound recording of the composition to be used. One way to secure royalty-free music is to engage musicians to perform public domain works on a work-for-hire basis, thereby securing copyright in the sound recordings of those already out-of-copyright musical compositions. Because podcasting is so easy to do, it is also easy to underestimate the importance of securing rights and permissions. Podcast productions should be accorded the same serious attention to rights clearance as one would accord a television, radio or film production. The pre-production process should include a careful consideration of rights clearance issues, ideally during the initial budgeting phase. Securing rights before production commences is almost always less costly then the alternative of responding to an infringement claim or negotiating a license from the position of infringer. Television and film producers understand that budget constraints sometimes dictate that alternatives to using commercially released popular music recordings must be found. Podcasters can follow their example and engage music producers to record original music or public domain music at a fraction of the cost of licensing commercial material. Podcasts can range from very inexpensive "talk radio" formats to extravagant infomercial, edutainment and entertainment productions featuring high-priced talent and licensed content. Until licensing organizations and standardized formats are developed, podcasters should give extra attention to the rights clearance process, and be especially cautious when using music. Just as soon as content licensing for podcasters is streamlined, this writer plans to produce and publish a podcast explaining exactly how to go about it (a resource that is unlikely to be available any time soon). |
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