Performance rights

The Digital Performance Right in Sound Recordings Act of 1995

Essentially, the Digital Performance Act creates an exclusive public performance right in the digital subscription of sound recordings, subject to certain limitations. Accordingly, the Act only applies to digital audio performances, not to transmissions of motion pictures or other audio-visual works. Similarly, the legislation does not apply to the transmissions by conventional (non-subscription) over-the-air broadcasters, rather only to digital audio transmissions in subscription circumstances (e.g. on demand to receive particular sound recordings). Such transmissions are currently those in cable and other electronic delivery media.

A specific composition is divided into two definitions - a song and a recording . A song is defined as the words and music that make up the structure of the song or the composition of an instrumental piece, while a recording is the actual physical sound and recorded version of the song. Similarly, there are various rights assigned to the copyright owners which need clearance for use on the Internet, depending on the way the song is used online.

Performance rights - songs

With the increase in technology available for coding and distributing music over the Internet, many web-sites have become digital versions of radio stations. To reflect this, the model for licensing the use of songs on web-sites such as these is similar to that of "traditional" radio - a blanket license is issued by the publishing organisation such as ASCAP (American Society of Composers, Authors and Publishers) or BMI (Broadcast Music International) (the American equivalents of the Performing Rights Society in the UK). These licenses cost a set amount and allow the license holder to broadcast any number of songs from a given repertoire, since the license covers all songs within the repertoire.

Performance rights - recordings

A separate copyright exists in the recording of a given song, which rests with its authors, recording artists (the singer and musicians) and perhaps even the producers - i.e. everyone who has contributed to that particular version of the song. When an artist enters into a contract with a record company, the artist's copyright within the recording is passed to the record company in exchange for a royalty fee.

As mentioned above, publishers can grant licenses to radio stations to perform the song, but until the Digital Performance Rights Act of 1995, there existed no copyright in the recording under US law, and record companies were not allowed to distribute licenses for the performance of recordings. The new performance right for recordings is drawn very specifically and applies only to digital, audio -only transmissions of a recording, which makes the Act specifically relevant to the performance of music on the Internet .

Performance rights for the use of music on the Internet depend largely upon the use made of the music, since there is currently no absolute set of rules for licensing music on the Internet. There are compulsory licenses available for some types of digital performances of recordings - the transmission must be non-interactive (the public user cannot receive the recording on request) and it must be a subscription transmission (limited to particular members of the public who pay a fee to receive the transmission). To qualify for a compulsory license, use of the music on a web-site should also satisfy the following criteria -

• There must be no more than 2 consecutive or 3 total selections over a 3-hour period from one sound recording (since this may be taken as digitally "delivering" an album to the public)
  
  
• The service must not publish in advance the titles which will be played
  
  
• The transmitter should not cause the receiver to automatically switch channels
  
  
• All information encoded onto the recording must be transmitted along with it. [3ma-references.asp#38]

If the use of music does not satisfy the above criteria, then no compulsory license will be granted and the site owners may negotiate with the copyright owners (usually the record company) for inclusion. There is no statutory requirement that the recording artists receive any royalty payments from this use of music, and the copyright holders may refuse permission to use the music. This method of copyright control has been criticised by many companies working in Internet music commerce, since the online music industry is growing and fragmenting into areas which are not covered by compulsory licenses, but which still need to use music both fairly and legally.

In June 199ma-references.asp#38, The Digital Media Association (DiMA ) was established to promote the interests of new media and technology firms that enable the digital transmission and marketing of music and multimedia content. One of the organisation's first missions was to lend its support to an amendment to the Digital Performance Right in Sound Recordings Act that would clarify recording companies" ownership of and webcasters" authority to use sound recordings.

The legislation, if ultimately enacted into law, would provide Internet webcasters with statutory licenses for certain uses of sound recordings that are most like traditional broadcast, and would confirm copyright owners" exclusive rights with respect to Internet uses of sound recordings that are interactive or otherwise personal to the consumer.

The relevant provisions of the WIPO bill would amend the Digital Performance Right in Sound Recordings Act (DPRA) and the Copyright Act to:

clarify the applicability of performance rights for noninteractive nonsubscription Internet broadcasting ; provide statutory licenses for those webcasters that adopt reasonable limitations on programming practices that otherwise might tend to displace the purchase of sound recordings; facilitate implementation of technologies to identify and protect sound recordings; ensure that owners of sound recording copyrights maintain exclusive rights over interactive transmissions; and, provide fair compensation to copyright owners for the use of their works, as set by industry negotiation or arbitration. [39]