The Copyright Act is continually subject to pressures created by technological and economic forces. Here’s yet another example.
Composers and producers are urging Congress to change copyright law so that music airing in a audio-visual downloads are considered public performances and, therefore, deserving of royalty compensation. Federal law, of course, grants owners of copyrights the exclusive right to perform their works in public; however, a New York federal court held in 1977 that music downloads are not to be construed as performances but merely mechanical reproductions. The decision is of great concern to various song writing and publishing groups, including the Association of Independent Music Publishers (AIMP) and Broadcast Music, Inc. (BMI), who have recently written Congress urging it to change copyright law to enable their members to collect royalties from digital downloads.
The groups wrote that “songwriters and composers now receive public performing right royalties for their musical works when they are transmitted as part of audio visual broadcast and cable programming. However, as delivery of such content shifts to online platforms, and often in the form of transmissions via digital downloads, these music creators are concerned that they will not receive compensation for the performances of their works as they would from broadcast, satellite and cable distribution. The mere choice by a consumer to view his or her favorite movie or television show in a non-linear, time- or space-shifted fashion, whether “streamed” online or from a downloaded digital file accessed while commuting or viewing in a coffee shop, should not determine whether a songwriter or composer of the music accompanying such programming receives public performing right royalties.”
One might question whether private listening in a car or in a coffee shop is a “performance” in the traditional sense of the word. Nevertheless, the stakes are high and maybe worth, according to Reuters, as much as $100 million dollars per year.
The Digital Media Association (DMA) has taken a contrary position, arguing that public performance rights arise only where there is an actual, audible, and public performance. The DMA observed that digital downloads simply substitute for traditional physical products such as DVD’s or CD’s and that producers of downloads are already obligated to pay synchronization and distribution royalties to songwriters and music publishers. Broadening songwriters’ and composers’ rights to instances where no performance occurs is, according the DMA, double-dipping.
The House Judiciary Committee is considering a hearing on the issue.
— Adam G. Garson, Esq.