Sunday, April 15, 2007

Are Song Writers Entitled to a "Public Performance" Royalty When a Song is Downloaded?

Are song writers entitled to a "public performance" copyright royalty when their songs are downloaded? A case pending in New York federal court will be answering that question. For an excellent discussion of the subject, see this article by Steve Gordon", noted entertainment lawyer and expert in digital music, and regular columnist for Digital Music News, which appeared on April 13th on The Register:

Are songwriters double-dipping?
When a performance isn't a performance
By Steve Gordon
Published Friday 13th April 2007 08:28 GMT

Should songwriters get paid for a public performance when you download a song? Thanks to a New York legal case, we'll soon find out.

In the United States, three organizations license "public performance" rights for music on behalf of their music publisher and songwriter members: ASCAP, BMI and SESAC. Typical public performances include live performance in clubs and concert halls, radio, television, and streaming music on the Web. Until now, "downloading" music has not been considered to be a public performance.

But in late February, ASCAP filed papers in federal court in New York demanding the court rule that downloading music constitutes a "public performance" for which its songwriter and publisher members should be paid. AOL, Real Networks and Yahoo have responded that downloads are not public performances, and that ASCAP has no right to demand that they pay public performance royalties for downloads.

This article analyses the legal basis for ASCAP's claim, which is tenuous, and the strong economic forces that compelled them to try to add downloads to its income pool. Those reasons, surprisingly, may have more to do with the future of how people will watch TV programs and movies, rather than listen to music.

Complete Article

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

1 comment:

recordjackethistorian said...

The much older legal device called a "Mechanical Licene" satisfied the performance royalty question for recorded music for many years. It attached a copyright to a device (the CD or LP) and provided for payment per item sold. Mechanical licenses are automatic I believe at the present moment.

The artists would be entitled to a public performance royalty if the track were streamed in the manner of a webcast.

The difference beeing that the webcast (being essentially the same as a broadcast) is ephemeral, that is it has no physical existence apart for the moment the listener hears it.

A downloaded file on the other hand is meant to be kept as a physical incarnation (all be it in the form of bits and bytes on a computer hard drive) as a file or copied to other permanent media.

The difference is clear to anyone who is technology and copyright savy and utterly incomprehensible to anyone not familiar with both areas.

So, definitely NO, they should not get a performance royalty for downloaded music. It is double dipping!

a.k.a. recordjackethistorian