The Six Rights of Copyright – Part VI: The Right to Digital Public Performance
The Bundle of Rights That Make Up Copyright
The right to reproduce the copyrighted work
The right to prepare derivative works based upon the work
The right to distribute copies of the work to the public
The right to publicly perform the copyrighted work
The right to publicly display the copyrighted work
(sound recording only) The right to digitally transmit to publicly perform the copyrighted work
We’re individually exploring each of these rights to get behind the opaque curtain of copyright. An understanding of each right and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.
There are a couple words of caution. First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.). Second, these are exclusive rights. The law allows the copyright holder only to exercise these rights.
VI: The Right to Digital Public Performance of Sound Recordings
The right to digital public performance of sound recordings is an extension of the traditional right to public performance. Copyright holders have the exclusive right to publicly perform their sound recordings–a particular recording of a musical composition (e.g. master recording, masters)–via digital transmission (e.g. internet, satellite radio). The older right to public performance specifically excludes sound recordings. This right is limited because it does not cover analog transmissions such as traditional radio or television.
Why the Right to Digital Public Performance?
Congress created this copyright protection (DPRSRA legislation) because of advances in technology. High quality digital copies of sound recordings became easy and cheap to make in the 1990’s. Suddenly, people could readily profit from this practice and artists had little legal recourse. The digital public performance right creates a partial solution for this gap in copyright law. Groups that want to legally play sound recordings via digital transmission (think Spotify and Pandora) now must pay for that right. It was perfectly legal to not pay prior to this legal update. An organization called Sound Exchange currently administers the licensing of sound recordings.
There is a three-tier system that sets the licensing fee for sound recordings. The first tier doesn’t require certain broadcasters to pay any licensing fees. The second tier requires broadcasters to pay a “statutory” licensing fee set by the Copyright Board. The third tier requires broadcasters to negotiate the licensing fee directly with the copyright holders. Much of the highly publicized dispute over fees for sound recordings is about this second tier payment structure. Artists, broadcasters, and other interested groups vehemently disagree about the correct licensing fee amount and how to calculate that fee.
Limitations on the Right to Public Display
The most important limitation on copyright protection for sound recordings is that it only covers digital transmission. It’s business as usual for analog broadcasters in radio and television. The details of the digital public performance right also has many more nuances. It’s a fair complaint by sound recording copyright holders that they’re treated unfairly when compared to musical composition copyright holders. It’s also safe to say that no one (artists, broadcasters, and copyright holders) is actually satisfied with this copyright protection.
Ari Good, JD LLM, is a Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters.
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Image by Doug Symington