No performance right in downloads?

Billboard:

Several sources tell Billboard.biz that a federal court has ruled that there is no performance right for publishers and songwriters in a download. The decision came during a proceeding to determine royalty rates between ASCAP and digital services AOL, RealNetworks and Yahoo!.

The decision, if not reversed on appeal, could detrimentally affect future performance fees as more television shows become available for downloading over the Internet (which would not require payment of a royalty) and less available for re-broadcasts (which would require payment of a royalty).

Hat tip to Legal Fixation. Okay, so what are we talking about here? BitLaw explains this basic stuff well:

The public performance right allows the copyright holder to control the public performance of certain copyrighted works. The scope of the performance right is limited to [certain enumerated] works . . .
Under the public performance right, a copyright holder is allowed to control when the work is performed “publicly.” A performance is considered “public” when the work is performed in a “place open to the public or at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered.” A performance is also considered to be public if it is transmitted to multiple locations, such as through television and radio. Thus, it would be a violation of the public performance right in a motion picture to rent a video and to show it in a public park or theater without obtaining a license from the copyright holder. In contrast, the performance of the video on a home TV where friends and family are gathered would not be considered a “public” performance and would not be prohibited under the Copyright Act.

If entertainment content providers can’t get this reversed, or a quick amendment (as they usually have no difficulty achieving) to the Copyright Act, look for studio-sourced downloading of Hollywood-generated culture to slow to a trickle, or become prohibitively expensive.

Seeing as how Hollywood can’t let that happen — because unauthorized copies will simply replace the legit versions, and it’s increasingly clear there’s nothing anyone can do to stop it in the long run — here’s betting on a full court press in Congress. That the U.S. Congress we’re talking about here, which, when Hollywood beckons, never fails to answer — so don’t sweat it.

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Author:Ron Coleman

I write this blog.

2 Responses to “No performance right in downloads?”

  1. SKM
    May 5, 2007 at 5:10 pm #

    I think the real issue here is the convoluted nature of music copyrights. ASCAP (like its counterparts at BMI and SESAC) only collects royalties on “public performances” of musical compositions, while NMPA collects royalties on “reproductions” and “distributions” of compositions.

    Judge Conner isn’t saying that downloads are outside the reach of copyright law. Instead, he’s just ruling that downloads are outside the scope of ASCAP’s royalty collection rights… in response to a declaratory action by ASCAP in the course of a rate-setting proceeding (since ASCAP is still subject to an antitrust consent decree).

    A copy of the decision may still be available at:

    http://interactionlaw.com/documentos/US_v_ASCAP_41-1395_4-25-07_Order.pdf

    As for the television discussion, I think Billboard is slightly off-base. Music in TV and film is subject to synchronization licenses (matching moving images and music) instead of reproduction licenses (which are limited to “phonorecords”). Synch licenses are always privately negotiated in the US while mechanicals are bound by statute (Section 115 of the Copyright Act). ASCAP/BMI/SESAC will still get their public performance royalties when the TV show or film is broadcast or shown.

  2. May 5, 2007 at 9:46 pm #

    Great comment, and thanks — you’ve clarified a lot.