tautology much? 



Section 101 of the Copyright Act defines a digital trans- mission as "a transmission in whole or in part in a digital or other nonanalog format." 

In practical terms, it is anything other than an analog, over-the-air radio broadcast. It includes not only webcasts and Internet streaming, but satellite radio, and the music channels that often come bundled with many cable and satellite TV packages.


gratuitous orangiosity

A place for either another pull-quote or a shout out to LG.  


statutes & enactments 

The Digital Performance Right in Sound Recording Act of 1995
This amendment to the Copyright Act established a long-sought public performance right in sound recordings applicable to digital transmissions. The passage of the DPRA enabled  American performers and record producers
for the first time in the decades-long struggle between the broadcasting and recording industriesto collect a royalty whenever a song they produced or on which they played or sang  "aired" in a digital format.  Bonneville Int'l Corp. v. Peters gave the sound-recording copyright holders and performers a boost by holding that Internet simulcasts of terrestrial broadcasts, as digital transmissions, were not exempt from the public-performance right granted by the DPRA.

The DPRA also created SoundExchange, the performance-rights administrator that negotiates, collects, and distributes royalty payments from digital broadcasters to artists and record companies.  


example graphicThe Significance of the DPRA
Every sound recording involves two copyrights—one for the underlying composition (indicated by a ©), which protects the writer(s) of the music and the lyrics and the publisher, and one for the performers and sound- recording copyright holder (SCRH), indicated by a (P). 

In that way, an old-school 45-rpm single is an apt metaphor for the way copyright works in a sound recording. Think of the © as the A side and the (P) as the (much less valuable) B side. Until the DPRA, whenever a sound recording was performed publicly, only the composer and publisher received a royalty; the artists and the SRCH, usually the record label, got Jack Bubkus. (For details on the key differences between the rights granted to composers and performers, see The Copyright Act below.)

This is the central issue in the proposed Performance Rights Act(s): performers and SRCHs argue that terrestrial radio, as well as digital broadcasters, should have to ante up a performance royalty from which they’ve been exempt all these years.  The reasoning is two-fold. First, as both record sales and terrestrial radio audiences decline, the broadcasters' claim that the promotional value of airplay compensates artists becomes less persuasive. Second, every other major industrialzed nation has a performance right for terrestrial, as well as digital, broadcasts. 

The Digital Millennium Copyright Act (DMCA) of 1998
The DMCA sought to address many significant technology-related copyright issues, including the establishment of "safe harbors" that enable Internet Service Providers to avoid liability through the timely removal of infringing content from their sites in response to copyright-holder notices; the Act also made it illegal to circumvent or teach others how to defeat technological "locks" designed to prevent infringement. Title IV of the Act established different categories, and consequently different royalty rates, for various forms of digital transmissions, via the Copyright Royalty Board (CRB)

Where the DPRA granted a performance royalty right in digital transmissions, the DMCA determined how those royalties would be calculated and collected. For example, section 801(b)(1) established a standard for CRB Judges to use when setting public performance royalty rates for cable and satellite ratio. This is a more multifactored test than the "willing buyer/willing seller" standard used to set the rates for Internet radio stations and webcasters.  

The Copyright Act
The key provisions of the Copyright Act implicated by the performance rights debate are section 106, which covers the so-called "bundle of rights" granted to all copyright holders, and section 114, which defines the scope of rights with respect to sound recordings. 

The exclusive rights enumerated under section 106 enable a copyright holder to either engage in or authorize others to engage in the conduct described in each subsection. These include: (1) reproduction, the right to make copies or phonorecords of a work; (2) adaptation, the right to prepare so-called “derivative works,” like translations, compilations, and movie versions of novels; and (3) distribution,  the ability to control and decide how the work is sold, leased or lent to the consuming public. Subsection (4) deals with the right of public performance, but only in writings. (Subsection (5) covers public display, which is not implicated by this issue.) Subsection (6), added when the DPRA was enacted, provides for a public-performance right in digitally transmitted sound recordings.

Section 114 deals with the scope of exclusive rights in sound recordings, setting forth what SRCHs (usually record companies) do and do not get in terms of copyright protection. Primarily, it provides that a sound recording copyright holder (SRCH) has exclusive rights of reproduction, distribution, and the preparation of derivative works.  But subsection (a) of the provision makes a special point of the fact that SRCHs do not have a public performance right in terrestrial radio transmissions.

The Signifcance of Sections 106 and 114
In the performance-rights context, the significance of the interplay between sections 106 and 114 depends on whether the musical work at issue is a composition or a sound recording.

Composers, lyricists, and publishers, whose songs the law recognizes and protectes as "works of authorship," have always enjoyed the full bundle of exclusive rights, including public performance. Performers and producers (who are not songwriters) also get exclusive rights with respect to the reproduction,
adaptation, and distribution of their sound recordings; in fact, it is the infringement of these rights under which the RIAA has brought suit for unauthorized file-sharing and sampling.  

However, section 114 of the Copyright Act, while acknowledging the performance right in digitally transmitted public performances, expressly denies performers and SCRHs an exclusive right in over-the-air (and any other non-digitally transmitted) public performances. In other words, when a song plays on terrestrial radio the composers get paid, but the recording artists do not.


The Small Webcaster Settlement Act of 2002
Without setting specific fees or royalty rates, this Act made it possible for small webcasters and copyright holders to negotiate and enter into voluntary licensing agrements. It also authorized SoundExchange to negotiate on behalv of the SRCHs. 

The agreement reached under the Act gave small webcasters the ability to avoid paying royalty rates set by the Librarian of Congress and instead pay either a minimum fee or royalties based on a percentage of their revenuse, expenses, or a combination of the two. The terms of the agreement appled from October 1998 through December 2004


SOurces 

17 U.S.C. §§ 101, 106, 114

Copyright Office Summary of the Digital Millennium Copyright Act of 1998

Cassondra C. Anderson, “We Can Work It Out:” A Chance to Level the Playing Field for Radio Broadcasters11 N.C. J.L. & Tech. On. 72, 82 (2009)

Music Copyright Guide, Digital Performance Right in Sound Recordings Act (DPRA) (last visited Apr. 18, 2010)

17 U.S.C. § 512

17 U.S.C. §§ 1201, 1202

Chapter 8 of The Copyright Act

The Small Webcaster Settlement Act of 2002