If you’re a copyright nerd (wait, you’re not?), you may have come across the issue of “pre-’72s.” In a nutshell, recordings made before February 15, 1972 are not protected by federal law, which can complicate how—or whether—royalties are paid for certain uses, like plays on internet or satellite radio.
Many people are unaware that there wasn’t even a copyright for recordings until 1972. Well, that’s not entirely true—some sound recordings made before ’72 are copyrighted at the state level. Still, federal protections are relatively new. At least when compared to compositions, which have been protected since the early 1800s (public performances of musical works came under federal law in 1897).
Debates about pre-’72 recordings might seem arcane, but there are major implications for today’s music ecosystem. First there’s artist compensation. The absence of a performance right for pre-’72s means that there’s no guarantee that recording artists are going to get paid fairly for the use of their work when played on Internet or satellite radio. (AM/FM broadcasters aren’t obligated to pay performers anything, though they do pay songwriters; more info on this crazy loophole here.) The lack of federal recognition also makes it more complicated for services to obtain a license to play music—and where there is no permission, there’s potential liability.
Another year, another white-knuckle thrill ride in the world of music policy. There was so much going on in 2013 that if you blinked, you’d be in danger of being clobbered by the next development. And that’s just on the legislative, executive and federal agency side—we could (and might!) compile a separate list of marketplace and legal developments.
Below is an instant replay of some of 2013’s biggest policy episodes. Order does not connote rank, but feel free to debate it anyway…
Reactions continue to arrive to the introduction of North Carolina Democrat Rep. Mel Watt’s latest bill to require radio to pay a streaming performance royalty for airing copyright covered music. How much attention the measure will get in Congress is unclear, since committees related to communications and broadcasting have postponed their meetings originally slated for this week due to the government shutdown.
NABEVP Communications Dennis Wharton says the trade group “respectfully” opposes the “Free Market Royalty Act,” and appreciates the support of 183 lawmakers who back the “Local Radio Freedom Act,” a nonbinding resolution opposing a new performance royalty for radio. read more
This week, Clear Channel Communications, the nation’s largest broadcaster, signed an unprecedented strategic partnership with major record label Warner Music Group. For the first time ever, Warner’s roster of performers will be compensated for plays on American terrestrial (AM/FM) radio. (Currently, only songwriters and publishers are paid for radio airplay; performers and record labels recieve nothing.)
Clear Channel chairman and chief execute Robert Pittman lauds the move as “redefine[ing] the relationship between music companies and radio.” But in reality, the deal—like those struck by Clear Channel and Fleetwood Mac , Big Machine Records, and Innovative Leisure—is frustratingly limited. For one, it will not allow for the collection of money owed to artists for international radio play. Because the US doesnt pay foreign performers and sound recording owners for radio play on our shores, American artists receive no money when their music is played abroad. Reciprocity in royalties would require an act of Congress, something that the major broadcasters have fought tooth and nail to avoid. Never mind that the rest of the developed world compensates performers (with notable exceptions including North Korea and Iran). If Pittman truly wants to “redefine relationships,” he should encourage compensating performers across the board so that America no longer gives away a valuable export free of charge on the world market.
Having had time to digest a 100+ page report on digital copyright policy, we can report back that this “green paper” covers a range of issues around copyright and technology with an understanding of the complexities for creators. The report is a product of the Department of Commerce’s Internet Policy Task Force (IPTF) with input from the U.S. Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA). We wouldn’t say that the green paper is a good beach read — and not just because it’s after Labor Day — but it does lay out very clearly the challenges and opportunities of the digital marketplace.
Of course, we’re mostly concerned about how these issues impact musicians and composers. This is why we’re also delighted to announce that one of the contributors to this report, Shira Perlmutter, Chief Policy Officer and Director of International Affairs at USPTO, is going to give a keynote at the Future of Music Summit (Oct. 28-29, Georgetown University, Washington, DC). Don’t miss the chance to hear from the horse’s mouth about how executive branch agencies are dealing with the issues that impact YOUR livelihood — registration is open now (with a limited number of musician scholarships available)!
Last week, in an event that was called “the first of its kind,” Fleetwood Mac entered into a direct deal with broadcasting behemoth Clear Channel, wherein the celebrated rockers will receive a share of advertising revenue for spins of their new EP, and Clear Channel will save on performance royalties for its online broadcast and streaming services. (Keep in mind that AM/FM radio is not obligated to compensate performers, but under the terms of this deal, Fleetwood Mac will receive revenue from over-the-air plays.) read more
Last week, the Federal Communications Commission (FCC) released a public notice announcing a filing window for applications for new low power FM (LPFM) radio stations. LPFMs are community-based, non-commercial radio stations that operate at 100 watts or less and reach a radius of 3 to 7 miles (check out our LPFM fact sheet for more info).
These small but mighty stations are an alternative to broadcasters that seem to play the same five songs on infinite repeat, and provide opportunities for local and niche artists to recieve airplay. LPFMs also offer a wide variety of small, independent organizations — including schools, civic groups, churches, and non-profits — a platform from which to engage with local communities.
The new low power application has a few important changes from the past. First, new stations will be permitted in urban areas for the first time ever. As long as an applicant can prove that their station would cause no harmful interference, the FCC will grant a special waiver. This new change will double or triple the number of new stations available, and it’s a major victory for Prometheus and our allies who fought for it.
Additionally, the FCC will offer special incentives to stations that provide local programming, and who maintain publicly accessible studios — a focus on community-driven broadcasting that we can really get behind.
In June 2012, the Supreme Court decided in FCC v. Fox that the FCC’s indecency policy was too vague and violated broadcasters’ due process rights by not providing “fair notice” of clear rules. FMC and the Center For Creative Voices in Media filed an amicus brief in the case, arguing that the FCC regulation was applied so arbitrarily that it chills creative expression. Now, a year later, we — along with the rest of the interested public — have the opportunity to tell the FCC what we think their indecency policy should be. The following are comments submitted to the FCC in their rulemaking proceedings.