Copyright and Podcasting:The Impact of Regulation on New

Communication Technologies

Edward L. Carter, J.D.

Scott Lunt, M.A. candidate

Brigham Young University

Setting the Scene

Streaming at BYU? Webcasting licenses convoluted Podcasting licensing non-existent

Copyright ClauseU.S. Constitution, art. I, sec. 8, cl. 8

Congress is authorized “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Copyright scholar Lawrence Lessig

“Unlike every other power-granting clause, this was the only power-granting clause that specified the means and purpose to which the power was devoted. Congress was not given the power simply to enact copyrights. Nor was it simply given the power to enact copyrights for limited times. Congress was given the power ‘to promote the Progress of Science’ by granting, not to publishers, but to authors, ‘exclusive Right[s]’ ‘for limited Times.’”

Threshold for copyright protection

Originality– “[W]ork was independently created by the author (as

opposed to copied from other works), and that it posses at least some minimum degree of creativity.” (U.S. Supreme Court)

Fixation– “[E]mbodiment in a copy or phonorecord … is

sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.” (U.S. Supreme Court)

Works of authorship

Literary works Musical works Dramatic works, including music Pantomimes and choreographic works Pictorial, graphic and sculptural works Motion pictures Sound recordings Architectural works

Exclusive rights of copyright owner

Reproduction Preparation of derivative works Public distribution Public performance Public display Public digital performance of a sound recording

How to obtain copyright protection

Permissive to register with Register of Copyrights and deposit with Lib. of Congress

Permissive to use © Copyright “subsists from creation” of a work But no suit for infringement until registration

(form, fee and 2 copies to Lib. of Congress)

Remedies for infringement

Injunctions Impounding Monetary damages Costs and attorney fees Criminal liability only if:

– Commercial advantage or private financial gain, or– Reproduce or distribute 1 or more copies of

phonorecords with total retail value of $1,000+

Sound recording copyrights

Sound recordings given no copyright protection until 1971

Even then, only reproduction and distribution (not public performance) protected

Even today, broadcasters can play recorded music without compensating copyright holders in sound recording (they do compensate composers for composition copyright)

Sound recording copyrights

In 1995 Congress created limited right to publicly perform digital audio sound recording

Concern was that electronic media facilitated copyright infringement (digital nature, ease of copying and distributing, quality of recording)

Copyright and podcasting

Today copyright law, especially in the recorded music arena, is more about compensating corporate record labels than promoting societal progress through providing an incentive for artistic expression

But podcasting poses an opportunity to get back to constitutional purpose of copyright

Copyright and podcasting

Result of regulation is that podcasts today are largely talk rather than music

There is “podsafe” music as well (not represented by performance rights agencies)

Streaming Radio (RealNetworks)

Podcast Listing (podcast alley)

iTunes podcast list

Do they want music?

“If people call it music and it has a purpose other than filling the pockets of the major labels we hope to share it with you.” (#20 - Music Nerve)

Rock n Roll Geek Show (podsafe) - 156,000 downloads in Jan 2005

Podsafe Music Network (PodShow)

Collection of artists and podcasters Curry - $8.9 m venture capital (2005) Offices in San Francisco (now hiring!)

Manufacturer or Service Provider?

Record companies need to see themselves more as a service provider. Providing entertainment in ways their customers want.

Negotiating copyright law

Music podcaster today would have to get licensing:– Harry Fox Agency (maybe) for reproduction and

distribution of compositions– BMI, ASCAP or SESAC for public performance of

compositions– SoundExchange for public performance of sound

recordings (but no statutory license is available here, according to SoundExchange)

Statutory license

For eligible nonsubscription transmission:– Noninteractive– Entertainment– Sound recording performance complement– No archived program less than 5 hours– No archives available more than 2 weeks– If continuous loop, no program less than 3 hours– Not induce making of phonorecord by recipient (this

a problem for podcasters)

Bottom line

Music industry not ready to embrace podcasting

Forces podcasters to make choice: no music, or unlicensed music?

Courts may have to address issue of when treating communications media differently based on technology is appropriate