Yuriko Tada

I. Introduction

My friend John is the vocalist and songwriter for a rock band that enjoyed modest radio success some years ago. Every three months, John receives a check from BMI, one of three main companies who administer the system of performance royalties. ¹ Enclosed with the check is an itemized statement of the air play that each of the band’s registered songs has received, and how much money John received each time. On the most recent statements, royalties have begun to appear for web broadcasts of songs.

For some musicians, performance royalties are a primary source of income. However, such royalties are reserved for the songwriters. Musicians who do not receive songwriting credit – though they may have spent days in the studio giving life to otherwise character-less lyrics and chords – will receive no checks from BMI for performance royalties. Income for these musicians comes from record sales, and then only if sales are high enough to allow the record company to recoup first. So members of John’s band who contributed time and talent but no lyrics or tunes must settle for musician credits and day jobs.

This paper argues that depriving singers/musicians of performance royalties for broadcasts is an anachronism rooted in the origins of modern American copyright law, and that the original rationales are no longer valid. However, this paper also suggests that developments in copyright law on the Internet will help to blur the distinction between performance (from which singers/musicians do not profit) and distribution (from which singers/musicians do), and therefore prompt reconsideration of existing copyright laws. The ideal result would be for the law to create at last a public performance right in sound recordings and thus correct an archaic imbalance.

This specific area of copyright law is a good example of how the Internet requires an innovative application of existing laws, but it also demonstrates how those innovations can reflect back into and change laws in the non-Internet sphere. In other words, legal changes made necessary by the Internet might soon be considered necessary in other areas.

II. Performance and Reproduction of Songs and Sound Recordings: Definitions

Copyright law in music makes two crucial distinctions. First, it distinguishes between the composition itself and sound recordings of the composition. The composition consists of the notes and lyrics that make up the song. For example, the song "My Way" was written by Paul Anka, Jacques Revaux, Claude François, and Gilles Thibault. ² Those songwriters (had they not sold their publishing rights) would be the copyright owners of the composition. When Frank Sinatra recorded the song in 1968, he and/or his record company were the copyright owners of the sound recording. ³ Eleven years later, when Sid Vicious covered the song, he and/or his record company owned the copyright to the new recording of the song. ⁴

The second important distinction in copyright law is between the performance and reproduction of musical works. Under the 1976 Copyright Act, to perform means to "recite, render, play, dance or act, either directly or by means of any device or process." ⁵ Copyright law is implicated only when the performance is public. For copyright purposes, broadcast of a song over the radio constitutes a public performance. Reproduction and distribution occurs when a copy of a sound recording is made and sold. Record companies engage in reproduction and distribution when they press and distribute CDs or records.

Typically, musical compositions are owned by the songwriter(s) and/or publishers. (Publishers come into the picture when a company such as Warner Tamerlane buys the publishing rights to a song.) For simplicity, I will refer to the owners of musical compositions as the songwriters. Sound recordings, on the other hand, are usually owned by the band as a whole or the record company. For convenience I will refer to the owners of sound recordings as the musicians. ⁶

Under current copyright law, the exclusive right to reproduce copyrighted works applies both to musical compositions and to sound recordings. The copyright owner of the musical composition -- the songwriters -- receives mechanical royalties for the reproduction and distribution of any recording of that composition. For example, Paul Anka received mechanical royalties both for Sinatra’s "My Way," and for Vicious’s. These mechanicals are administered by publishers or by the Harry Fox Agency, Inc., ⁷ the wholly-owned licensing subsidiary of the National Music Publishers' Association, Inc. Similarly, the copyright owner of a sound recording -- usually the musicians -- receives mechanical royalties for the reproduction and distribution of that recording. However, the exclusive right of public performance of copyrighted works generally applies only to musical compositions, not to sound recordings. ⁸ Therefore owners of a musical composition receive performance royalties each time that song is publicly performed, but owners of sound recordings do not. So Paul Anka also receives royalties each time either Sinatra’s or Vicious’s recordings of "My Way" are played on the radio, but neither Sinatra’s nor Vicious’s estate receives anything.

This paper takes the position that this imbalance in copyright law is based on historical notions of performance and distribution that are no longer relevant, but that advances in technology may help to recast those notions and correct the imbalance. Traditionally the distinction between performance and reproduction was clear, and although people from time to time took issue with the imbalance between the categories, few were confused as to the categories themselves. However, because the nature of the Internet blurs the distinction between music reproduction and performance, it forces us to reconsider those definitions and thereby reconsider copyright law. Should these changes (some of which have begun to materialize) cast a new light on copyright laws in traditional, non-Internet contexts, they will provide a good example of how new applications of old laws might finally effect change in the old laws themselves.

III. Brief Historical Background

In 1909, Congress passed the first comprehensive federal copyright statute to provide the holder of a copyright with exclusive rights in copyrighted works. ⁹ Whereas previous laws had focused on the written word, the 1909 Copyright Act authorized the protection of musical works and granted exclusive performance rights to the composer. ¹⁰

This traditional system of copyright law, which deprives singers and musicians of performance royalties, is rooted in conceptions of copyright law and performance value which pre-date radio and other broadcast media. Performers of classical compositions "were less involved with the creation of music than they are [today]. . . . [T]he vast majority of the creative energy and the musical expression in classical works lies in the written score, where music is meticulously described. Thus, the copyright system once accurately reflected composers' and performers' respective roles in the creation of music . . . ." ¹¹

Before the advent of radio, musical compositions were disseminated by the distribution and public performance of sheet music. Typically the performer was not also the composer. Composers of songs were considered creators of an original work of art – the musical composition itself. A musician could learn to perform the song by reading the sheet music, but such a performance was generally not seen by the law as a work of art. The performance was merely a conduit for the sheet music, a medium by which the public could experience the songwriter’s art. Performers were more or less interchangeable. Copyright law therefore naturally developed to protect the songwriter’s rights in his or her composition, ¹² just as it would protect an author’s rights in a novel.

As technology changed, so did the nature of the music industry. With the advent of radio and musical recordings (phonorecords), performers played an increasingly important role in the commercial success of songs. In part this was due to the changing face of popular music: compositions were musically less intricate, with a simplicity of tune that offered more opportunity for artistic interpretation by performers. Radio and sound recordings meant that people across the country could become acquainted with particular performers, and the first true music industry stars began to emerge. A cycle developed in which composers began to write songs to showcase the talents of certain performers, whose recordings in turn made the songs popular. Listeners developed preferences for certain recordings as artistically superior, as discrete works of art in themselves.

However, through these changes in media, American copyright law remained stagnant. ¹³ It did not evolve to account for the changing role of the performer vis à vis the songwriter and failed to recognize individual performances of songs, captured on tape, as copyrightable works of art. Though all of popular culture viewed performers as artists in their own rights, American copyright law continued to view them merely as vehicles. (It is something like saying that Bernini, in sculpting The Rape of Persephone, did not create a work of art distinct from the myth that inspired the sculpture – and that in fact the anonymous originators of the myth were responsible for the artistic value of Bernini’s sculpture. ¹⁴) No law granted any federal copyright protection to sound recordings until Congress passed the Sound Recordings Act of 1971. ¹⁵ The Act was passed in response to advances in duplicating technology which made phonorecord piracy inexpensive and profitable; as a result it focused on reproduction rights only and did not grant exclusive rights of public performance to copyright owners of sound recordings.

The advent of the computer age, and of the Internet in particular, has led to the beginnings of change. In 1992, Congress enacted the Audio Home Recording Act ("AHRA"). The AHRA was intended in large part to address the issue of home taping of copyrighted music and to establish a framework for ensuring that holders of copyright in musical works would still receive royalty payments. ¹⁶ It exempted from copyright infringement consumers who copied music for noncommercial uses; for example, making a tape copy of a CD that I have purchased, in order to listen to it in my car’s tape deck, would be acceptable. However, I could not make a copy of that copy to give to a friend, who had not bought the CD and therefore not contributed to the copyright owner’s royalties. Now, I can put a CD-quality copy online for millions to download without paying royalties. This paper argues that doing so should be a similar copyright violation.

More directly on point, the Digital Performance Right in Sound Recordings Act was passed in 1995 as PL 104-39. For the first time, performance artists were granted an exclusive performance right in sound recordings. ¹⁷ However, the right is limited to sound recordings performed publicly by means of a digital subscription service. The Act still did not provide for a performance right for sound recordings transmitted by traditional radio or television, or for broadcasts of background music, such as Muzak.

IV. The Role of the Internet in the Evolution of Copyright Law in Music

This paper argues that the contributions of singers/musicians to the recording of a song is an integral part of the creation of a work of art. These contributions – the singer’s style, timbre, and interpretation – are acts of artistic creation in the same way that writing lyrics, chiseling marble, and applying paints are. The composition is the idea of a painting; each performed note is a brushstroke; and the recording is the finished canvas.

Therefore, this paper contends that although depriving singers/musicians of performance royalties for broadcasts may have been rational at one point, it is no longer morally defensible, and should not be legally defensible either. The rule is an anachronism rooted in the sheet music origins of copyright law, and the original rationale is no longer applicable. Whereas once songs became popular based more or less on the notations contained in the sheet music, many songs that have since became popular would not have done so if not for the persona, talent, and delivery of the singers and musicians. In casual conversation, most people are able to list many examples of songs whose success arguably depended at least as much on the performer as on the composition itself. Elvis Presley, Patsy Cline, and Frank Sinatra are archetypal examples of singers who wrote few or none of their songs, but whose delivery made songs uniquely successful and uniquely theirs in a way that assures that certain songs will forever be associated with those singers.

Again, "My Way" provides a good illustration. The soaring, triumphant pride (and lifestyle) that Sinatra lent to "My Way" made the song not just enormously popular but also his signature. That version has little in common with the mocking, self-destructive defiance of the Vicious cover, which became something of a punk anthem but never achieved commercial success. Ask people whose song it is, and few will name Paul Anka; for most people, the song belongs to Frank Sinatra. Even Sex Pistols fans thought it was Frank Sinatra’s song that Sid Vicious was covering.

However, this paper also suggests that developments in copyright law on the Internet will blur the distinction between performance and distribution. At a minimum the Internet will require continued reconsideration of existing copyright laws; what might result is hard to predict. The law might simply designate certain kinds of transmissions as reproduction only, rather than as performance or as a combination with divisible royalties. Better still, the Internet might finally encourage creation of a public performance right in sound recordings and finally correct the longstanding imbalance. The Digital Performance Right in Sound Recordings Act was a step in that direction. Either result would go a long way toward remedying an archaic inequality, affirmatively benefitting musicians and record companies without much disadvantaging songwriters. It would also do much to address the likely drop in sales of actual CDs and records, and therefore ensure that musicians and record companies do not lose profits as a result of online music distribution. It might also (though such drastic change is usually hard to come by) help to restructure the underlying rules of copyright law in music from the ground up.

Why does the Internet offer this possibility, when other advances in media effected no such potential? Part of the answer has to do with the nature of the advance, which is unlike previous changes in media. The nature of music delivery on the Internet demands a reworking of traditional copyright laws because two distinctions necessary to the conceptions underlying those laws lose their meaning online. First, online transmission of music shrinks the gap between the technical definitions of reproduction and performance. Second, online transmission of music shrinks the related but distinct temporal gap between listening to and purchasing music.

A. Reproduction and Performance

"Performance" of music over the Internet is difficult to divorce from "reproduction." Dissemination of music over the Internet makes the act of copying a song automatic; the digital representation of a song is copied into Random Access Memory (RAM) so that it can be played. Therefore music transmitted online often results in a copy on the receiver’s hard drive. The user’s decision to listen to a song online is simultaneously (and not always consciously) a decision to copy it. No longer is there a voluntary, affirmative act necessary to move from public performance to reproduction.

Though the point is far from undisputed, courts have held that loading a computer program into a computer’s RAM was the making of a copy for purposes of copyright law. ¹⁸ "If this holding is widely adopted, a ‘copy’ may be created under United States law at each stage of transmission of a work through the Internet. The [WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty] would strengthen copyright holders' rights of ‘distribution’. . . . The ubiquitous nature of "copying" in the course of physical transmission gives the copyright owner potentially very strong rights with respect to the movement of copyrighted material through the Internet." ¹⁹

Organizations such as the Harry Fox Agency, who distribute mechanical royalties to copyright owners of compositions, argue that a download is a reproduction (for which owners of the sound recording and of the composition should receive mechanical royalties). ²⁰ The Harry Fox Agency is "currently negotiating an agreement with its international counterparts that would make it clear that mechanical licenses will be collected from the source of the transmission -- that is, the web site offering the digital phonorecord deliveries - regardless of where in the world the transmission recipient receives his or her copy of the recording." ²¹ Issuance of such licenses are subject to the compulsory license provision of the Copyright Act, ²² which provides that as long as records of a composition have been distributed (in the United States), anyone may obtain a license to record the song, at a fee established by law. Each digital transmission that results in a phonorecord of a song should therefore be subject to the statutory rate, currently 1.35 cents per minute of playing time, or 7.1 cents.

However, organizations such as BMI and ASCAP consider all transmissions to be performances, even if the transmission is a download. ²³ These organizations therefore require websites (25) to buy performance licenses before using songs that belong to BMI or ASCAP. ²⁵ However, both these organizations recognize the dual nature of a music transmission over the Internet. A spokesperson for BMI acknowledged the possibility that some online transmissions of music (straight downloads as opposed to streaming, for example) might also qualify as reproductions, but noted (i) that such a designation would be in addition to, rather than instead of, its status as a performance; and (ii) that BMI was concerned only with administering the performance right. ²⁶ ASCAP goes so far as to note that "Internet transmissions also involve the reproduction and distribution rights in musical works," and refers licensees to the Harry Fox Agency. ²⁷ The line between broadcast and distribution is less distinct.

Ideally, an online transmission that results in a copy should be considered something like a record sale, which falls under the category of reproduction/distribution and implicates mechanical royalties. The designation has become increasingly important, especially because the technology exists to make downloaded songs a true threat to the conventional sale of sound recordings. ²⁸ At least one company is well into production of a portable device which will allow users to download high-quality music files from the Internet for later replay. This past September, Diamond Multimedia Systems Inc. announced that in November it would begin shipping the Rio PMP 300. The Rio PMP is a portable device that can hold up to an hour of music in a compressed audio format known as MPEG-1 Layer 3, or just MP3. One minute of near-CD quality music in MP3 requires only 1 MB, or one-tenth the space it would take on a CD. "The format is one of the first digital ‘products’ that is small enough to download from the Net and valuable at the same time, creating an Internet distribution product that consumers may be willing to pay for." ²⁹ In October, the Recording Industry Association of America (RIAA) filed suit against Diamond, arguing that the Rio PMP violated the Audio Home Recording Act (AHRA). RIAA won a temporary restraining order halting production of the Rio PMP, but the order was lifted and production began again. Diamond plans to begin shipping the Rio PMP almost on schedule, beginning this month.

The Rio PMP represents a threat to traditional avenues of business in the music industry. Because it is likely that the Rio is just the first of such threats, the appropriate response is not to try to squash the threat, but rather to rethink those traditional avenues. A reworking of copyright law in music would accommodate products as inevitable as the Rio, and allow all parts of the music industry to continue to flourish.

B. Listening and Purchasing

The blurring of the distinction between listening and purchasing is so closely connected to the argument above as to seem almost the same. The nature of the Internet means that the divide between listening to a song and buying the song is temporally smaller. Users who hear a "broadcast" of a song on a website can – in almost the same motion – also obtain a copy of that song. The user no longer has to get into the car upon hearing the song, drive to the store, and purchase a physical copy of the album. In terms of time as well as technology, listening to and copying a song are almost one and the same.

The point is distinct and important because technical definitions of copying versus mere broadcasts may seem arcane and less than crucial to most people. The clear empirical difference between listening to and purchasing music, however, is a much more obvious concept. Broadcast and distribution merge in a way that will hopefully encourage additional reworking of copyright laws and royalty distribution, and in doing so remedy a legal inequality perpetuated through other changes in media.

Conclusion

The Internet changes everything. It is perceived as a revolution, a change much more dramatic and complete than any wrought by previous changes in media. Previous changes in media were not big enough to merit reconsideration of copyright theories set in stone for years. The one technological change with the potential to do so – the one change which called for a rethinking of conventional rules – was the ability to record and broadcast music, but the law failed to respond. Subsequent changes were mere format changes (lacquer LPs to vinyl LPs, tapes to CDs) and did not have the magnitude to work any sort of revolution. The Internet, however, is a revolution not just in the way music sounds, but in the way communication itself happens. It is big enough to prompt reconsideration of many areas of law – public forum doctrine, for example, or laws dependent on traditional geographic concepts. It has already prompted the beginnings of significant change in copyright law.

The Digital Performance Right in Sound Recordings Act represented the beginning of what might be a restructuring of copyright law in music. However, it is unclear how the trend will continue. This paper advocates (at the very least) expanding the right that the 1995 Act created, so that a performance right in sound recordings exists in media other than digital subscription services. Expanding this right, which was created and tailored for the Internet, would not only set a workable standard for the new medium, but would resolve a century-long inequity.

It is, of course, possible that what actually ends up happening is something entirely different. For example, rather than allowing the lines to blur enough that the system of performance rights is restructured, it is possible that organizations such as BMI and ASCAP will use advances in technology to sharpen the divide between performance and distribution. Codes within musical works online might render some files listen-only, perhaps by surfacing and scrambling the file once the user tries to make a permanent copy of it. ³⁰ Alternatively, license agreements might follow the example set by CompuServe and Frank Music in a 1995 settlement. ³¹ In that case, CompuServe agreed to require bulletin board operators to obtain mechanical licenses to post songs on the Internet. Such a solution designates certain transmissions as reproductions but fails to address the question whether owners of sound recordings should also have performance rights in those recordings.

The above solutions, by themselves, would just throw up another artificial divide. The Internet offers a valuable opportunity, the real possibility of remedying a long-standing inequity that other advances in media could not change. We would do well to take advantage of it.

FOOTNOTES

("My Way" is the English version of a 1967 French song called "Comme d'habitude," written by Jacques Revaux, Claude François, and Gilles Thibault. Paul Anka wrote the English lyrics. "Comme d’habitude" means "as usual" or "as always.")

Since this paper argues in favor of expanding the definition of distribution in order to benefit musicians, who thus reach the point of recoupment more quickly, I am focusing on musicians as the beneficiaries of the change. Record companies will likely benefit, or at least suffer no losses. However, except insofar as it affects their willingness to accept the new system, the effect on record companies is incidental to the argument.

See Interview with John Coletta, supra note 20. See also ASCAP performance license agreement, at <http://www.ascap.com/licensing/licensing.html> (describing similar licensing scheme, extending to "all such performances regardless of the file format (such as wav., midi., or one of the various streaming technologies available) in which [the] transmissions occur," but with a $250 flat fee minimum). Visited site November 12, 1998.

27. "ASCAP Internet Licensing: Frequently Asked Questions about Internet Licensing," <http://www.ascap.com/weblicense/webfaq.html>, visited November 12, 1998.

See also Bill Gates, The Road Ahead 21 (1995) (noting that the "celestial jukebox" would compete directly against traditional record stores by providing digital delivery of music – from a selection greater than that of any record store – to users’ homes).

However, other music industry figures report that executives at major record labels are presently concerned less with the loss of mechanicals from record sales, and more with the ease of piracy that the computer age in general allows. Interview with Jeff Levy, legal counsel for Atlantic Records, November 9, 1998.

Player," News Bulletin, October 28, 1998, Communications Media Center at New York Law School, <http://www.cmcnyls.edu/public/Bulletins/cltroddr.HTM>, visited November 12, 1998.