Please Note: Much of the information contained in this report is courtesy the Recording Industry Association of America. GrayZone appreciates their insights and legal expertise. Be sure to visit their web site at http://www.riaa.com/.
What is copyright?
To all artists, “copyright” is more than a term of intellectual property law that prohibits the unauthorized duplication, performance or distribution of a creative work. To them, “copyright” means the chance to hone their craft, experiment, create, and flourish. It is a vital right, and over the centuries artists such as John Milton, William Hogarth, Mark Twain and Charles Dickens have fought to preserve that right. Twain traveled to England to protect his rights, and Dickens came to America to do the same.
Copyright law all started with the “The Statute of Anne,” the world’s first copyright law passed by the British Parliament in 1709. Yet the principle of protecting the rights of artists predates this. It may sound like dry history at first glance, but since there was precedent to establish and rights to protect, much time, effort and money has been spent in legal battles over the centuries.
In the United States, the principle took hold during the Constitutional Convention of 1787 when James Madison suggested that the Constitution include language “to secure to literary authors their copyrights for a limited time.” The provision passed unanimously. It is found in Article I, Section 8, of the U.S. Constitution. It states…
The Congress shall have Power . . . To 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 . . .
Before free speech, before freedom of assembly, before freedom of religion, there was copyright protection in our Constitution. The founding fathers knew copyright protection could improve society by preserving the economic incentive for people to come up with brilliant ideas and inventions. They also realized the fundamental fairness of granting control of the creative work to the author.
Today, in the recording industry, artists like Metallica, Nine Inch Nails, Willie Nelson, Johnny Cash, Sheryl Crow, Don Henley, Bonnie Raitt, and many others are fighting for their rights. In the music business, stars are made not born, and it takes plenty of hard work to make it.
Poe cut her debut album, “Hello,” in 1995. She knows the value of a copyright, “Copyright protects the creative process . . . It’s rough out there . . . There is nothing more inspiring to creativity than independence and that requires protection. If you’re an artist that can do something nobody else can, you need to know that your work will not be diluted or mass produced.” It’s as simple as that.
The principle that work one creates belongs to the creator and should be controlled by the creator is as timeless as it is global.
Likewise, for centuries, new inventions, from the printing press to the Internet, have threatened that principle.
The following sections explain copyright law basics and where we stand today.
A handful of federal, state, and international laws govern copyright practice. (Please see GrayZone’s FAQ for details). In general, they are designed to protect the rights of artists while preserving the public’s right to benefit from the works of those same artists. The various laws provide for civil and criminal penalties for those found guilty of violations.
Digital Millennium Copyright Act (DMCA)
This landmark legislation has its origins in the 1996 World Intellectual Property Organization’s Diplomatic conference in Geneva, attended by more than 160 nations. There, two new treaties were negotiated that represent the most important overhaul of international copyright law in the last quarter century. The treaties raise the minimum standards for copyright protection worldwide and make it easier to fight piracy of American products overseas.
Although U.S. copyright law already met the treaties’ standards, legislation was needed to meet the treaties’ prohibition of devices used to undermine electronic “locks.” The Digital Millennium Copyright Act (DMCA) does just that, among other things, by prohibiting the manufacture and distribution of devices designed for the sole purpose of undermining technology used to protect copyrighted works.
The DMCA law also delineates the responsibilities of Internet service providers (ISPs) in cases of infringement online. For example, the law formalizes a notice and takedown procedure between ISPs and copyright owners. It is now clear that when an ISP is aware it is posting or transmitting infringing content, the ISP must act to remove the infringing works or it may be liable for any resulting damages.
The DMCA also contains the key agreement reached between the Recording Industry Association of America (RIAA) and a coalition of webcasters and satellite audio delivery services. This section provides for a simplified licensing system for digital performances of sound recordings, such as those on the Internet and through satellite delivery. This part of the DMCA provides a statutory license for non-interactive non-subscription digital audio services with the primary purpose of entertainment, if terms of the license are met. Such a statutory licensing scheme guarantees webcasters and satellite services access to music without obtaining permission from each and every sound recording copyright owner individually and assures record companies an efficient means to receive compensation for sound recordings.
The greatest gains from the DMCA will be realized internationally. This law is a model for ratification and implementation of the WIPO treaties in other countries, where protection of sound recordings online is not sufficient. Formal U.S. ratification of the treaty package moves the worldwide ratification effort closer to the 30 countries that must ratify the treaties for them to take legal effect.
To view the U.S. Copyright Summary of the DCMA: http://lcweb.loc.gov/copyright/legislation/dmca.pdf
The 1998 enactment of the Digital Millennium Copyright Act (DMCA) represents the most comprehensive reform of United States copyright law in a generation. The DMCA seeks to update U.S. copyright law for the digital age in preparation for ratification of the World Intellectual Property Organization (WIPO) treaties. The treaties came into force May 20, 2002.
Key among the topics included in the DMCA are provisions concerning the circumvention of copyright protection systems, fair use in a digital environment, and online service provider (OSP) liability (including details on safe harbors, damages, and “notice and takedown” practices).
Peruse commentary about the DMCA at the United States Copyright Office: http://www.loc.gov/copyright/
Download the DMCA at the U.S. Copyright Office (requires Adobe Acrobat Reader):
Also, there is an excellent legal “status and analysis” of the DMCA by the Association of Research Libraries. This website includes a listing of articles and links on topics, chronology and legislation of the act:
The Audio Home Recording Act of 1992 (AHRA)
This 1992 legislation exempts consumers from lawsuits for copyright violations when they record music for private, noncommercial use; eases access to advanced digital audio recording technologies; provides for the payment of modest royalties to songwriters and recording artists and companies; and mandates the inclusion of serial copying management technology in all consumer digital audio recorders to limit multi-generation audio copying (i.e., making copies of copies).
In general, the AHRA covers devices that are designed or marketed for the primary purpose of making digital musical recordings. Digital audio cassette players, minidisc players, and DAT players are devices covered by the AHRA. This law will also apply to all future digital audio recording technologies, so Congress will not be forced to revisit the issue as each new product becomes available.
The AHRA provides that manufacturers (not consumers) of covered devices must: (1) register with the Copyright Office; (2) pay a statutory royalty on each device and piece of media sold; and (3) implement serial copyright management technology (such as SCMS) which prevents the production of copies of copies. In exchange for this, the manufacturers of the devices receive statutory immunity from infringement based on the use of those devices by consumers.
Multipurpose devices, such as a general computer or a CD-ROM drive, are not covered by the AHRA. This means that they are not required to pay royalties or incorporate SCMS protections. It also means, however, that neither manufacturers of the devices, nor the consumers who use them, receive immunity from suit for copyright infringement.
For additional information go to: http://www.virtualrecordings.com/ahra.htm
The Digital Performance Right in Sound Recordings Act of 1995 (DPRA)
For nearly 30 years, the Recording Industry Association of America (RIAA) has been fighting to give copyright owners of sound recordings the right to authorize public performances of their work. Before the passage of the Digital Performance Right in Sound Recordings Act of 1995, sound recordings were the only U.S. copyrighted work denied the right of public performance. All that has now changed.
This law allows copyright owners of sound recordings the right to authorize certain digital transmissions of their works, including interactive digital audio transmissions, and to be compensated for others. As amended by the Digital Millennium Copyright Act in 1998, the right now covers cable and satellite digital audio services, webcasters, and future forms of digital transmission. Most non-interactive transmissions are subject to statutory licensing at rates to be negotiated or, if necessary, arbitrated. Exempt from this bill are traditional radio and television broadcasts and transmissions to business establishments.
No Electronic Theft Law (NET Act)
The No Electronic Theft law (the NET Act) sets forth that sound recording infringements (including by digital means) can be criminally prosecuted even where no monetary profit or commercial gain is derived from the infringing activity. Punishment in such instances includes up to 3 years in prison and/or $250,000 fines. The NET Act also extends the criminal statute of limitations for copyright infringement from 3 to 5 years.
Additionally, the NET Act amended the definition of “commercial advantage or private financial gain” to include the receipt (or expectation of receipt) of anything of value, including receipt of other copyrighted works (as in MP3 trading). Punishment in such instances includes up to 5 years in prison and/or $250,000 fines. Individuals may also be civilly liable, regardless of whether the activity is for profit, for actual damages or lost profits, or for statutory damages up to $150,000 per work infringed.
For additional information visit: http://www.virtualrecordings.com/net.htm
The Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works is the keystone for all international copyright agreements. The World Intellectual Property Organization (WIPO) administers the Berne Convention. Today, although there is no such thing as an “international copyright” per se, most countries have agreed to basic copyright protection terms.
The Berne Convention was signed by a handful of European countries in 1886—but not the United States. It took more than a century for the U.S. to get on board; finally, in 1989, the U.S. agreed to comply with the tenets of the Berne Convention. The Berne Convention has been revised numerous times over the decades, and most treaties and conventions have been in response to it. The Berne Convention establishes rules for the protection of works, including the right for the copyright owner to authorize reproduction, translation, public performance, communication, and adaptation of their work.
Unfortunately, although the United States protects sound recordings under the Berne Convention, most countries do not, and the Berne Convention is thus not a central part of the international legal infrastructure with respect to such works.
Trade Related Aspects of Intellectual Property Rights (The TRIPS Agreement)
Until the TRIPS Agreement was reached in 1994 in the GATT (now called the WTO - World Trade Organization), international legal protection was governed by two relatively inadequate treaties - the Rome Convention (1961) and the Geneva Phonograms Convention (1971). These Treaties required their adherents to provide protection against literal copying, but achieved little else.
TRIPS resolved many of the limitations of the international regime in place under the Rome and Geneva Phonograms Conventions - in particular by extending the reach of international discipline to all WTO members (over 100) instead of the 30-40 members of each of the Conventions, by increasing the term of protection for sound recordings from 20 to 50 years, by granting record companies the ability to prohibit rental of their recordings, and by requiring WTO members to protect all recordings released within the past fifty years.
TRIPS also extends copyright protection to computer programs, compilations of data, cinematographic works, and sound recordings. Under TRIPS, performers have the right to prevent fixation (i.e. to capture in some tangible form such as film or a sound recording) of their unfixed performances, the reproduction of that fixation, and the wireless broadcasting of their live performances when done without their authorization. Broadcasting organizations have the right to prohibit the fixation, reproduction, or broadcasting by wireless means any of their broadcasts.
TRIPS also establishes that countries can bring an action against other countries for infringement of these rights through the World Trade Organization. While the WTO can’t change a country’s laws, it can impose tariffs as penalties if a country is found to be in violation of TRIPS.
World Intellectual Property Organization Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)
The WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) were held in 1996 to address digital issues and are meant to further clarify Berne and TRIPS. The WCT does a few important things.
First, it grants copyright owners the exclusive right of distribution of their work, by sale or other means of transfer of ownership, though only for physical copies.
Second, it provides that communication of works to individual members of the public by on-demand services, such as with the Internet, still be considered to be a public performance. Finally, it creates obligations concerning technological measures (safeguarding copyright protection within the music, software, and/or hardware) and rights management information, as detailed below.
The WPPT dealt with some of the issues covered in the WCT, and introduced some new articles.
First, it clarifies that the need for authorization from a performer or producer of a work does not cease to exist just because authorization would also be needed from the owner of the musical work. This is important because record companies would have been dependent on authors’ collecting societies to exercise their rights. Second, it expands the definition of “phonogram” and “phonogram producer” to be more broad and therefore advantageous for record companies.
It also grants that producers of phonograms would have the exclusive right of direct or indirect reproduction of their works, in any form (Rome established a much more limited right of reproduction). It gives producers and performers the exclusive right to authorize on-demand transmissions, providing an excellent platform for international e-commerce. It gives producers and performers the right to remuneration for broadcasting or any communication to the public of their work (though there is still work to do on this and a resolution of the level of rights is forthcoming).
Significantly, the WPPT rejects the Rome Convention’s allowance to limit the rights of phonogram producers with respect to personal use of the work. More in line with Berne, limitations must not conflict with a normal exploitation of the work, and not unreasonably compromise the legitimate interests of the phonogram producer.
Overview of International Treaties and Conventions
Following is an overview of the treaties and conventions that are most relevant to sound recordings in new media that have been discussed in this report.
Berne Convention for the Protection of Literary and Artistic Works
Governs the relationships between nations concerning the rights of authors.
Basic Rights - Guarantees certain minimum rights to authors without regard to inter-governmental relations:
- The right to authorize the reproduction of his work.
- The right to authorize the translation of his work.
- The right to authorize the public performance or communication to the public of his work.
- The right to authorize adaptations or other alterations to his work.
- Term - These minimum rights must exist for a period of not less than the life of the author plus 50 years.
- Limitations - Any limitations of these rights must not prejudice the legitimate interests of the author or conflict with a normal exploitation of the work.
- National Treatment - Nations are required to extend the benefits of their domestic legislation to authors of other nations belonging to Berne, and this obligation extends to rights which future laws may grant.
- Right of Reproduction - Guaranteed right to control reproduction of work granted to phonogram producers and performers.
- Rights of Performance and Broadcast - Right for phonogram producers and performers to control the performance and broadcast of their work, though countries may opt out of this.
- Term - Rights granted under Rome are valid for 20 years from publication of the work.
- Limitations - Blanket exemption for all rights if the use of the work is personal.
Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement)
- Applies to all works, including computer programs, compilations of data, cinematographic works, and sound recordings.
- Performers’ Rights - Performers have the right to prevent fixation of their unfixed performance, the reproduction of that fixation, and the wireless broadcasting of their live performance when done without their authorization.
- Producers’ Rights - Producers have the right to authorize or prohibit the direct or indirect reproduction of their sound recordings and the rental of their recordings.
- Broadcasters’ Rights - Broadcasting organizations have the right to prohibit the fixation, reproduction, or broadcasting by wireless means any of their broadcasts.
- Limitations - Through incorporation of relevant provisions of the Rome Convention, signatory countries are free to define any personal use as non-infringing activity, regardless of the impact on the copyright owner, and therefore impose limitations on the articles of this Agreement.
- Enforcement - Allows countries to bring action against another country if it is found to be in violation of the TRIPS agreement. Countries must protect all recordings released within the past 50 years.
World Intellectual Property Organization Copyright Treaty (WCT)
- Clarifies and extends protection offered under Berne and TRIPS, established to address digital concerns.
- Applies to computer programs, compilations of data (databases, though not the data itself), cinematographic works, and sound recordings.
- Right of Distribution - Provides copyright owners with the exclusive right to authorize the making available to the public of the original and copies of their work through sale or other transfer or ownership. Refers to fixed copies as tangible objects only.
- Right of Rental - Like TRIPS, owners of sound recordings and computer programs have the right to authorize or prohibit the commercial rental to the public of originals or copies of their works. Refers to fixed copies as tangible objects only.
- Right of Communication - Grants authors the exclusive right to make their works available to the public in a manner in which the public may access them through on demand services (such as with the Internet). It also provides that such availability is to be considered a communication to the public, as opposed to an individual communication.
- Technological Measures - Requires that countries prohibit the circumvention of technological measures used by copyright holders to protect their works.
- Rights Management Information - Requires that member countries must provide adequate and effective legal remedies against persons who remove or alter electronic rights management information without authority, distribute, import for distribution, or broadcast works knowing that electronic rights management information has been removed without authority. Rights management information identifies the work, the author, the owner of any right of the work, the conditions of use, and any numbers that represent this information.
WIPO Performances and Phonograms Treaty (WPPT)
- Like WCT, provides copyright owners with the rights of distribution, rental, and importation, and includes obligations of signatories to technological measures and rights management information.
- Reproduction - Grants performers and producers of sound recordings the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in sound recordings, including in digital form, and grants that the storage of sound recordings in a digital form constitutes a reproduction.
- Right of Making Available - Record companies have the exclusive right to make the original and subsequent copies of their sound recordings available to the public, to authorize the commercial rental of those recordings to the public, and to make the recordings available to the public by wire or wireless means.
- Remuneration for Broadcasting - Performers and producers have the right to remuneration for the direct or indirect use of their sound recordings published for commercial purposes (including wire or wireless availability to the public on demand) for broadcasting or any communication to the public, subject to reservations.
- Relationship Between Rights Owners - Clarifies that if authorization is needed from both the musical works copyright owner and the sound recording copyright owner of works in a phonogram, then the need for authorization from one of them does not cease because the other is also required.
- Limitations - Reversing the rule of the Rome Convention under which personal uses were per se acceptable, it requires that limitations to any of the articles in the Treaty not conflict with the normal exploitation of the phonogram, and do not unreasonably prejudice the legitimate interests of the phonogram producer.
- Moral Rights - The performer has: the right of paternity (to be identified), though it does not apply where omission is dictated by the manner of the use of the performance; and the right of integrity, or the right to object to distortions or modifications of their work.