• Webcasting and Copyright Law or Why Old Dogs Can't Learn New Tricks
  • May 7, 2009 | Author: Erach F. Screwvala
  • Law Firm: Robinson Brog Leinwand Greene Genovese & Gluck P.C. - New York Office
  • The Copyright Act grants copyright owners a bundle of exclusive rights with respect to copyrighted works.[1] Among these exclusive rights is the right of public performance,[2] including the right of public performance by means of digital audio transmission, such as webcasting.[3] The nature of these exclusive rights, however, differ among the types of copyrighted work. Sound recordings, for instance, do not enjoy public performance rights other than through digital audio transmission.[4]

    The Copyright Act exempts nonsubscription webcasting services that are noninteractive and are primarily made for the purpose of providing audio programming or other entertainment to the public.[5] The exemption of certain services means that use of sound recordings in this context will not constitute infringement of Section 106(6).[6]

    Exempt digital audio transmissions are not free, however. Rather, the Copyright Act provides for a statutory license for all exempt and non-exempt transmissions to use a sound recording.[7] In addition, it is necessary to obtain permission from the copyright owner of the literary work embodied on the sound recording.[8]

    The statutory license provision for digital audio transmissions assumes the existence of a valid copyright in the sound recording. Of course, prior to 15 February 1972, no federal statutory protection existed for sound recordings[9] and, at present, no sound recordings fixed[10] prior to that date enjoy any federal copyright protection. Therefore, it stands to reason that the statutory license provisions of Section 114 do not apply to those pre-15 February 1972 sound recordings.

    The lack of federal protection for pre-15 February 1972 sound recordings means that webcasters may need to obtain a license directly from the owner of the sound recording. Pre-15 February 1972 recordings may enjoy state common law protection.[11] The scope of state law protection involves a state by state analysis. The State of New York has recently determined that pre-15 February 1972 sound recordings enjoy perpetual copyright protection under New York common law.[12] The effect of the New York decision is to leave webcasters seeking to stream older sound recordings without a means to obtain compulsory permission to utilize such recordings.[13] Webcasters, therefore, must seek permission from the owner of the sound recording before including these performances in a digital audio transmission.

    Webcasters must also deal with the need to transform a sound recording in a physical format, such as a vinyl phonograph record or compact disc, into a recording that can be streamed through the Internet. The Copyright Act does provide for a statutory license allowing webcasters to create a copy of a copyrighted sound recording, known as an ephemeral recording, for the purpose of facilitating its use for transmission.[14] The ability to create such recordings is limited to those webcasters who meet the criteria of Section 114 for a statutory license.[15]

    Ephemeral recordings are subject to strictly prescribed rules concerning their creation and use. First, no more than one copy may be created.[16] Second, the organization making the ephemeral recording must retain it for its sole use and must not copy or reproduce other phonorecords from such recording.[17] Third, ephemeral recordings may only be used for the purpose of digital audio transmissions or for archival purposes.[18] Finally, all ephemeral recordings must be destroyed within six months after the date of first transmission of the program utilizing the recording, unless retained by the organization for archival purposes.

    The statute governing ephemeral recordings is silent as to whether one making a copy is permitted to enhance the recording in the creation of the recording. This is no doubt significant in the context of older recordings and the ability to create restorations and enhancements of the original recordings. Notwithstanding the lack of statutory guidance, however, it is likely to be the case that one would not engage in infringement for making an enhanced ephemeral recording, so long as the use is limited to the permitted uses of the statute.

    The creation of ephemeral recordings for pre-15 February 1972 sound recordings raises the same issues of state common law as the ability to transmit such recordings over the Internet. Accordingly, webcasters must also obtain a license from the owner of the sound recording to create an ephemeral recording to be used in digital audio transmissions.


    [1] 17 U.S.C. §106.

    [2] 17 U.S.C. §106(4). Public performance rights are limited to "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works."

    [3] 17 U.S.C. §106(6). Webcasting rights are limited to sound recordings only.

    [4] 17 U.S.C. §114(a).

    [5] 17 U.S.C. §114(d)(1). Section 114 sets forth several requirements for entitlement to the exemption that are too complex to detail in this article. See also, 17 U.S.C. §114(i).

    [6] Id.

    [7] 17 U.S.C. §114(d)(2). License fees for statutory licenses are set by the Librarian of Congress on a biennial schedule.

    [8] 17 U.S.C. §106. Previous articles have discussed the fact that a sound recording is composed of two separate copyrightable works - the recording itself, and the composition on which the recording is based.

    [9] 17 U.S.C. §104A(h)(6)(C)(ii).

    [10] A work is "fixed" when "its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 17 U.S.C. §101.

    [11] The Supreme Court has ruled that the Copyright Act does not preempt state law protection for these recordings. Goldstein v. California, 412 U.S. 546 (1973). As of February 15, 2067, however, Federal law will preempt all state law and common law copyrights. 17 U.S.C. 301(c).

    [12] Capitol Records, Inc. v. Naxos of America, Inc., 4 N.Y.3d 540, 797 N.Y.S.2d 352 (2005). For an analysis of the Naxos case, please refer to {January 2005 Newsletter}. All state law protection will be preempted on 15 February 2067. 17 U.S.C. § 301(c).

    [13] The origin of the recording will not have any bearing on whether common law protection will apply. For further detail on this point please see 36 ARSC Journal pp. 52-53. (Spring, 2005).

    [14] 17 U.S.C. §112.

    [15] 17 U.S.C. §112(a)(1).

    [16] Id.

    [17] 17 U.S.C. §112(a)(1)(A).

    [18] 17 U.S.C. §119(a)(1)(B).