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ARSCLIST  July 2007

ARSCLIST July 2007

Subject:

Re: PRO For Polka Recordings

From:

Dismuke <[log in to unmask]>

Reply-To:

Association for Recorded Sound Discussion List <[log in to unmask]>

Date:

Fri, 20 Jul 2007 00:33:39 -0700

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (223 lines)

--- "Steven C. Barr(x)" <[log in to unmask]>
wrote:


> >
> Does this refer to people/firms who are CURRENTLY
> issuing newly-
> recorded polka recordings?

From looking at their database, it looks to me that it
is a combination of owners to copyrights of existing
polka bands as well as heirs who own copyrights to
recordings of polka bands in the past.


> Does it also apply to
> people/firms who
> are REISSUING collections of past polka
> recordings...and, if so,
> how does it avoid problems concerning the fact that
> EVERY sound
> recording ever "fixed" in the US of A is either
> under copyright or
> protected via arcane state anti-piracy statuates?


People who reissue recordings only have TRANSFER
copyrights. They don't own the copyright to the
underlying performance, only in their particular
recreation of it and/or enhancements to it.

To use a non-musical example: if you were to get a
vintage copy of silent movie from the early 1920s that
is indisputably in the public domain and do a quality
restoration of the film and/or (to many people's
horror) colorize it, you would own the copyright to
that particular version of the film. It would be a
violation of your copyright if someone were to
duplicate or perform the dvd you issued of it without
your permission. But it would not be a violation of
your copyright for some other person to duplicate some
other vintage copy of that film because the film
itself is in the public domain.

As for the issue of the state anti-piracy laws, how
that works is the TRANSFER copyright from a reissue CD
is protected by federal copyright laws and, therefore,
falls under the jurisdiction of SoundExchange.
However, the vintage 78 rpm itself is NOT protected
under federal copyright and thus is not subject to
statutory licensing and, therefore, is outside of
SoundExchange's jurisdiction.

I cannot remember where I read it, but I saw something
online by an attorney somewhere who pointed out that
since pre 1972 recordings are not protected by federal
copyright and thus not subject to statutory licensing,
if one wished to REALLY avoid legal risks, one should
not stream such recordings AT ALL even if one IS
licensed through SoundExchange. Because they are NOT
subject to statutory licensing, neither SoundExchange
nor the CRB has the authority to tell people that
playing them is ok. Such an ok can technically only
come from either the laws of a given state or the
blessing of the common law copyright holder.

I personally think that such an advice is
unrealistically cautious. There have been LOTS of
people, myself included, who have been streaming
vintage recordings for a few years now through
services such as Live365. If someone were to have
challenged the legality of playing of such recordings,
I assure you Live365 would have contacted me about my
playing them and have updated its rules of what is and
is not permissible accordingly. (For example, Live365
permits broadcasters to stream old time radio shows
but explicitly forbids them from streaming The Shadow,
Doc Savage or The Avengers, all of which are still
under copyright.)

The purpose of the polka organization's license is to
enable those who own ANY copyrighted recordings in the
genre to still able to get the airplay that they need
in order to reach new audiences.

That polka organization is WAY ahead of the curve on
this and is doing a DARNED good job of looking out for
the future of the genre it supports. Internet radio
has been a GODSEND for such niche genres - it has
enabled them to gain exposure and new enthusiasts that
they simply did not have access to previously. If the
CRB rates kill off services such as Live365, it will
be a DISASTER for any small niche genre that does not
have something similar in place because they are
simply not able to attract large enough audiences to
pay for the new rates. One MIGHT be able to make a
go of a niche genre as a subscription service. There
are probably enough polka fans out there who would
pay, say $10 per month, to be able to listen to the
music - and that $10 per month would likely be enough
to cover the per song per listener royalties the
subscriber racks up for the station plus its other
expenses. The problem with such subscription services
is they only serve EXISTING fans of the genre who
already recognize its value. It would be a VERY
difficult sell to convince someone to fork over $10 to
subscribe to a radio station that they might not even
like very much just to check it out.

Under the royalty rates that expired in 2006 and which
the CRB ruling would replace if it is allowed to go in
effect, such a service would probably not be of a
whole lot of use for the vast majority of polka
broadcasters. My guess is that most polka stations
are small enough that it would make more sense for
them to simply get coverage though an aggregator such
as Live365 or LoudCity. Observe that the polka website
very clearly says that webcasters must still pay
ASCAP, BMI and SESAC. Unless you are over a certain
size, it is a lot cheaper simply to go get coverage
from those organizations through Live365 and LoudCity
than it is to license with them directly - and one
gets coverage under their SoundExchange license thrown
in as well. If the CRB rates go through - well, that
licensing service is going to help make sure that
legal polka streams will still be able to be heard on
the web at no cost to listeners.

It might very well be worth enthusiasts of other
specialty genres to contact that polka society and see
how easy or difficult it would be to duplicate a
similar service just in case a worst case scenario
occurs over the next few weeks (which is probably not
too likely now that Congress has become involved).

> If "radio stations"...
> digital, terrestrial, or both...are now being
> treated as "public erformances"
> (which, in a sense, they ARE...!)...then an entirely
> new set of rulebooks
> will have to be created...quite probably also
> including the redefinition,
> via legal "precedents," of how such obligations can,
> or will, be defined...
> as well as "who owes whom what...?!"


Really, there is nothing particularly new in it with
the exception of sound recording performances in the
United States.

Terrestrial radio stations have ALWAYS paid royalties
to ASCAP/BMI and SESAC. In MOST countries outside of
the USA, terrestrial stations also pay a performance
royalty on sound recordings. Take a look sometime at
a European CD copyright notice. They specifically
prohibit unauthorized broadcasting.

The United States is a bit out of step with the rest
of the world in that radio stations do not pay
royalties for sound recordings. My understanding of
the history of this is that there was a rather heated
dispute over this issue back in the 1930s. As you
well known, many labels carried the notice "not
licensed for radio broadcast." Many smaller stations
did so anyway - but to do so was to take a potential
legal risk. At the time there existed transcription
services that provided musical recordings that were
specifically licensed for play on radio stations. If
my memory is correct, I think it was around 1939 when
the courts finally decided that record labels could
not stop radio stations from playing records over the
air. I am not sure what the basis for this was - but
in the years since, the justification that has usually
been offered is that radio airplay constitutes free
publicity.

It wasn't until the Internet came along that United
States copyright laws covered public performances of
sound recordings - but ONLY in the digital realm.
Such copyright protection still does not exist for
terrestrial radio. Thus a small time station such as
mine is required to pay a significant chunk of money
in order to be able to stream the same exact music
that a major market FM station with tens of thousands
of listeners at any given moment would get to play for
free.

As far as precedents and rulebooks are concerned -
well the logical guide for the new Internet radio
royalties should have been the existing types of
royalties that are collected. For example ASCAP/BMI
and SESAC are collected as a percentage of revenue. I
am not sure how the sound recording royalties for
radio stations in other countries are calculated, but
that would certainly serve as a rational example to
consider. But the per-song per-listener model of the
CRB, unfortunately, is ABSURD. Such a model DOES make
sense for INTERACTIVE Internet streams where listeners
simply click on a particular song in order to hear it
(and, as of yet, there is no statutory license
available for such streams). Such a model there makes
sense because the music is CONSUMED on a per-song
per-listener basis. Each listener must take a certain
action in order to stream each and every song. But to
apply it to a RADIO station makes NO SENSE at all.
For example, if someone tuned into a web radio station
on the computer in their bedroom and then, while the
stream was still going, walked away into the living
room and spent 3 hours watching a football game -
well, that webcaster is on the hook on a per-song
per-listener basis for three hours of music that is
played to an empty room. I know a lady who, when she
leaves for work each day, turns on an FM radio station
to provide comforting background music to her pet bird
and to perhaps make potential buglers think someone is
at home. If she did that with an Internet station,
the poor webcaster would be on the hook for over 160
hours per month of per-song per-listener royalties for
streaming to the bird. Thus it is fully accurate, in
my view, to say that the CRB rates are truly FOR THE
BIRDS!

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