The Use of Streaming to Access Digital Content in Australia and Challenges to Copyright Law: An End-User Perspective

Copyright collectives are critical to the economic health of the music industry, but they are at a curious crossroads. Collective copyright management is used more extensively in the music business than ever before. Expanded collective copyright management for digital streaming is the centerpiece of the Music Modernization Act (MMA)—the most extensive revision to the Copyright Act in two decades. At the same time, major music publishers, who rely heavily on collective licensing revenue, are on a years-long mission to end collective licensing for certain digital streaming rights. These trends reflect changes that streaming technology has caused in music consumption, distribution, and revenue generation.
 Digital streaming has emerged as the dominant music consumption model, accounting for eighty-three percent of music revenues in the United States in 2020. This rapid rise to dominance naturally has profound implications for the future of music licensing. The licensing needs of streaming service providers are unprecedented in scale. Spotify, for example, currently hosts over 70 million recordings, with more than 60,000 new recordings uploaded every day. Most of these recordings encompass two copyrighted works that must be licensed separately: a copyrighted sound recording and a copyrighted underlying musical composition. Streaming services’ need for such a massive number of licenses highlights the value of collectives that enable streaming services to interface with a manageable number of licensors. It also highlights the importance of blanket licenses that permit spontaneous use of millions of works relatively free from infringement liability.
 At the same time, the importance of collective licensing to copyright owners has decreased in the streaming age. Streaming is a highly concentrated market: Spotify, Apple Music, and Amazon Music together control two-thirds of the global streaming market. Thus, it has never been easier for copyright owners to license a handful of platforms that deliver the lion’s share of revenue. Further, technology has markedly reduced the costs of use-tracking and royalty distribution. All streams are automatically logged, and royalties are automatically distributed based on usage data. As a result, the major record labels often directly license millions of sound recordings to streaming services without using a collective.
 Historically, collective copyright management has been valuable for both copyright owners and users of copyrighted works. The primary advantage is reduced transaction costs. Across the globe, there are millions of music copyright owners and millions of businesses that use copyrighted works. In some cases, individual transactions for large numbers of works would be prohibitively costly for both sides. Collective copyright management creates a one-stop shop for licensors and licensees, drastically reducing transaction costs. Collective copyright management further benefits copyright owners by sharing and thereby reducing administrative and enforcement costs. It further benefits users by reducing potential liability for frequent and spontaneous uses, especially through blanket licensing that empowers licensees to make unlimited use of all works in a licensor’s catalog.
 The major concern with collective licensing has long been the monopoly pricing potential of collective copyright control, especially when collective licensing is combined with blanket licensing. If one entity holds the rights to license the majority of popular songs, it can exact monopoly rents from anyone seeking to use music. Radio stations, streaming services, nightclubs, and other music-centric businesses would have no latitude to seek alternatives if the rights to license the music they need were concentrated in one entity. Music licensing, therefore, has long been a heavily regulated market, controlled through a combination of compulsory licensing regimes, statutory limitations and exceptions to exclusive copyright rights, and competition authority oversight.
 The question is whether such heavy regulation is necessary going forward—or, more to the point, whether collective licensing is necessary going forward. Collective licensing has dominated the music public performance rights market for a century. The two major performance rights organizations (PROs)—American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI)—offer blanket licenses for millions of works, albeit under strict regulation by the Department of Justice (DOJ) to deter market power abuses. But this model increasingly seems like a vestige of the analog age. Today, there is a relative handful of high-value licensees operating globally. Streaming services have the technological infrastructure to work with a huge number of licensors, unlike the radio stations and nightclubs of yore. Because technology enables nearly frictionless virtual licensing and automated usage tracking and royalty distribution, a plethora of music rights and royalty administration businesses have flourished that are capable of administering direct public performance rights licensing and royalty collection on copyright holders’ behalf. The performance licensing that still involves high transaction costs—licensing of radio stations and brick-and-mortar businesses such as stores, fitness studios, and bars—accounts for less than fifteen percent of PRO revenues. Further, as I discuss in Part IV.B, licensing even in those arenas is vulnerable to disruption.
 The upshot is that music publishers, especially major publishers, are eager to eschew collective licensing in the digital streaming space so they can negotiate higher direct-licensing fees for streaming. As I discuss in Part III.C.3, publishers’ plans have been derailed for the time being by DOJ consent decrees that prohibit PROs from selectively licensing members’ works. Many licensees, on the other hand, are generally satisfied with how collective licensing currently functions in the performance rights space. The two major PROs are so heavily regulated that their blanket license offerings are comparable to compulsory licenses: The PROs’ pricing and licensing discretion is substantially curtailed under rate court and DOJ oversight. Meanwhile, competition from a new PRO (which poaches some of the legacy PROs’ most valuable catalog) and from a burgeoning music rights administration industry adds further pressure, casting doubt on the long-term viability of the legacy PROs. If the legacy PROs deteriorate and publishers seek direct licenses for performance rights, will licensees lobby for a blanket compulsory performance rights license?
 There is precedent for such a compulsory license, as a new compulsory blanket licensing regime came into effect in 2021, mandated by the MMA, for a related right: the right to make and distribute phonorecords of nondramatic musical works, including by means of “digital phonorecord delivery.” In essence, this is a compulsory license for the right to digitally deliver—via download or stream—a copyrighted song encompassed in a sound recording. The MMA also created a new collective—the Mechanical Licensing Collective (MLC) (so-called because the compulsory license covers what was traditionally called the “mechanical right,” or the right to reproduce musical works in formats used for mechanical playback)—to administer the compulsory license. The MMA comes two decades after the creation of another compulsory right prompted by digital streaming: the compulsory right available to “noninteractive” digital music services (essentially, internet radio webcasters and satellite radio broadcasters) to transmit sound recordings. A bespoke licensing collective, SoundExchange, was created to administer that compulsory license as well. In total, the licensing landscape for the U.S. digital music streaming sector involves six collectives: the MLC, SoundExchange, and four PROs. The only licenses in the streaming landscape not administered by licensing collectives are licenses for the use of sound recordings by “interactive” streaming services, such as Apple Music and Spotify. These direct licenses also happen to be by far the most lucrative licenses in the music business.
 The two compulsory streaming licenses of relatively recent vintage (and their respective collectives) seem entrenched for the foreseeable future. However, uncertainty surrounds the future of streaming performance royalties. Will major publishers seek to direct-license streaming performances and withdraw their rights from PROs? Will they seek instead to phase out streaming performance royalties in favor of a single, all-encompassing musical composition royalty stream managed by the MLC? Or will they maintain the status quo: music composition streaming royalties split into performance and mechanical royalties administered and distributed by five or more different collectives. In the long term, the third possibility seems the least likely due to the inefficiencies and lack of flexibility in the current structure. The other possibilities would not be costless, however, as bypassing the PROs for streaming royalties would markedly weaken—if not ruin—the PROs on which publishers would still rely for non-streaming performance royalties.
 In this Article, I examine the present state of collective copyright management and collective licensing in the United States and identify the factors likely to determine the future of collective copyright management due to new usage tracking technology and the rise of digital streaming. In Part I, I lay the terminological groundwork for subsequent discussion by defining and distinguishing the related concepts of collective licensing, direct licensing, compulsory licensing, blanket licensing, and collective copyright management. In Part II, I lay the necessary doctrinal

“They’re creepy and they’re kooky” and They’re Copyrighted: How Copyright Is Used to Dampen the (Re-)Imagination

Using Existing Research Instruments: Copyright, Permission, and Fair Use

ONS and Intellectual Property

Copyright Law and Science

The paradigmatic roles of copyright and patent laws have been, respectively, to protect original authorial expressions from illicit copying and novel and nonobvious functional designs (if they have been appropriately claimed and examined by patent officials) from illicit uses. It would be convenient if copyright law could be assigned the role of protecting the expression in computer programs and patent law the role of protecting program functionality. While courts continue to try to distinguish between program expression and program functionality, this distinction has proven elusive in the decades since the U.S. Congress decided to extend copyright protection to computer programs.For more than twenty years, a series of court cases have held that copyright infringement does not occur when a second comer needs to copy some aspects of another firm’s program in order to achieve compatibility with other programs. Courts have deemed the functional requirements for achieving compatibility to be unprotectable elements of these copyrighted programs, even though more than a modicum of creativity may have imparted originality to these elements.The seeming consensus that program interfaces necessary for interoperability are unprotectable by copyright law was recently called into question by the Court of Appeals for the Federal Circuit (CAFC) in Oracle Am., Inc. v. Google Inc. At issue was whether the command structure of certain elements of the Java application program interface (API) was protectable by copyright law. The CAFC reversed a lower court ruling that this command structure was an unprotectable method of operation, or alternatively that copyright protection was unavailable under the merger doctrine. The CAFC was untroubled by the prospect that software developers might obtain both patent and copyright protection for APIs of computer programs. There was, in its view, no need to sort out functionality and expression in computer programs. Copyright could protect both as long as there was a modicum of creativity to support the claim of copyright. The Oracle decision has rekindled a decades-old debate, which many had thought had been settled in the late 1990s, about the proper scope of copyright protection for computer programs and how courts should go about analyzing claims of software copyright infringement. The U.S. Supreme Court decision not to review the Oracle decision leaves the CAFC ruling intact for the time being.This Article takes issue with the CAFC’s ruling and analysis. It aims to provide guidance about how courts should assess claims of copyright infringement in computer program cases. Part II reviews some key software copyright decisions and explains why the Second Circuit’s test for software copyright infringement is more compatible with traditional principles of copyright law than the Third Circuit’s is-there-any-other-way-to-do-it test. The Second Circuit recognized that sometimes external factors, such as the need to be compatible with other programs, constrain the design decisions of subsequent programmers, and when this happens, those constraints limit the scope of copyright protection in programs. While there is much in the Second Circuit’s ruling to praise, that court failed to heed the statutory directive in 17 U.S.C. § 102(b) that procedures, processes, systems, and methods of operation should also be filtered out before making judgments on copyright infringement claims in software cases. Part III articulates five propositions about § 102(b) that should be uncontroversial. It explains the important role that § 102(b) has played in numerous computer program cases. It goes on to discuss numerous respects in which the CAFC in Oracle misinterpreted § 102(b), as well as numerous cases in which courts have held that aspects of programs that are necessary for achieving interoperability with other programs or hardware are too functional to be protected by copyrights. Part IV explains why the merger doctrine has an important role to play in the assessment of infringement claims involving computer programs and why the CAFC erred in its interpretation of this doctrine. Courts should explicitly recognize a merger of function and expression doctrine in computer program cases. This doctrine usefully complements analysis of elements that may be unprotectable under § 102(b) as necessary incidents to the reimplementation of an unprotectable method or process.Part V considers the roles that copyright and patent law should play in protecting program innovations, with particular attention to how courts should assess claims that copyright protection should be unavailable to aspects of programs that might be eligible for patent protection. The CAFC in Oracle conflated copyright and utility patent protections for software as though it was unnecessary to even try to distinguish program expression and functionality. Part VI offers a pragmatic approach to distinguishing between program functionality and expression in copyright cases and a refinement of the Second Circuit’s test for software copyright infringement that is consistent with the overwhelming majority of software copyright cases (even if not with the CAFC’s Oracle decision) and traditional principles of copyright law. Competition and ongoing innovation will better thrive when the scope of copyright protection is relatively thin, allowing programmers to reuse functional design elements and know how that will promote the progress of science and useful arts, as the Constitution directs.

Recovering Fair Use

As technology advances, copyrights have been used, not only on physical works of literature and art, but also virtual works via the protective cloak of Digital Rights Management (DRM). Despite its obvious effectiveness and efficiency at times, DRM remains controversial and has generated several outstanding issues, leading to important legal precedents. This thesis discusses two of these issues: (1) DRM cannot fully stop copyright infringement, and (2) Major digital content companies are likely to act in an anti-competitive way when given the benefits of technology such as DRM. To analyze these two issues, this thesis focuses on three cases: A&M Records, Inc. v. Napster, Inc., the Apple iPod iTunes Antitrust Litigation, and United States v. Apple Inc. By analyzing these cases, this thesis is able to arrive at some useful conclusions -- in particular, DRM is unlikely to be the best solution to the problem of copyright infringement for cases involving virtual media. Normally, legal issues surrounding property rights must be adjudicated through the courts by a set legal process. However, the speed of change of technology often makes court rulings problematic and courts do not always make the most efficacious decision. It is crucial for all to be conscientious and fight copyright infringement. It is essential for all to realize that each of us benefit from intellectual works. Intellectual works push society forward, and therefore it is necessary to maintain a fair and safe environment for intellectual property. As for the anti-competitive issue, US court must deal with such behavior based on current laws, whether it is at people’s best interest or not. The thesis suggest however that anti-trust law should be more responsive to changes in technology. When viewing conflicts between society's benefit and the narrower benefit of a single company, the larger benefit should be considered. This is because the purposes of copyright laws and DRM are all for promoting social progress and the arts, so that the society can eventually become a place for creators, governments, enterprises, and consumers to peacefully co-exist.

Copyright law continues to change its contents according to the process of the development of media technologies, which have also been changing the form of use of works protected by copyright law. This is results from the digital transformation; most of the content including copyrighted works are changed into digital forms. Just as the Printing Revolution in the past brought the era of reproduction, it leads to the era of transition to the ‘Digital’ Revolution. As one of phenomena of transformation, the form of using copyrighted works is changing from downloading for the long-term use to streaming for temporary use. Of course, while digitized works are mainly used online rather than offline, the current copyright law has a large number of provisions based on the traditional/classical use of works. Copyright infringement in online space can bring more complex problems than expected due to the development of digital technologies. Despite the new technologies used in the online space, our copyright law does not provide an appropriate answer to whether the use of copyrighted works constitutes an infringement or whether the interests of copyright holders and users are reasonably balanced. There is a gap between reality and law, where various uses of digitized works matter, and this paper will look at copyright limitations in consideration of using digital content, which has become common due to the development of digital technology. The Korean Copyright Act basically stipulates the rights conferred on copyright holders, while exercising those rights of copyright holders is restricted for securing rights of users who use works. The history of copyright law is nothing but a history of constant tug-of-war between rights holders and users, and we should examine whether the current copyright limiations are undertaking appropriate functions in the digital era for the purpose of balancing between rights holders and users. Although they are largely divided into limitations for the public interest and limitations for user convenience (private interest), the purpose of the user convenience will eventually contribute to promote access and use of works and lead to the improvement of the cultural industry. On the other hand, as a result of reviewing fair use (Article 35-5 of the Copyright Act), copyright law is ultimately characterized as a law for cultural development, and it is on its way to adapt itself to the rapidly changed environment of content consumption in response to technological development. Rather than simply adjusting profits on the premise of the conventional confrontation structure of ‘rightsholder versus user’, it is necessary to keep in mind that the complex relationship between various subjects surrounding the efficient use of digital works is well understood and controlled. In the reality in which the possibility of copyright infringement is increasing when using digital works, copyright limitations do not seem to balance users and rightsholders. Ultimately, when digital content users use works, it will be necessary for copyright limitations to make clear the scope and contents of practically permissible use in more details.

Copyright in Quotes

The law of Copyright Act 1957 has been giving protection to literary, dramatic or musical works, artists, cinematograph film and sound record. Now days it has been challenging even in the field of research publications, thesis and patent. In this paper the Researchers focus on the laws of copyrights and libraries, also on the challenges and issues of copyright. Some of the cases related to the copyright are also discussed. Keywords: Copyright Laws, Library, Infringement of copyright, Intellectual Property, Licenses Cite this Article Vishwasrao S Mane, Namita Khot. Copyright Act, 1957: A Study with Reference to Selected Cases in India. Journal of Advancements in Library Sciences. 2019; 6(Special Issue 1): 336s–341s.

The article considers the legal analysis of copyright protection in an extrajudicial manner using the Internet. The author analyzes the procedure for terminating copyright violations that occur in the digital environment. It is established that the Law of Ukraine «On Copyright and Related Rights» No. 2811-IX normalized relations in a new way, including taking into account the development of the digital environment and in connection with the transformation of many copyright objects into digital form. It is established that the legislative changes relate to the procedure for copyright protection. One of the innovations was the updating of the procedure for out-of-court protection of copyright and related rights that are violated on the Internet (the so-called «TAKE DOWN NOTICE» procedure). It is proven that this procedure is important considering the fact that, as of today, almost all objects of copyright have moved to the digital environment, to the Internet, each website is a collection of digital content that includes various objects copyright (written works, photographic works, audiovisual works, etc.). It is also proven that the introduction of an updated procedure for out-of-court protection of copyrights that have been infringed on the Internet is a positive trend for proper legal protection of copyrights. It is substantiated that the specified out-of-court procedure can enjoy significant popularity and be useful to the subjects of property copyrights, provided that the procedure for publishing data about website owners, which is provided for by the copyright law, is established. It is established that the TAKE DOWN NOTICE procedure provided for by the copyright law contains certain debatable points, but its minor shortcomings or certain controversial provisions should not stand in the way of its wide application. It is also established that the participants of the TAKE DOWN NOTICE procedure are the subject of copyright, the provider and the owner of the website. The subject of copyright, for the protection of whose rights this procedure is initiated, is either the author or another subject of property copyright. It is substantiated that it is advisable to extend the extrajudicial procedure for copyright protection to the protection of moral rights (such as the right to a name, the right to preserve the integrity of a work, etc.). In the absence of relevant changes to the law on copyright, it is possible to apply the analogy of the law. It is concluded that unlike the previous copyright law, which allowed the use of the TAKE DOWN NOTICE procedure only for certain objects, such as audiovisual works, musical works (with or without text), computer programs, phonograms, videograms, programs (transmissions) of broadcasting organizations that are in electronic (digital) form, the new approach of the legislator expanded the list of objects of copyright and related rights that may be the subject of protection, and may refer to any object of copyright (and related rights), which falls under the concept of digital content. It is highlighted that a statement on the termination of copyright infringement in the digital environment is a position exclusively of the subject of the appeal (that is, the position of the right holder), which may be unfounded and unfounded. Therefore, the owner of the website (web page) can defend himself and prove the legality of the presentation of digital content on his website (web page) by providing evidence that he has the appropriate copyright for the use of this content or that he has permission for such use. It is established that the right holder may not always be able to identify the owner of the website or web pages, as the registrars, guided by the legislation on the protection of personal data and GDPR, do not publicly disclose information about natural persons - the owners of the website. It is stated that in the event of a dispute regarding the legality/illegality of placing certain digital content on the Internet, the right holder shall provide the hosting provider with confirmation of the opening of court proceedings on the protection of copyright for the object placed as digital content, in respect of which an application for termination of infringement. It is substantiated that submitting an application for the termination of copyright infringement in written form is possible only at the stage of submitting the application and receiving a response to it, because in the future all correspondence between the copyright holder, the owner of the website (web page), the provider will take place only in electronic form, because in the opposite case it is impossible to comply with short deadlines (24-48 hours) for taking certain actions, which are provided by law. It is proven that returning to the written form of correspondence within the framework of the TAKE DOWN NOTICE procedure is impractical. It is established that the owner of a website or web page is not liable for copyright infringement committed using the Internet, if within 48 hours after receiving a notice of termination of the violation, he has prevented access to the digital content referred to in the notice.

The establishment of criminal offences for copyright infringements has a long history under certain national copyright laws, including the laws of Australia and Malaysia. A new stage in the evolution of criminal laws for copyright infringements was, however, reached in the mid-1990s with the introduction of the first international standard for criminal enforcement measures, in the form of Article 61 of the Trade-Related Aspects of Intellectual Property Rights Agreement (the ‘TRIPS Agreement’). The Article 61 standard, which is the current international standard, criminalizes, among other things, wilful copyright piracy on a commercial scale and compels WTO Members to impose ‘imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.’ The Article 61 standard, however, could potentially be eclipsed by new, and potentially more severe, standards of criminal enforcement measures which are being proposed and negotiated between countries to be included in emerging multilateral treaties, namely the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. The attempts to strengthen the international standard for criminal enforcement measures have resulted in considerable controversy, partly due to the expansion of the scope of conduct being criminalized. The recent and ongoing controversies concerning the application of the criminal law to copyright infringements are related to more general controversies regarding the purpose and proper scope of copyright protection, especially in the digital environment. In view of the apparent movement towards increasingly prescriptive international standards of criminal enforcement measures, and bearing in mind that copyright infringements have historically been essentially regarded as private wrongs, there is an urgent need for a principled analysis of the application of the criminal law to certain forms of copyright infringement. This thesis examines this general issue by addressing two key research problems: • whether the criminalization of copyright piracy on a commercial scale is legitimate; and • if so, what are the objectives of imposing criminal sanctions and, in light of the objectives, what are the appropriate levels of criminal punishment for copyright piracy? Although the subject of much current debate, these issues have been under-researched in the academic literature. In relation to the first research problem, applying Joel Feinberg’s version of the Harm Principle, the thesis tentatively concludes that there is a prima facie case for criminalizing intentional or reckless acts of copyright piracy on a commercial scale. In relation to the second research problem, the thesis establishes that the overarching objective of establishing criminal penalties in Article 61 is to deter serious copyright infringements, essentially meaning intentional piracy on a commercial scale. In accordance with this objective, the penalties set by national enforcement regimes should be assessed by reference to the principles arising from the ‘deterrence theory’ of criminal punishment. Focusing on the Australian and Malaysian penal provisions, the thesis assesses whether the level of penalties set in the relevant criminal provisions comply with deterrence theory, in that they are sufficiently severe to deter infringements, but nevertheless proportionate. Accepting that the Article 61 standard requires that the penalties to be made available must be consistent with the ‘level of penalties’ applied to ‘crimes of a corresponding gravity’, and that most commentators on the TRIPS Agreement agree that offences for non-violent theft are ‘crimes of a corresponding gravity’, the thesis uses the penalties set for such offences as benchmarks for assessing the penalties set by representative criminal provisions under the relevant national copyright laws. The thesis demonstrates that the penalties set in the Australian and Malaysian penal provisions prima facie comply with the current TRIPS standard, which is inherently flexible. Further empirical research on factors such as the current enforcement and sentencing practices, however, is necessary to arrive at a definitive conclusion on the extent to which the criminal penalties set under Australian and Malaysian law represent an effective, but proportionate deterrent. Reflecting the complexity of the issues in this controversial area, many of the conclusions reached in the thesis are tentative and qualified. Nevertheless, the analysis of the two key research problems undertaken in the thesis represents an advance over the extant literature by establishing a rigorous conceptual framework for addressing the two key research problems, which hopefully may guide future research in this area. The law in the thesis is as at 23 June 2014.

Copyright Infringement in the EU Digital Single Market

The Japanese Copyright Law celebrates its 50th anniversary in 2020. The biggest change surrounding Copyright Law in the last 50 years is development of digitalization. Digital archives made steady progress in developed countries. In 2004, Google announced its book search project Google Books. Google Books digitalized books provided by libraries and publishes and made them searchable. In 2005, Europe launched Europeana. Europeana is a web portal created by the European Union (EU) containing digitalised museum collections of more than 3,000 institutions across Europe. To make orphan works easier to use, EU enacted the Orphan Works Directive in 2008 and the Digital Single Market （DSM）Copyright Directive in 2019. DSM Copyright Directive introduced extended collective licensing(ESL) system. In Google Books copyright infringement law suits, the US federal courts accepted Google's fair use defense. In 2015, the US Copyright Office published report on orphan works, but did not introduce ECL after receiving public comments that orphan woks problem could be solved by fair use. South Korea tackles orphan works problem actively and started copyright reform including ECL. This presentation suggests measures for Japan to accelerate her snail's pace copyright reform.