Public Performance Rights Research Articles

Ines Johnson-Spain, director. Becoming Black. 2019. 91 minutes. German and French, with English Subtitles. Juno Films. $149 w/o or $349 w/ Public Performance Rights.

Ines Johnson-Spain, director. Becoming Black. 2019. 91 minutes. German and French, with English Subtitles. Juno Films. $149 w/o or $349 w/ Public Performance Rights.

The Future of Music Copyright Collectives in the Digital Streaming Age

The Future of Music Copyright Collectives in the Digital Streaming Age

Cable Television and the Aereo Case Then and Now

The Supreme Court will soon confront whether Aereo’s service – which affords subscribers access to over-the-air television signals through the use of dime-sized, customer-specific antennas and remote digital video recorders – infringes the Copyright Act’s public performance right. In endorsing the Second Circuit’s decision holding that Aereo does not infringe, some advocates have suggested that such disruptive digital age technology is well beyond what Congress contemplated when it drafted the “Transmit Clause” of the public performance right nearly 50 years ago. Our exploration of the history indicates otherwise.The drafters of the Copyright Act of 1976 had greater foresight than the Second Circuit recognized. As the 1965 Supplementary Report of the Register of Copyrights emphasizes, “it is becoming increasingly apparent that the transmission of works by nonprofit broadcasting, linked computers, and other new media of communication, may soon be among the most important means of disseminating them, and will be capable of reaching vast audiences. Even when these new media are not operated for profit, they may be expected to displace the demand for authors’ works by other users from whom copyright owners derive compensation.” The following year, Congress explained its intent in crafting the public performance right to cover transmissions of performances “whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Its 1966 report notes that liability would arise “whenever the potential recipients of the transmission represent a limited segment of the public, such as...the subscribers of a community antenna television service.” It noted that the “same principles apply...where the transmission is capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public” – language that comes eerily close to describing Aereo’s service.It is difficult to imagine the drafters not considering Aereo to fall comfortably within their conception of a public performance right, especially when considered in light of the drafters’ stated intention that the statute be interpreted broadly so as protect against the “real danger” of confining the “scope of the author’s rights on the basis of the present technology” in the face of even “unforeseen technical advances.” When Congress’s development of the retransmission compulsory license is added to the mix, the case for liability becomes airtight. After 1966, the governing law affecting cable television evolved considerably. After the Supreme Court determined that cable television services do not implicate the copyright owner’s rights, Congress added Section 111 as part of its stated intention to legislatively reverse the Court’s Teleprompter and Fortnightly rulings. This provision establishes a detailed compensation regime whereby cable services are charged for sending over-the-air signals to their subscribers. Retransmission of those signals absent compliance with the provisions set forth in Section 111 or authorization from the copyright owner constitutes copyright infringement. Over the ensuing decades, Congress has cemented this proposition time and again.When taken together, the text, structure, and legislative history of the 1976 Act establish that Congress intended its public performance right to reach the Aereo service.

Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This article will first address the international norms that domestic laws of states member to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the EU and the US, have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under US and EU regimes, despite their apparently different approaches, in fact diverge.

Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This Article will first address the international norms that domestic laws of states members to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the E.U. and the U.S., have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under U.S. and E.U. regimes, despite their apparently different approaches, in fact converge.

Copyright for Movie Night: Film Screenings on Campus

I undertook this paper so that I, along with other librarians and educators, could better understand how to comply with copyright law, conserve university resources, and streamline services to students regarding the procurement of public performance rights (PPR) for films and other audiovisual resources. Student groups frequently screen films on campuses, and accepted legal interpretations of sections 101 and 106 of the 1976 Copyright Act indicate that a specific license should be sought for any public performance of a copyrighted audiovisual work. My review of PPR information on the public websites of the 38 members of the ORBIS-Cascade Alliance (an academic library consortium in the Northwest) points to the potential for greater collaboration with student affairs professionals and other campus departments to provide more accurate and complete information about PPR and library audiovisual resources (e.g., DVDs or streaming media) that have PPR attached. Campus-focused resources about PPR should include information about fair use, educational exemptions, public domain, open licenses, and library-licensed content that comes with PPR. The academic library community could undertake a project to enhance the accessibility of accurate and supportive PPR information to student groups by creating tools or best practices. This area is ripe for more current research.

Why the Copyright Act Expressly Preempts State-Level Public Performance Rights in Pre-1972 Recordings

Over the past several years, two former bandmates in the 1960s rock group, The Turtles, have initiated several lawsuits against the popular music streaming services, Pandora and Sirius XM, arguing that the band owns common law copyrights in the sound recordings of its songs, and that these state-level copyrights grant the band an exclusive public performance right in its sound recordings. If accepted, this argument has the potential to significantly distort federal copyright policy because states would not be constrained by any of the balancing features of the Copyright Act, including Digital Millennium Copyright Act (DMCA) safe harbors for Internet Service Providers (ISPs), statutory licenses under 17 USC § 114, or even the limitations, such as fair use, in §§ 107 through 122. In spite of how detrimental state-by-state copyright policymaking could be to Congress’s policy choices embodied in the Copyright Act, federal courts have not applied any form of preemption that would prevent states from legislating at will in this area, because § 301(c) appears to contain a disavowal of preemption for any state law dealing with pre-1972 sound recordings. This note advances an interpretation of § 114(a) that would expressly preempt state-level public performance rights in pre-1972 sound recordings as well as an interpretation of §301(c) that would greatly narrow the scope of the disavowal of preemption, allowing federal courts to strike down state laws that severely distort federal copyright policy.

Beware the Ides of February: Kaleidoscoping Key Participants’ Public Performance Rights or Lack Thereof in Pre-1972 Sound Recordings

Much of the flurry of recent music owes a debt to the melodies of immortal tunes. Each United States state legislature — or each state’s highest court, at the very least, should a case ever progress to that level in a given state — should, within reason, grant living performers and their heirs a right to public performance in pre-1972 sound recordings on which the former, or the latter's ancestor, performs, even one that is not exclusive, in the realm of their dissemination via digital streaming services, both subscription-conferring (Google Play) and non-subscription-conferring (YouTube) and/or satellite radio. At the very least, temporarily expanding that right to performers under state statutory law is necessary. The pressing starting point here is background. Federal law cautiously fills in the blanks to inform readers. What follows, then, is a cross-country review of state law from the states’ highest courts and possibly legislatures, beginning with the law of the states which may soon allow a common law public performance right for pre-1972 sound recordings, with a review of the skeptical states. The catch is whether to zoom in on whether composers-creators should wield such a right, and/or recording artists or performers, and/or copyright holders (who tend to be the recording companies, also known as producers abroad), and/or broadcasters, and then there is the question of how to balance that right with public consumption.

Out of Tune: How Public Performance Rights Are Failing to Hit the Right Notes

Out of Tune: How Public Performance Rights Are Failing to Hit the Right Notes

Oldies in the New Digital Age: Evaluating Patches for the Pre-1972 Copyright Glitch

In the late-2014 case Flo & Eddie, Inc. v. Sirius XM, Inc., a federal district court in California held in that a state statute granting pre-1972 sound recording copyright holders “exclusive ownership” granted “all rights that can attach to intellectual property, save [for a] singular, expressly-stated exception for making ‘covers’ of a recording.” Most controversially, the court held that this “exclusive ownership” under state law included a public performance right. Two months later, a federal district court in New York reached a similar result based on New York state common law. Commentators writing on the subject have largely decried the Flo & Eddie decisions as an exploitation of a glitch in the way that the copyright system currently works with respect to pre-1972 sound recordings. The author agrees with that general sentiment and believes that the recent Flo & Eddie decisions are fundamentally at odds with the copyright system’s overall balancing act of working to “promote the Progress of Science and useful Arts.” Instead of rehashing arguments to that effect that have been forcefully made elsewhere, this article assumes that there is indeed a problem (the “glitch”) in the copyright system and focuses on finding the best path forward to fix (“patch”) it.

LISENSI PENGUMUMAN LAGU ATAU MUSIK DALAM PERSFEKTIF HUKUM PERDATA

The right to announce song or music, Which called in international with the performing rights or the public performance right is a part from economic right the creator of song or music. When its parsed, the right to announce consist of broadcast right, demonstrating right, announcing or utters right, as well to communicate song or musci right to the public. If so in announced right song or music bring in economic benefits to the creator of song or music, therefore needs to be given license to the user citizen song or music. However, in giving those license, might be effective, needs to be presence any institution License of principle and Collector Royalty in togetherness, that called as Collective Management Organization (CMO). Practically that has been held this periode in Indonesia, the granting of announcement license song or music is not doing by the creator or the holder copy right, but the State Public Institution (LMK) in blanket license form. So, State Public Institution with handing the representative letter from the creator of song or music giving license to useful song or music, to collect the Royalty, and then to distributing the Royalty to the people who has authority. At the view of private law, the announcement license of song or music is like an agreement what ought to have maded in written form. Its can not consist of rules which is able to harmful the state economic dan can not contain s of many things that contrast with the rule of laws. In other hand, that can be binding to the third side, therefore these license agreement of copy right must be noted in the Ministry of Law and Human Rights Indonesian Republic of Indonesia, the Directorate General of Intelctual Riches. Thereby the announcement of license song or music based on to the Private law include Formal Agreement type and from the management is an Annonymous Agreement (Onbenoemnde contract) or General Agreement type.
 
 Keywords: lisensi; pengumuman lagu atau musik

Assessing safe spaces for digital scholarship in the library

INTRODUCTIONDigital scholarship is an emerging trend in multiple academic disciplines. Faculties in the humanities, social sciences, and Science, Technology, Engineering and Math (STEM) fields are teaching students new forms of research, rhetoric, expression, and visualization of data using emerging media. Their students learn text encoding, data carpentry1, how to build online collections and exhibits, and how to make their work accessible to the public-while complying with copyright, fair use, public performance rights, and digital rights management. Academic libraries attempt to keep up with these trends by providing digital scholarship centers, digital media studios, creativity labs, makerspaces, co-working spaces, and other physical spaces that support this type of interdisciplinary experiential learning. Students curious about coding, digital storytelling, and other forms of digital scholarship can thus seek a safe place to learn these skills among peers and friendly, helpful mentors.The purpose of digital scholarship is not simply to learn about technology, but also to use new media and technology to improve the human condition. When planning spaces for digital scholarship, academic libraries focus on furniture, hardware, and software. People, including employees who will work in the space and patrons who will occupy and use the space, are often a secondary focus. While library employees who work in spaces for digital scholarship may have the technical and pedagogical expertise necessary for such work, they may not have the training required to create a safe space for digital scholarship. In fact, the organizational culture of the library itself may not reflect the open, exploratory, collaborative philosophy that shapes the culture of digital scholarship.Most publications praise digital scholarship in libraries as a smart practice, but do not address potential cultural barriers that could hinder library-generated digital scholarship initiatives. This blind spot creates the illusion that all academic libraries have a culture that would create safe, open spaces for digital scholarship. For this reason, libraries engaged in digital scholarship initiatives should reassess and change their culture in order to re-envision the library as a safe space for digital scholarship. This would include developing a safe space within the organization for library employees to explore emerging technologies and media to learn new skills, as well as building safe spaces for collaborative learning among mixed groups of library employees, faculty, and students.DEFINING DIGITAL SCHOLARSHIP AND SAFE SPACEBefore defining digital scholarship and how it manifests in libraries, it is important to provide a definition of safe space. People often describe the library as a sanctuary for those who are different, as well as a safe space for learning (Brewster, 2014; Maxwell, 2006). In reality, academic library environments created by library employees have the potential to be unsafe for innovation and learning (Madriaga, 2010; Mickiewicz, 2015).Definition of Safe SpaceThe definition of safe space in the higher education environment is a space where faculty, staff, and students can feel secure and free to express themselves, learn, and achieve without censure or harm (Booker, 2007). Moderators of a safe space, whether physical, virtual or conceptual, construct this space with ground rules for discourse and behavior (Ada Initiative, 2015a; Ada Initiative, 2015b; Booker, 2007; Fembot Collective, 2014; Gay, Lesbian, and Straight Education Network, 2015; Jones, 2009; Marchon, 2015; Pho & Masland, 2014; Robsinson, Sterner & Johnson, 2006; Ruggs & Hebl, 2012; Thorne, 2014). Academic and technology-related conferences have begun to establish and enforce such ground rules in order to prevent sexual harassment, verbal abuse, and other behaviors that negatively impact peoples' ability to learn and share as respected equals (Ada Initiative, 2015a; Ada Initiative, 2015b; Fembot Collective, 2014). …

Green Fire: Aldo Leopold and a Land Ethic for Our Time . A film by Ann Dunsky, Steven Dunsky, and David Steinke. Oley: Bullfrog Films, 2011. 73 minutes (also 57-minute version), subtitles in English and six other languages. DVD with public performance rights $295.00.

<i> Green Fire: Aldo Leopold and a Land Ethic for Our Time </i>. A film by Ann Dunsky, Steven Dunsky, and David Steinke. Oley: Bullfrog Films, 2011. 73 minutes (also 57-minute version), subtitles in English and six other languages. DVD with public performance rights $295.00.

The Revolution Was Not Televised: Examining Copyright Doctrine after Aereo

In Aereo, the Supreme Court rested its holding on Aereo's similarity to cable, the technology to which Congress responded when crafting the current public performance right. Despite the Court's narrow focus, the case may significantly impact the contours of copyright doctrine in many contexts. This Note examines the doctrinal impact of Aereo by explaining the case and its implications for the public performance right. Though the Court sought to cabin its holding, it exerts force on existing doctrine. This Note will show that the Court’s decision achieved two doctrinal results: (1) it transformed the “volitional conduct” test for establishing direct copyright liability into a proximate cause inquiry, and (2) it clarified what constitutes the “public” for purposes of the Transmit Clause, focusing on the relationship between the recipient of a transmission and the underlying copyrighted material.

The Limits of Acknowledgment of Public Performance Rights in the Korean Copyright Act

The Limits of Acknowledgment of Public Performance Rights in the Korean Copyright Act

Asking the Right Questions in Copyright Cases: Lessons from Aereo and its International Brethren

Aereo was a US-based service that made unique copies of broadcast programs from individual antennae for each requesting user, for individual retransmission near-live or at some point in the future. To the uninitiated, it makes no sense for a company to design a television transmission service that utilises thousands of tiny antennae and thousands of copies to deliver signals to users. Wouldn’t it be much more efficient to use just one of each? And surely, when it comes to copyright liability, wouldn’t more copies result in more infringement, not less? However, Aereo’s strategy made a lot of sense when viewed through the prism of US copyright law as then interpreted. In this paper we argue that US judicial decisions focusing on the “wrong” questions in assessing liability for copyright infringement directly encouraged Aereo’s business model. We then discuss the Supreme Court’s recent ruling that Aereo’s transmission of signals “near-live” does fall within the scope of the exclusive right of public performance, and argue that, in correcting the Second Circuit’s erroneous inquiries, the Supreme Court raised some “wrong” questions of its own. We also examine the legal responses to Aereo’s predecessors in Singapore, Japan, Australia, Germany, France and the EU to determine whether similarly “wrong” questions have distorted copyright analysis elsewhere. Finally, we use the insights from that international study and Aereo to identify what the “right” questions might be.

도서관에서의 공연권 제한에 관한 연구

저작권법이 규정하는 ‘공연’은 상식적으로 생각하는 공연의 개념보다 훨씬 그 폭이 넓다. 저작물을 가창, 연주, 연술하는 실연 행위뿐만 아니라 음반이나 영상물을 공중이 열람할 수 있도록 상영하는 행위까지도 모두 저작권법이 규정하는 ‘공연’에 해당이 된다. 저작권법 제29조는 공연권의 제한 사유에 관한 것이다. 제1항은 영리를 목적으로 하지 아니하는 공연과 방송에 대한 저작권 제한 사유를 규정하고 있으며, 제2항은 판매용 음반과 판매용 영상저작물을 활용한 공연에 관한 면책 요건을 규율한다. 최근 도서관의 저작물 공연이 저작권법의 주요 이슈 가운데 하나가 되고 있다. 그 가운데에는 도서관 관내에서의 영상물 열람도 공연에 해당되고, 발행 후 6개월이 경과되지 않은 저작물을 서비스할 때에는 저작권자의 사전 허락을 받아야 한다는 주장도 포함되어 있다. 이러한 주장은 정상적인 도서관 서비스를 불가능하게 만드는 것이어서 부당하며, 도서관에서의 저작물 열람과 공연을 구분할 수 있는 입법적인 조치가 시급히 이루어질 필요가 있다.

Viacom v. Youtube: Should the Second Circuit Protect Youtube?

Viacom sued YouTube for more than $1 billion for copyright infringement because hundreds of thousands of clips from Viacom programs have been uploaded to YouTube without Viacom’s permission. These Viacom programs have been viewed more than 1.5 billion times. (Viacom is not claiming that remixes and mashups are infringing, only verbatim copies of the whole or substantial parts of the programs.) The direct infringement claims are for violation of the public performance, public display, and reproduction rights. The indirect infringement claims are for inducement of infringement, contributory infringement and vicarious infringement.

John Philip Sousa and “The Menace of Mechanical Music”

AbstractIn 1906Appleton's Magazinepublished John Philip Sousa's most celebrated—and vitriolic—article, “The Menace of Mechanical Music.” In it Sousa predicts that piano rolls and recordings will end amateur music making in the United States. Modern writers have often condemned Sousa as a hypocrite (the Sousa Band was itself a major recording ensemble) and chastised him for failing to see the cultural and financial benefits of mechanical music. But, in fact, Sousa's article was part of a larger scheme to gain public support for the 1909 copyright revision. It was also just one step in Sousa's lifelong battle for composers' rights, a battle with five distinct phases: (1) the debate over the right of public performance precipitated by the success of Gilbert and Sullivan in the United States, (2) a test of the limits of contractual obligations between performers and managers, (3) the instigation of an international copyright law, (4) the battle over mechanical rights, and (5) the ability of the American Society of Composers, Authors and Publishers (ASCAP) to collect royalties as related to public performance.

A Performance Right for Recording Artists: Sound Policy at Home and Abroad

A performance-right for recording artists would correct a needless exception in U.S. copyright law. In addition the Passage of the Performance Rights Act would harmonize U.S. copyright law with those of other countries, benefiting both U.S. recording artists and the U.S. economy.Unsuccessful arguments made for lack of performance rights for over-the-air broadcasts: promotional value for the recording artist and the public interest obligations put on broadcast platforms. Neither argument is persuasive. If one party invests in and creates a resource with value to the public, governments should not let others appropriate that resource for their own commercial gain just by showing that the creator might therefore derive some incidental benefit. While airplay may indeed have some promotional benefit to the recording artist, the recording artist also confers benefits to the radio broadcasters by producing songs that people want to hear. Therefore, one party should not possess property rights while the other does not. Moreover, the artist now has multiple channels to exploit for promotional purposes, bringing to question the actual promotional value of the broadcast medium.As for the argument that over-the-air broadcasters should be exempt from performance rights because they are saddled with public interest obligations that other platforms are not, such burden of public interest obligations should cause policymakers to re-think broadcast regulation, not punish performers.Lack of public performance rights puts the U.S. at odds with laws in other countries. As a result, U.S. artists do not receive performance royalties abroad in reciprocation of the failure of the U.S. to compensate foreign artists. The lack of a general public-performance right for sound recordings unquestionably constitutes a net loss to U.S. artists, the U.S. music industry, the U.S. economy, and U.S. credibility as an advocate of reasoned, harmonized, and effect copyright policy.