Before we set out on the basics and changing landscape of music licensing. I'd like to outline the "players" in the music business.
The first thing to note is the difference between the songwriter and the performer. A large portion of the songs we hear on the radio, Spotify, iTunes, etc, have writers that are different than the performers.
The songwriter (usually) assigns his rights to a publisher (read http://www.ascap.com/home/music-career/articles-advice/ascapcorner/corner1.aspx)
The publisher administers the songwriter’s compositions in exchange for the copyright.
If the publisher does their job well, hopefully another musician (the artist) wants to record the songwriter's composition. The record label represents the artist.
Here is a summary: (http://www.youtube.com/watch?v=dXmk2kcoxBM)
Now we know who has a stake:
Compulsory licenses are an exception to the copyright holder's exclusive rights to reproduce (duplicate) and perform their copyrighted work. The right to duplicate and the right to perform are distinct, and covered by separate sections of the Copyright Act. The right to duplicate requires a mechanical license under §115 of the Copyright Act. The right to perform requires a performance license under §114.
Suppose a company offers songs for digital download. Do they need to obtain a mechanical license or a performance license? Read United States v. ASCAP, 485 F. Supp. 2d 438. This outcome means that a license must be obtained from the songwriter, but not the artist. Does this make sense? It might seem to make sense if the song is being used for a private purpose. But what about downloading a ringtone that is a song, is that a private use? Read In Re Cellco Partnership, 663 F.Supp.2d 363.
For an introduction, read http://www.nytimes.com/2013/01/29/business/media/streaming-shakes-up-music-industrys-model-for-royalties.html
Non-interactive streaming/webcasting (e.g. Pandora, Sirius) requires only a performance license. §114(d) created a statutory license for certain categories of non-interactive transmissions.
Interactive streaming (e.g. Spotify) requires both a performance and a mechanical license. However, the mechanical license is not statutory, and must be negotiated between the record companies, publishers and mechanical license aggregator (the Harry Fox Agency: http://www.harryfox.com/public/AboutHFA.jsp).
Read http://www.copyright.gov/docs/regstat032207-1.html to learn about how the complexities of §§114 and 115 are applied to streaming.
Read about how record companies and digital music providers are attempting to negotiate around such ambiguities:
Read http://www.nytimes.com/2011/02/22/arts/music/22music-imslp.html?pagewanted=all
New developments allow artists to have a significantly more control over their rights than they used to. Take a look at these sites for examples of bypassing the publisher and record companies and letting artists deal directly with their rights online: Direct to fan businesses and licensing clearinghouses:
Does the availability of such resources mean that we should be less vigilant in regulation and enforcement of the licensing regime? Do these resources constitute self-help remedies for artists and songwriters?
Return to the syllabus.