Thursday, April 5, 2007

David Byrne on Net Radio

David Byrne and Danielle Spencer wrote a good article on the importance of internet radio.

I do want to clarify something that Danielle Spencer wrote:

While traditional terrestrial radio does pay songwriter/publishing royalties for the musical work itself, in the U.S. they don’t pay performance royalties for the sound recording under the rationale that airplay promotes the songs, which benefits the copyright holders. (This determination was mostly due to the radio industry lobbying congress not to collect these royalties.)
This is not historically accurate - this is the version of history that the RIAA likes to propagate! When the original copyright laws were written, Congress realized it was granting a legal monopoly to the copyright holder. So in order to balance out that government-given monopoly it also added provisions for fair use and public rights, such as copying for personal use, exemptions for libraries, and exemptions for radio broadcasters. Fair Use is These public rights are an important part of the American way. We are one of the few countries in the world that have it fair use and other public rights defined in our law. Like freedom of the speech, it is a foundation of our culture. But the RIAA wants to change this, and they're doing it by chipping away at the law.

Can you imaging the outrage if over-the-air radio suddenly was forced to pay huge amounts of money to play music? Music radio would go away, and become all talk radio. Payola would return in a new form: the only music you would hear on the radio is music that the record labels granted permission for broadcasters to play. The labels would then control the music that got played over the air to the public - which is something they have always wanted to do anyway.

Many people, including myself, think that this is all about control and not money. The labels want to control what music the public hear- they want radio to only be an extension of their marketing efforts. So if they can't bribe stations to play the music they want them to play, they went for legislation that says stations have to pay for everything other than the music the labels want them to play.

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3 Comments:

Blogger DJ Randall said...

Your take on this issue is simply not correct, and seems ill informed.

First of all, "fair use" rarely plays any part whatsoever in commercial exploitation of protected works -- this includes the exclusive public performance right. The doctrine of fair use is understood to protect mostly non-commercial and educational uses as well as those uses that pertain to criticism and news reporting by consumers because those are most applicable to the greater public interest.

Second of all, "fair use" according to the U.S. Copyright Act is intended to provide a safe harbor from liability for activities that would normally be deemed "copyright infringement." However, there wasn't even an exclusive right to public performance in sound recordings until the passage of the Digital Performance Right in Sound Recordings Act 1995. Therefore, fair use couldn't possibly have any bearing on the reformation of the Copyright Act in 1976. Currently nightclubs, restaurants, theme parks, skating rinks, and FM radio stations are free to publicly perform sound recordings without any royalty obligation because of a loophole in U.S. copyright law.

Third of all, I have it on good authority from nunmerous veteran FM radio broadcasters -- all of whom have been in the industry for most of their life -- that it was in fact the National Association of Broadcasters in the mid-1970s that lobbied Congress and demanded that radio stations be exempt from paying royalties to record labels. The NAB was a very, very powerful force on Capitol Hill at that time.

Some of the propaganda in this blog post is almost as suspect as what the RIAA is pushing around the media lately. Record labels and recording artists absolutely deserve royalties for any public performance. And I hope that SoundExchange can finally give FM radio broadcasters what they've so long deserved -- a nice fat royalty invoice.

April 18, 2007 8:38 PM  
Blogger Rusty Hodge said...

DJ Randall- you're right, I used the wrong term. "Fair Use" is a (I think you say) "term of art" with specific meanings. I should have said "exemption to copyright" and not fair use.

You say that ``restaurants, theme parks, skating rinks, and FM radio stations are free to publicly perform sound recordings without any royalty obligation because of a loophole in U.S. copyright law``. Yet as you say, that "loophole" didn't even exist until copyright reform in 1976.

I'm just saying that this isn't a loophole. In 1947 when Copyright law was made into title 17 of U.S. Code, sound recordings were quite common. Radio broadcasting was commonplace. It was not an accident that it was decided that it was in the public interest to allow sound recordings to be performed publicly.

So strike my words about fair use, and replace them with "in the public interest".

And of course the NAB lobbied against the RIAA in the 70s. The RIAA was pushing for revocation of the sound recording performance and the NAB was pushing to preserve it.

You also say: ``Record labels and recording artists absolutely deserve royalties for any public performance. And I hope that SoundExchange can finally give FM radio broadcasters what they've so long deserved -- a nice fat royalty invoice.``

But you know that isn't going to happen in the mainstream world - because the Infinitys and Clear Channels of the world will do direct deals with the majors (just like slacker.com did) and will be able to get content FOR FREE as long as they're pushing the music the major labels want them to push. If you think over-the-air radio sucks now, wait until you hear it after those deals are done.

April 18, 2007 11:40 PM  
Blogger Inboulder said...

Just a heads up, I think your blog is done broke, maybe it was the boing boing link or RIAA crackers, but only one post works and there are weird dupe digg.com artifacts etc...

April 26, 2007 6:35 PM  

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