Re: Clear Channel ends streaming broadcasts ... please explain

[Garrett Wollman <wollman@lcs.mit.edu>]

<<On Sat, 4 Jan 2003 10:42:46 -0500, "tony schinella" <radiotony@attbi.com> said:

> However, it was my understanding that if a radio station pays the
> annual fee to BMI, they can broadcast BMI songs over the
> airwaves. So, why can't they broadcast on the Web?

By rights, they should be able to.  However, you have to understand
that ASCAP/BMI/SESAC (and SOCAN in Canada and PRS in the UK) represent
only part of the picture.  All of these organizations sell copyright
licenses for the performance of songs, under the *songwriter's*
copyright.

A specific performance of a song is also subject to copyright (or
``phonorecord right'', hence the P-in-a-circle) on the part of the
people who performed it.  For many artists and bands, this copyright
is assigned to a record company as a part of their recording contract.
Historically, broadcasts of recorded music were considered in and of
themselves to benefit the owner of the performance (by encouraging
record sales), so the record companies were not entitled to additional
compensation.

DMCA reversed that presumption with respect to digital broadcasting.
A copyright tribunal convened a few years ago by the Register of
Copyright (part of the Library of Congress) decided that the owners of
recording copyright were entitled to compensation for every listener
who receives part of the recording in digital form.  At the same time,
a compulsory-license scheme was set up, so that those who wished to
continue broadcasting could do so without having to make a separate
contract with every record company and/or artist whose music they
broadcast.  However, the fees and record-keeping requirements for this
license are so onerous that most stations simply discontinued
streaming, the added cost making an already-marginal business case
even less sound.

Non-commercial stations which receive CPB funding are exempt from this
regime, and have a different licensing scheme.  This is similar to
(although more restricted than) the compulsory licensing scheme for
ordinary broadcasts by non-commercial stations.

There are a few ways around this:

- Only broadcast live performances, subject to a specific contract
with the performers.

- Negotiate separate agreements with each copyright holder.  In some
formats and for some record labels this may be a practical option.

- Hope the record companies are too caught up searching dorm rooms for
pirated songs to notice you.

-GAWollman