Streaming Fees Considered – Brief Article
Library of Congress’s Copyright Office is stepping into battle between radio and recording industries over whether stations which stream their broadcast signals online must pay license fees for use of music. At request of RIAA, Copyright Office called for comments on whether Webcasting qualifies for broadcasters’ traditional exemption from copyright liability. Comments are due April 17, replies May 1.
Dispute is fallout from Digital Millennium Copyright Act (DMCA) of 1998, which at behest of Webcasters led by Broadcast.com (now Yahoo Bcast.) created new compulsory license for Webcasts. “There is no logical reason why the same radio signal should be subject to liability when retransmitted over the Internet by a third party aggregator acting on behalf of a broadcaster, but exempt when transmitted by the broadcaster itself,” RIAA argued in petition.
However, broadcasters maintain they’re governed by older copyright law that specifically exempts them from copyright payments. As advised by NAB, about 1,000 stations filed with Copyright Office in Dec. stating intent to seek new licenses, but adding that they didn’t believe they needed them.
Negotiations “have not advanced beyond the preliminary stage,” RIAA told Copyright Office, because parties can’t agree on basic legal question of whether broadcasters should have to pay anything, let alone what they should pay. “Unless and until the Copyright Office speaks to the issue, there is virtually no possibility that RIAA will be able to convince the broadcasters to engage in meaningful negotiations.” It said dispute also is spilling over to non-broadcast Webcasters, “who argue, however incorrectly, that their rates and terms should vary depending upon” broadcasters’. RIAA said if Copyright Office doesn’t set rules, “various parties could end up engaging in multiple lawsuits in different forums throughout the country.” “We have not been in negotiations with the RIAA,” NAB spokesman confirmed. “Our position is… we don’t believe we are required to pay performance rights for streaming of signals over the Internet.”
Broadcast lawyer said radio stations can’t afford new fees just “to be a part of the digital age.” Harvey Kellman of Rini, Coran & Lancellotta, which represents broadcasters, said stations are finding “a lot of people coming with their hands out” since they started streaming signals, including BMI and ASCAP. “It’s distressing for broadcasters,” he said, “The position is, ‘Hey, we help you guys sell records. Why are you charging us?'”
RIAA lawyer Steven Marks said: “We are looking forward to mutually beneficial and rewarding relationships with Webcasters.” He said broadcasters’ payment-free use of recordings over air is “historical anomaly” that shouldn’t be used as precedent for Internet or any other medium.
Proceeding could be first of several, with many details having to be worked out should broadcasters be found liable for payments. There then would be question of whether payments would be in form of new compulsory license, possibly to be resolved by Copyright Arbitration Royalty Panel (CARP). CARP proceeding “is likely to be one of the most complicated in [Copyright Office] history,” RIAA said.
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