What’s Up With Music Rights for Broadcasters and Webcasters? – A Presentation on Pending Issues

While this summer has perhaps not brought the big headlines in trade press about copyright issues involving broadcasters – particularly in the area of music rights – there still are many issues that are active. I addressed some of those issues in a presentation earlier this month at the Texas Association of Broadcasters Annual Convention. I did my presentation in conjunction with a representative of SoundExchange, where he covered the nuts and bolts of the obligations of broadcasters and webcasters to file royalties for the noninteractive digital performance of sound recordings (e.g. webcasting and Internet radio). While the rates for 2016-2020 are on appeal (see our articles here, here and here), these rates are effective pending appeal and webcasters need to be paying under them. In the Texas presentation, I covered some of the many other copyright issues that are on the horizon, many of which we have written about in the pages of this blog. The slides from my presentation are available here. They provide an outline of many of the pending matters.

The presentation covered the controversy about the Department of Justice decision on the ASCAP and BMI consent decrees, about which I wrote about here. That controversy continues, as the PROs seek judicial or legislative relief from the new DOJ requirement for 100 per cent licensing of split works (see my article for an explanation of what that means). In the interim, the radio industry is negotiating new royalties with both of these organizations, as the current license agreements expire at the end of this year (see our article here).

On the PRO front, we also talked about the settlements of the antitrust litigation brought by both the radio and TV industry over SESAC royalties (settlements about which we wrote here). Rates under the settlements, which will be decided by arbitration if not resolved by negotiation, are currently being worked on. I also mentioned that broadcasters may be soon hearing from Global Music Rights (“GMR”), a new PRO formed by Irving Azoff to represent songwriters who have withdrawn from ASCAP and BMI. GMR is already approaching some business music services for licenses and, I was told at the presentation, they have already reached out to some community radio stations.

Pre-1972 sound recordings are also still an issue, with state appeals courts looking at US District Court decisions in New York and Florida, trying to decide if a performance right exists in these recordings in these two states (we wrote about the NY appeal here, and the initial Florida decision here). It is possible that each state could decide the question of a pre-1972 performance royalty differently, as it is a state law question as to whether such rights exist. Also on appeal is the Federal question of whether most recordings of pre-1972 songs played by broadcasters are really pre-1972 sound recordings or, as a California District Court decided, if digitization of these recordings created a new post-1972 copyrighted work (see our summary of the District Court’s findings, here).

In the Texas presentation, I also mentioned the warning that I have provided before on these pages (see. e.g. my posts here and here), that the use of music in podcasts and other on-demand media is not covered by the public performance royalties mentioned above. Finally, while not dealing with music issues, I reminded broadcasters in attendance at the session that there are many copyright claims being raised about the use on station websites of photos or videos found online that have been used without consent of the photographer or other copyright holder. Everything online is not free for the taking – get permission if you plan to re-use photos or videos on your website or even on air (see my articles here and here).

Many of these issues, including the question of whether broadcasters should pay a performance royalty for the use of sound recordings in their over-the-air broadcasters, may be considered in Copyright reform legislation that has been kicking around Washington for some time (see our posts here, here, here and here). While not likely to happen this year with the distractions of the November election and its aftermath, these considerations may well come up again next year. So keep paying attention to these issues!