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Straight Talk Media & Entertainment

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For most people, the ins and outs of copyright are a complete mystery and are something for someone else to worry about. Copyright protection has been around for longer than soundcarriers have been bought and sold. In the mid-nineteenth century, three French composers were successful in forcing a Paris café to pay for the use of their music. That led to the creation of the French authors' society SACEM under the Second French Republic, and the rest, as they say, is musical history.

The shift from physical format ownership to downloads, and more recently music streaming, nudged copyright into public consciousness, particularly in the US with trade association the RIAA's failed efforts to put a lid on the rise of unlicensed file sharing through legal action against individual internet users. Moreover, a number of national consumer surveys over the years have shown that a surprising number of consumers are aware of the rights and wrongs of copyright and the consequences of engaging in copyright infringement. However, most remain blissfully unaware of what the small print around the outside of a CD or the terms and conditions of a download sale are all about.

When it doesn't always go to plan

Copyright certainly affords necessary protections to musical works and usually ensures that rights owners are paid when their music is used. However, it doesn't always go to plan. In the US, a long-running case between two ex-members of the 1960s band The Turtles and the online radio service Pandora is drawing to a close. An unusual quirk in US copyright law means any musical work fixed in copyright before February 15, 1972, is regulated by a jumble of state law and common law and so doesn't have an exclusive public performance right. In simple terms, that means non-interactive digital broadcasters, such as Pandora, don't have to pay royalties to record companies and performers when they broadcast recordings fixed in copyright before the February date. They do, however, pay royalties for music created after the date as a law change meant musical works came under federal copyright protection. So, bizarrely, a piece of music fixed in copyright on February 14, 1972, has no public performance right, but one fixed the next day does.

Moves are afoot to close this peculiar loophole: In July last year, US Congressman Darrell Issa (R-California) and Jerrold Nadler (D-New York) introduced the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (CLASSICS Act), aimed specifically at bringing a number of elements of older sound recordings under federal copyright protection and in line with the rights afforded to modern recordings.

Slow moving but essential

Anyone following copyright law developments in the US will know that they usually move at snail's pace (or, in this case, turtle speed). Also, moves to beef up rights protection are often resisted by big tech companies to avoid paying out higher royalty rates. Resistance and lobbying from the likes of Apple and Google can often be the reason law amendments take so long to pass, or fail to be enacted at all. But, it is worth remembering that behind the rapidly evolving digital music sector and the billion-dollar companies operating in the music space is an often-unseen system of rights protection that ensures authors and publishers receive what is owed. The ex-Turtles members will probably lose their case against Pandora and will be forced to sit on their hands and listen as digital broadcasters earn advertising dollars on the back of their recordings. The CLASSICS Act should go some way to restoring harmony, but don't expect the discussions and deliberations over the rights and wrongs of copyright to end anytime soon.

Straight Talk is a weekly briefing from the desk of the Chief Research Officer. To receive this newsletter by email, please contact us.

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