Copyright Tutorial for Musicians
Copyright Tutorial for Musicians
Copyright Tutorial for Musicians

    Get Involved Today

    Funded by The New York State Music Fund, established by the New York State Attorney General at Rockefeller Philanthropy Advisors

    Have you composed a song? Are you wondering if you
    should cover it yourself or sign up with a record

    Do you want to use a small piece from another
    musician’s record in your song?

    Do you wonder how to get your music out

    Here’s what you need to know about how to protect your

    Slides to accompany this tutorial can be found here.

    Introduction: Why Should You Care?

    Musicians are creators and copyright law says that creators have a
    right to gain economic value from their creation. For example, if
    you write a song, you can charge money to let a movie studio or a TV
    station use your song in their sound track. The law gives these
    rights as an incentive for creation. It is thought that when
    creativity is encouraged, the public will be benefited because more
    art will be available to the public.

    Copyright law places very minimal
    on protection of creativity:

    • The creative work has to be fixed in a tangible medium. For
      example, if you compose music, the musical notations should be
      put down on paper or the music should be recorded on a cassette
      tape or CD.
    • The work has to be original i.e. it should be created by the
      author and should contain at least a small amount of creativity.
      If a work is copied, it is not original.
    • Protection is for a fixed duration.

    Copyright law allows you to gain economic value by giving you a
    bundle of rights in your music.
    These rights are not absolute and are subject to the rights of other
    creators and the public. However, if somebody uses your music without your permission
    and their use does not come within the scope of the limitations provided by law, you are
    entitled to significant relief for violation of your rights.

    Understanding your rights and their limitations is even more
    significant in the digital era. Digital
    technology is challenging established principles of copyright law.
    It has tremendously increased avenues of distribution open to
    musicians. It has also given rise to fears of greater infringement.

    Copyright law protects a vast array of creative productions, in
    addition to music — books, movies, paintings, photographs etc.
    All these creative productions are called “works”.

    Copyright Ownership

    If you own a copyright, you will be entitled to the bundle of rights
    granted by copyright law. Therefore, it is important to understand
    how ownership is defined and how you can use your rights.

    A few general propositions about ownership:

    The Author is the Initial Owner

    If you composed a song, you own the copyright. If you recorded your
    song, you own the copyright in the sound recording. For sound
    recordings it is important to remember that ownership can belong not
    just to the performer but also to others involved in the creation of
    the sound recording. However, the performer always has a copyright
    in the sound recording unless he/she assigns this right away by

    Ownership Can Be Assigned or Transferred

    Giving away the bundle of rights that constitute copyright is often
    called a grant. If the transfer is exclusive it has to be in
    writing. For example, if Alice composes music, she can give
    Bob an exclusive right to cover her composition for
    distribution in the United States and Carol the exclusive
    right to cover her composition for distribution in Europe. These are
    exclusive grants and have to be in writing.

    Works Can Be Made Available Under Terms More Favorable
    Than Copyright Allows

    The Creative Commons, an organization founded by a number of legal
    scholars, has developed a series of licenses that allows copyright
    holders to retain control over their works, but still make them
    available under terms more favorable than copyright allows. The
    copyright holder can choose to make the work available under a
    single license or a combination of licenses. For example, a
    copyright holder can permit use of the work only if it is used for
    noncommercial purposes and if the work is attributed to him, while
    retaining the right to make derivative works. Or he could make it
    available for derivative works, but require that the derivative
    works be made available under the same terms as the original.

    Creative commons has recently introduced a new sampling license
    under which artists are allowed to use portions of other
    artists’ works in sampling. Various artists are expected to
    offer their work to be used for sampling through the creative
    commons website. More information about the creative commons license
    is available on their website at

    Work for Hire

    Copyrights of works created by employees belong to the employer in
    the first instance. Also, specific categories of works created on
    commission can be works for hire, and therefore owned by the
    commissioning party, if the parties agreed to it in writing. These
    categories are:

    1. A contribution to a collective work.
    2. A part of a motion picture or other audiovisual work.
    3. A translation.
    4. A supplementary work, such as forewords, afterwords, pictorial
      illustration, map, chart, table, musical arrangements, or index.
    5. A compilation.
    6. An instructional text.
    7. A test.
    8. Answer material for a test or.
    9. An atlas.

    Works that do not fall under these categories cannot be considered
    works for hire even if the contract between the parties states that
    it is a work for hire.

    Joint Ownership of a Copyrighted Work

    When a group of musicians together create a composition or when a
    band creates an album, a joint work is created. A work is considered
    joint if it meets these conditions:

    • both or all the authors intend that their contributions be
      merged into a single work;
    • this intention exists at the time of creation of the work.

    No written contract is necessary to create a joint work. Each author
    owns an undivided portion of the entire work. While each joint
    author may exploit the work without other joint authors’
    permission, any profits must be shared with the other joint authors.
    No single author can grant exclusive rights without consent of the
    other authors.

    For example, if Gertrude writes lyrics and Harry writes the music to
    a popular song, both of them own copyright in the lyrics and music.
    Harry can give permission for someone to reprint the lyrics even
    though Gertrude wrote them. Gertrude can give permission for a
    filmmaker to use only the song’s melody as soundtrack music
    even though Harry wrote the music.

    It is likely, that in the absence of a contract to the contrary,
    performers will own copyright to sound recordings jointly with
    record companies.

    Ownership of Copyright in Sound Recordings

    US copyright law requires that, in order to be eligible for
    protection, a creative work be fixed in a tangible medium.
    Therefore, a performer cannot have a copyright in his performance.
    However, if the performer records the performance he may have
    copyright in the sound recording.

    The creativity in the process of creating a sound recording involves
    not only the performance of the singer but also the input of the
    instrumentalists, musical director and engineers. Because so many
    people collaborate in the creation of a sound recording, the issue
    of ownership is difficult to resolve. This issue is mostly resolved
    by contracts. It is important for performers of music to remember
    that they are likely to have a copyright in the sound recording,
    unless they sign those rights away.

    Copyright in sound recordings was introduced in 1972. Copyright law
    is a federal law. It was enacted by the Congress of the United
    States and is applicable uniformly through out the United States.
    However, the state of New York protects rights in sound recordings
    created before 1972. This protection will continue to exist until

    Beneficial Ownership

    An author who has assigned his/her copyright in return for a
    continuing royalty interest is a “beneficial” owner of
    the copyright. As long as he/she has a continuing financial interest
    in the copyright, a beneficial owner is entitled to sue for
    infringement. A beneficial owner has only two rights in the work
    — the right to receive royalty payments and the right to sue.

    For example, Alice, a songwriter, assigns her copyright in
    her composition to Bob, a music publisher in exchange for
    royalty payments. Despite this assignment, Alice can sue anyone who
    uses her composition without Bob’s authorization and
    obtain royalties.

    Copyright Formalities

    Copyright protection is automatic upon fixation of a work. This
    means that as soon as you write your song on paper or record your
    tune on a CD, the work is protected by copyright without any further
    formalities. But, the copyright formalities of registration and notice
    confer important advantages. Therefore, it is very important that
    you are familiar with copyright formalities.


    Registration can be made at any time during the copyright term by
    depositing one or two copies of the work, an application and fees
    with the copyright office. More information about registration is
    available at the copyright office website at

    Registration confers valuable benefits on the copyright owner,

    • A copyright owner cannot sue for infringement unless he has
      registered his work.
    • If a work is registered within 5 years of its publication, the
      certificate of registration is considered proof of ownership of
    • If a work is registered within 3 months of its publication,
      remedies for infringement available to the owner increase a
      great deal.
    • Registration allows the public to identify the copyright owner.
      This allows people interested in using the work to approach the
      owner and obtain a license.


    A copyright notice consists of the symbol ©, the name of the
    copyright owner and the year of first publication. For sound
    recordings instead of the symbol © the symbol ℗ is used.
    Notice has to be placed on a conspicuous place of the copy of the

    Use of notice ceased to be mandatory as of March 1, 1989. Before
    this date, if a work was published without proper notice, and the
    mistake was not corrected within 5 years of publication, the
    copyright on the work would be lost.

    Although not mandatory, a copyright notice is still very useful in
    letting people know about the copyright status of a work and the
    identity of the owner. This allows a person interested in using the
    work to contact the owner.

    Copyright Duration

    Copyright in a work does not last forever. A limited duration
    ensures that others can use the work in creating new works. For
    example, a limitation on duration allows an interested person to
    republish old songs that have practically disappeared because the
    song’s publisher will not publish it or its author is unknown.
    The Constitution mandates a limitation on duration of copyright to
    ensure progress and public good.

    Although copyright law has always recognized the principle of
    limited duration, the law governing duration has undergone drastic
    change over a period of time. Present copyright law created a new
    duration for works created after January 1, 1978. However, works
    created earlier are governed by different rules. The following table
    gives a breakdown of copyright durations for works created at
    different points in time.

    Date of Copyright When Renewal Due Duration of Copyright
    Pre-1923 N/A Copyright has expired
    1923-1963 During the 28th year of copyright, otherwise copyright has
    95 years from the date of copyright, if renewed in the 28th
    1964-1977 Renewal during the 28th year of copyright optional; if no
    renewal filed, automatic renewal
    95 years from the date of copyright
    Created before 1978 but not registered or published N/A Author’s life + 70 years or December 31, 2002 whichever
    is longer
    Anonymous, pseudonymous, and corporate-owned works created
    after 1977 or created but not published or registered before
    N/A 95 years from publication or 120 years from creation,
    whichever is sooner
    1978 onward N/A Author’s life + 70 years

    The Public Domain

    The public domain is the realm of information and culture where
    intellectual property protection does not apply. When copyrights and
    patents expire, innovations and creative works enter the public
    domain. Some works such as facts and government documents are not
    eligible for copyright and automatically enter the public domain.
    Anything in the public domain may be used by anyone without
    permission and without the payment of a license fee. The public
    domain is a treasure trove of information, resources, and
    inspiration that artists and creators constantly use to make new

    Rights of Musicians

    The “bundle of rights” which constitute copyright as far
    as musicians are concerned are:

    Only the copyright owner may exercise these rights or authorize
    others to do so. The rights mentioned above can be separated. The
    rights of musicians can vary depending on whether they are composers
    or performers. A composer is a person who creates the music —
    i.e. the melody, rhythm and lyrics. A performer is one who performs
    music. As explained in the ownership section, the performer’s
    copyright exists in the sound recording. We will mention differences
    between rights of composers and performers wherever relevant.

    The Reproduction Right

    The reproduction right gives the copyright owner the exclusive right
    to make copies of his work. For example, if you own a copyright in a
    sound recording, you have the exclusive right to make copies of the
    sound recording through CDs, cassette tapes or by any other means.

    For composers of music, the reproduction right is limited by the
    right of others to make a sound recording once a composer has
    recorded and distributed copies of his composition. We will talk
    more about this limitation under the mechanical license section.

    For performers who own a copyright in the sound recording, the
    reproduction right gives the exclusive right to prevent duplication
    of the sound recording. However, the copyright owner cannot prevent
    an imitation. The owner of the copyright cannot prevent somebody
    from gathering their own artists, equipment and engineers and
    recording the same song to sound exactly like the earlier recording.
    This might be the reason many record contracts have provisions
    requiring performers to agree to work for that label exclusively for
    a specified number of years.

    The Adaptation Right

    The adaptation right gives the copyright owner the exclusive right
    to create derivative works. A derivative work or an adaptation is a
    new work based on an existing work. For example, if someone uses
    melodies from one composition in another composition, the adaptation
    right is implicated. The person using the piece from the existing
    composition needs permission from the original composer.


    Music sampling is an example of a derivative use of older works.
    However, sampling is a controversial practice. Many samplers may
    argue that they do not need licenses to sample especially when they
    are sampling a very small portion of a recording and the original
    music cannot be recognized in the sampled work.

    The few courts that have dealt with the issue have treated sampling
    of musical compositions different from sampling of sound recordings.
    While sampling very small portions of a composition has been held to
    be permissible, sampling of even small portions of sound recordings
    has not. However, the law in this area is far from settled. Samplers
    unable to obtain license are faced with three options: do not
    sample, assert fair use or claim that the use is de minimis
    use i.e. that the use is so small that it is permissible under the
    law. The test for de minimis use is whether the audience
    can identify the original work in the sampled work.

    The Distribution Right

    Only the copyright owner or a person authorized by him has a right
    to distribute copies of the work. For example, only the owner of the
    copyright in a sound recording can sell or authorize others to sell
    CDs containing the sound recording.

    The Public Performance Right

    The copyright owner has the exclusive right to perform or authorize
    the public performance of his work. A performance is public when it
    is made in front of a large or undefined number of people or is
    broadcast to members of the public. For example, when a singer sings
    a song in a concert hall, a TV station broadcasts a song, there is a
    public performance. Private performances, i.e. performances in front
    of family and friends, do not need consent from copyright owners.

    The public performance rights of composers and owners of copyright
    in sound recordings vary a great deal. Composers have to be
    compensated whenever their composition is publicly performed whether
    through radio or TV or in a concert hall. The right encompasses what
    has come to be known as synchronization rights. A synchronization
    right is the right to authorize use of music as a background or as
    part of a movie or a television show.

    In contrast, copyright owners of sound recordings have no general
    public performance right. This means that when an over-the-air radio
    station plays a record, the composer is entitled to compensation but
    the owner of copyright in the sound recording is not. In 1995,
    Congress passed the Digital Performance Right in Sound Recordings
    Act. This law grants to owners of copyright in sound recordings a
    public performance right in digital transmissions of their music.
    This right is subject to a number of limitations which we will talk
    about in the limitations section.

    Administration of the
    Public Performance Right

    Administration of the performance right varies between composers and
    owners of copyright in sound recordings. While composers administer
    this right through voluntary organizations, owners of copyright in
    sound recordings administer the right under a compulsory license
    scheme provided by the law. We will discuss the administration of
    the right for composers in this section. We will discuss
    administration of the right for owners of copyright in sound
    recordings under the limitations section.

    Although the law gives exclusive performance rights to composers, it
    is almost impossible for individual composers to enforce this right.
    How is a composer to know when and where his works are being
    performed? Therefore, performance rights are enforced by
    “performance rights societies” formed by authors and

    The performance right is administered by three organizations —
    the American Society of Composers, Authors and Publishers (ASCAP),
    Broadcast Music, Inc. (BMI) and SESAC (formerly known as the Society
    of European Stage Authors and Composers). These organizations are
    also known as the performance rights organizations (PROs). They
    license compositions for public performance on behalf of composers
    who are members of these organizations and distribute royalties
    collected to the composers.

    These PROs charge a single blanket license for unlimited access to
    their entire repertories of musical works for a contractual period.
    The license is charged as a percentage of the music user’s
    revenue. The percentage is negotiated based on use and the
    importance of the music in the user’s operation. Generally
    wealthier users such as the major television networks are charged
    more than small users.

    The PROs also offer a per-program license fee for users who require
    minimal access to their repertories. For example all talk and all
    news radio stations are offered per program licenses. The revenue
    generated from the licenses is distributed to members based on the
    number of times their compositions were used and the prominence
    given by users to their compositions. More information about
    ASCAP, BMI and SESAC is available on their websites at, and

    Rights Against Bootlegging

    Unauthorized audio and video recording of live musical performances
    is referred to as “bootlegging.” This right is not part
    of the “bundle of rights” provided by copyright law
    because performers do not have a copyright in their performances.
    However, bootlegging is a civil offence. The law prohibits
    unauthorized recording of performances, distribution of copies of
    unauthorized recordings and transmissions of unauthorized

    A copyright is not an absolute right. The law places limitations on
    copyrights in the interest of creativity and free flow of
    information. Some limitations on exclusive rights are common to all
    works, while others are specific to musical works and sound
    recordings. Limitations on copyright in musical compositions and
    sound recordings can be placed under three broad categories:
    exemptions from exclusive rights, compulsory licenses and fair use. Before talking about the limitations on
    copyrights in musical works and sound recordings, we should mention
    one limitation applicable to all kinds of works.

    The First Sale Doctrine

    This doctrine embodies a limitation on the distribution right. Under
    this doctrine, a person who purchases a copy of a copyrighted work
    can sell, lend or lease that copy without the permission of the
    copyright owner. This provision does not apply to the rental or
    leasing of sound recordings. However, sound recordings can be rented
    or leased for non-profit purposes by a non-profit library or
    educational institution. This provision responds to concerns that
    the first sale doctrine would enable people to rent a record and
    copy it on to a blank tape thereby displacing record sales.


    An exemption to an exclusive right means that the user does not need
    permission from the copyright owner to use the work. Exemptions to
    copyrights in music and sound recordings apply to the public
    performance right. Certain performances like those that happen in
    the course of teaching in a classroom, instructional and religious
    broadcasts, and non-profit performances are exempted from the scope
    of the performance right.

    The law also permits restaurants, offices, malls and other
    establishments to play music in the background without the
    permission of the copyright owner. In order to qualify for this
    exemption establishments have to meet three conditions:

    • They have to come within specified square footage.
    • They should not use more than six speakers or four monitors to
      enhance the transmission.
    • The performance should originate from an FCC licensed radio
      station or television station.

    Compulsory Licenses

    Normally, to use a copyrighted work, the user has to seek permission
    of the copyright owner. In many instances such permission is given
    in exchange for a license fee paid to the owner. However, in some
    situations the law permits the user to use the work without the
    owner’s permission provided the user pays a statutory fee or a
    “compulsory license” to the copyright owner. Composers
    and performers are affected by different types of compulsory

    The Mechanical

    The mechanical license affects composers’ exclusive right to
    reproduce and distribute their musical works. Once a composer has
    recorded and distributed his composition in America, the law permits
    others to make and distribute a recording of the same composition,
    subject to payment of prescribed fees to the copyright owner. In
    order to receive the benefit of the license the person making the
    recording has to serve a notice of intention on the copyright owner
    within 30 days of making the recording and before distributing it.
    If the owner’s name and address cannot be found in copyright
    office records, the notice can be filed in the copyright office. A
    copyright owner is entitled only to royalties collected after the
    copyright owner is identified in the copyright office records. This
    is another good reason to register your copyrights.

    The mechanical license was introduced in 1909 because Congress
    feared that record companies could monopolize songs. It applies only
    to non-dramatic musical works. Thus it excludes the score of an
    opera or a musical ballet.

    It is important to remember that a person who wants to record a
    musical composition cannot simply copy an earlier recording. That
    would violate the rights of the owner of copyright in the sound
    recordings. Also, he cannot “change the basic melody or the
    fundamental character of the song”.

    Royalty rates for the license can be negotiated between the
    copyright owner and the record company. If the parties fail to come
    to an agreement, the rates will be determined by the Copyright
    Royalty Board. In practice, resort to arbitration proceedings is

    In 1995, an amendment to the law called the Digital Performance
    Right in Sound Recordings Act clarified that the mechanical license
    also extended to digital deliveries of sound recordings.

    Many composers license their mechanical rights through an
    organization called the Harry Fox Agency. As a condition for
    granting membership to composers or music publishers, the Harry Fox
    Agency requires that the musician have at least one song
    commercially released through another party during the preceding 12

    The Broadcast

    Non commercial or public broadcasting entities can transmit
    copyrighted musical works if they negotiate a license agreement with
    the copyright owners. If they fail to reach such agreement, the law
    provides that the license will be set by the Copyright Royalty

    The Compulsory License
    for Digital Performance

    Performers are affected by compulsory licenses governing the use of
    sound recording. Sound recordings do not have general performance
    rights. So when an over-the-air radio station plays a song,
    performers cannot expect any compensation much less prevent the
    station from playing it.

    In 1995, the Digital Performance Right in Sound Recordings Act
    (DPRSRA) introduced a performance right for sound recordings
    transmitted digitally. The concern behind this legislation was that
    digital technologies would enable consumers to substitute digital
    subscriptions for record purchases and this would deplete the stream
    of revenue for copyright owners of sound recordings. Purchase of
    records would further go down because of increased home taping.

    The DPRSRA creates three classes of users. The first class of users,
    mainly terrestrial broadcasters of free radio and television
    programming, are completely exempt from the right. The second class,
    consisting of non-interactive subscription services such as XM and
    Sirius radio and Internet radio are subjected to a compulsory
    license. The third class, consisting of interactive services such as
    limited downloads, does not get the benefit of the license. They
    have to negotiate directly with the copyright owners.

    The compulsory license discriminates between non-interactive
    subscriptions services established before July 31, 1998 and those
    established later. It requires all services to satisfy the following
    conditions to qualify for the license:

    • Services will not play more than two consecutive selections from
      single album in a 3 hour period.
    • Services will not give advance notice to consumers about
      selection that will be played.

    New services have to meet following additional conditions:

    • Avoid giving advance notice of names of featured artists.
    • Limitations on retransmitting archived programs.
    • Do not abet consumer copying.
    • Take reasonable steps to assure that technological protection
      measures will function.

    of the Compulsory License for Digital Performance

    SoundExchange is the designated entity that collects royalties on
    behalf of labels and artists when their music is transmitted
    digitally i.e through digital cable and satellite television,
    digital radio such as satellite radio and Internet radio. Royalty is
    collected on a per performance basis and is distributed evenly
    between the artist and the label.

    The royalty rate can be determined either by negotiations between
    the parties or by a rate setting proceeding before a statutory body
    called the Copyright Royalty Board. The Copyright Royalty Board
    periodically convenes to determine royalty rates.

    Fair Use

    Fair use is another limitation on your rights in your music. But it
    is not as well defined as the limitations and exemptions discussed
    in earlier sections. Its purpose is to ensure that a copyright
    owner’s exclusive bundle of rights will not hinder the very
    creativity that the law was designed to foster. The doctrine
    recognizes that new works draw inspiration from older works and that
    productive use of older works promotes the progress of science, the
    arts, and literature. Fair use permits use of copyrighted material
    without permission where use is in the public interest. The law
    specifically mentions criticism, comment, news reporting, teaching,
    scholarship and research as exemplary fair uses, but there is no
    clear-cut-rule. Fair use is determined on a case-by-case basis. An
    activity may qualify in one instance as fair use, while it would be
    an infringing activity in another context.

    The law sets out four factors to be used in determining whether a
    particular use is fair.

    First Factor — The Purpose
    and Character of Use

    Under this factor, non-profit or educational uses and uses that
    transform the underlying material are more likely to be considered
    fair. Transformative uses might be considered fair even if they are

    A good example of a transformative use is parody. A parody uses the
    original work in order to make fun of it. From court cases decided
    to date, several elements emerge. For a parody to be considered fair

    • It must comment on the original.
    • It should use only as much of the original material as is needed
      and not so much that the consumer will be confused or the
      commercial value of the original will be diluted.
    • It should not seek to replace the original in the market place.

    In Campbell v. Acuff Rose Music, the owners of the
    copyright in Roy Orbison’s song, “Oh, Pretty
    Woman”, sued the rap group 2 Live Crew, claiming that the
    group’s parody song infringed their copyright by using the
    first line of the lyrics and the song’s opening bass riff. The
    Supreme Court found that because 2 Live Crew’s song added
    significant amounts of new material and criticized the underlying
    work, the use was transformative and qualified for fair use. The
    court reached this conclusion even though 2 Live Crew’s use
    was for commercial purposes.

    Second Factor — Nature of the
    Copyrighted Work

    Generally, creative works are given greater protection than factual
    works. For example, a song would receive more protection than
    software code. Also, if a work is unpublished, the author’s
    right of first publication is recognized. Yet a work’s
    unpublished nature does not necessarily preclude finding of fair

    Third Factor — Amount and
    Substantiality Used

    Under this factor, a court would examine what portion of the work
    was used and the significance of the used portion.

    Fourth Factor — Effect
    on the Market for the Copyrighted Work

    Adverse effect of the use or potential adverse effect tends to go
    against a finding of fair use.

    Your copyright is “infringed” when some one uses your
    music without your permission and the use is not a fair use, does
    not come within the scope of another exemption or a compulsory
    license. The law allows you to recover an amount equal to the sales
    you lost on account of infringement. If you are not able to
    calculate lost sales, you might be able to elect to take an amount
    fixed by the law. However, to be able to do this, you must register
    your work within 3 months of publication. In addition, you might
    also be entitled to a court order prohibiting the infringer from
    using your work.

    Copyright in the Era of Digital Technology

    Digital technology has brought about tremendous changes in the way
    music is distributed and enjoyed. It has made possible methods of
    distribution such as peer-to-peer (P2P) file sharing, online music
    sales, podcasting and webcasting. Musicians no longer have to rely
    solely on physical record sales or radio stations to have their
    music heard by the public. Musicians who cannot or do not want to
    sign a contract with a record label can record their own music and
    reach their audience through the Internet. These changes have led to
    new business models and created exciting new possibilities both for
    musicians and their audience.

    At the same time, major copyright owners, like the major record
    labels are becoming increasingly nervous about how digital
    technologies limit their control over the music production and
    distribution process. They fear that digital technology will
    increase home taping, spawn illegal file sharing networks, reduce
    sales of CDs, and free artists to produce and distribute their music
    themselves. These fears have led them to sue file sharing networks, support
    legislation like the DMCA which is designed to
    lock digital content, and seek to reduce consumer rights. Although a
    law called the Audio Home Recording Act was
    passed in 1992 to protect consumer home recording rights, record
    labels are demanding further changes
    to the law
    that would render AHRA’s protections of little
    significance to consumers.

    Lawsuits Against File Sharing Networks

    Peer-to-peer file sharing networks like Napster and Grokster became
    tremendously popular and were widely used to share music. While
    record companies and some artists saw these networks as tools for
    copyright infringement, others used them to sell their songs. These
    networks worked by allowing individuals who downloaded peer-to-peer
    software to connect their computers directly to others who had done
    the same. As a result, these individuals could share none, some or
    all of the files on each others’ computer hard drives. The
    technology used by the two networks — Napster and Grokster was
    slightly different. Napster maintained servers containing an index
    of music files available on the system. Grokster maintained no such
    centralized index.

    The major record labels filed separate lawsuits against Napster and
    Grokster accusing these networks of allowing their consumers to
    illegally share copyrighted music. Both lawsuits tested the
    well-established principle of copyright law that an equipment
    manufacturer is not liable for copyright infringements of its
    consumers if the technology it provides is “merely capable of
    substantial non-infringing uses”. The Supreme Court enunciated
    this principle in its landmark fair use decision, in Sony Corp.
    of America v. Universal City Studios
    . In that case the court
    held that using a VCR to record television programs to watch them
    later was fair use.

    Yet in both the Napster and Grokster cases, courts held the
    equipment manufacturers, i.e. the suppliers of the software liable
    for their customer’s infringements. In the Napster case, the
    court said that Napster had actual knowledge of infringement and had
    a duty to police its servers. In the Grokster case, the court found
    that Grokster had taken “active steps to encourage
    infringement”. The court saw Grokster’s advertisements
    targeted at former Napster users, newsletters discussing uses of the
    Grokster software, and Grokster’s response to customer queries
    about how to use the software as evidence of these “active
    steps to encourage infringement”.

    In both cases, the courts side stepped the issue of the technology
    being capable of substantial non-infringing uses. As a result of
    these decisions, both the Napster and Grokster services went out of
    business. However, even in the wake of these decisions, other P2P
    services continue to flourish.

    AHRA: The Audio Home Recording Act

    The Audio Home Recording Act (AHRA) was enacted in 1992. Although
    the legislation was a response to fears of record labels that
    digital technology would make near perfect copying possible, it was
    beneficial to consumers because it affirmed the consumers right to
    make a recording of music for personal use.

    The AHRA requires digital audio recording devices, such as the XM
    inno, made or imported into the US to be designed to prevent serial
    copying. Manufacturers and importers of digital audio recording
    devices and media such as blank CDs are required to pay royalties to
    a fund. Fees collected in the fund will be distributed among record
    companies, performers and owners of copyright in the music.
    Royalties are based on a percentage of the transfer price of the
    device. Copyright owners are required to appoint agents to collect
    royalties and distribute them among their members. In exchange for
    these payments, the Act exempts consumers and device manufacturers
    from copyright infringement liability.

    The AHRA might not cover all kinds of home recordings of music. The
    Act seems to target only those recording devices whose primary
    purpose is to record music. Thus copying from computers is outside
    the ambit of the Act.

    The Digital Millennium Copyright Act

    The Digital Millennium Copyright Act (DMCA) seeks to prevent copying
    by 1) prohibiting individuals from breaking digital locks used to
    protect copyrighted works; and 2) prohibiting anybody from
    manufacturing or selling any device or service that would permit the
    breaking of digital locks. These sections of the DMCA are called the
    “anti-circumvention” provisions. It also contains
    provisions that exempt Internet Service Providers (ISPs) from being
    held liable for their customers’ infringement if they satisfy
    certain conditions.

    The Anti-circumvention

    These provisions prohibit circumvention of technological protection
    measures (TPM’s) such as encryption technology used by
    copyright owners to control access to their digital works. Only
    devices authorized to read these TPMs will be able to access the
    content. For example, I will not be able to play a DVD designed to
    work on a Windows platform on a Linux platform. Although the law
    allows circumvention of TPMs that prevent copying of digital works,
    it prohibits trafficking in technology that can circumvent any TPMs
    whether employed to control access or to prevent copying.

    The anti-circumvention provisions make no distinction based on
    whether the use is lawful or not. Therefore, one cannot break a TPM
    for fair use or to access a work in the public domain. The DMCA
    contains very narrow exceptions to its anti-circumvention
    provisions. These include exemptions for law enforcement, browsing
    by libraries, archives and schools to make purchasing decisions, and
    reverse engineering for achieving interoperability.

    The ISP Liability

    The DMCA eliminates ISP liability for infringement by customers if
    the ISP removes the allegedly infringing material. The ISP must
    provide the copyright owner with contact information of the alleged
    infringers. The Act sets forth a relatively simple way for copyright
    owners to notify the ISP that it is hosting a site containing
    infringing content. The ISP has five days to remove the infringed
    material and may replace it if the accused infringer claims it does
    not infringe and provides its address and other information, so the
    accuser can deal directly with the accused.

    Proposed Legislative Changes

    Major record labels are urging Congress to pass legislation that
    would protect their interests over artists interests and limit the
    way consumers enjoy your music. Often, these attempts come in the
    form of provisions inserted into bills that are otherwise beneficial
    to the music industry and seek to reform various practices in the
    music industry. Two such bills are the Section 115 Reform Act or the
    SIRA and the Perform Act.

    SIRA was introduced in the September 2006. While most of
    SIRA’s provisions were aimed at improving the process by which
    online music providers obtain mechanical licenses, it also contained
    provisions that were bad for consumers and small artists. The bill,
    if enacted, would have:

    • prevented consumers from recording music transmitted digitally;
    • increased royalties for many Internet radio services;
    • allowed record companies to divert publishing royalties from the
      musicians to the record companies in order to repay the

    SIRA did not pass into law in the last Congress. But a similar bill
    is likely to be introduced in future.

    The Perform Act was introduced in the Senate in January 2007. The
    purpose of the bill is to eliminate discrimination between existing
    subscription and satellite radio services and new services in
    setting rates for the digital performance license. But the bill also
    contains provisions that would prevent consumers from enjoying music
    the way they want to. For example, provisions in the bill would only
    allow consumers to record music from digital radio broadcasts in the
    sequence in which the program was transmitted. They could not record
    digital transmissions based on the artist, or album or sound
    recording. They could not burn the recording to a CD or other
    portable device. They could not change the sequence of the

    The one positive attempt at change in this environment is to require
    over- the-air broadcasters to pay performance royalties. As we
    discussed in the sections above, free over-the-air broadcaster are
    exempted from paying royalties to performers while satellite radio
    services and Internet radio services have to pay such a royalty.
    Although many believe that this disparity should be eliminated and
    over-the-air broadcasters should be required to pay such a royalty,
    there is considerable opposition from the broadcasters. No concrete
    legislative proposal has emerged to solve this issue.


    We hope this tutorial helped you gain a better understanding of
    copyright law. While it is important to understand the law, it is
    also important to understand how, as a matter of policy, copyright
    law affects you.

    Copyright law gives you valuable rights. It creates a legal
    framework which ensures that you get compensated when your music is
    used. And you should do everything in your power to secure and
    safeguard these rights. However, we believe that the current
    copyright regime has lost sight of the balance between the rights of
    the musicians and the rights of the public. Copyright law has been
    and continues to be amended to accommodate the interest of large
    corporate copyright owners like the major record labels. These
    developments are not good for the public and neither are they good
    for all but perhaps the wealthiest musicians.

    Technological Locks Give Copyright Owners Greater Rights
    Than Copyright Law Permits and Anger and Frustrate Music

    Technological locks assume that all consumers are pirates and will
    steal music if they could. As a result they create restrictions on
    access greater than what copyright law permits. For example some CDs
    can only be played on CD players and not on computers. Copyright law
    does not tell audiences how many times they can listen to a song.
    But technological locks make this restriction possible. To the
    extent that artists often need to study certain works over and over
    again, excerpt, modify and transform pieces of work, and play them
    on different devices, technological locks make this not only harder,
    but also in some cases illegal.

    In addition, as the Sony BMG CD copy protection scandal illustrates,
    technological locks can actually harm consumers. Sony BMG included
    copy protection technology on several albums sold on CDs. The
    software used in this technology interfered with the normal working
    of certain computers and allowed viruses to break in. Sony had to
    eventually recall its CDs.

    Peer To Peer Technology is Not Evil

    It is true that the Napster and Grokster networks were used to share
    music and often the artists and the record labels were not
    compensated. But it is also true that some copyright holders use P2P
    networks to sell their works. Peer-to-peer technologies might enable
    smaller users to reach their audiences in ways they could not
    otherwise reach them. They do not have to overcome hurdles created
    by gatekeepers such as record labels or major broadcasters. Besides,
    studies suggest that P2P users actually buy more music than the
    average consumer. For many of these users, P2P allows them to decide
    what music they want to buy. So, destroying the technology is not
    the answer to problems faced by copyright owners. A more sensible
    approach would be to work to find a way to compensate artists rather
    than to destroy the technology.

    Digital Delivery and Transmission of Music Gives All

    Musicians a Greater Audience

    Digital technology enables musicians whose music is not considered
    “main stream”, or those who do not want to sign on to
    major record labels to sell their music online . Internet radio,
    unlike traditional mass radio stations, is known to transmit all
    kinds of music. But current laws and practices discriminate between
    digital music and analog music. Digital deliveries and transmissions
    are charged higher royalty rates. Bills like the SIRA and Perform
    Act would require technological protection measures to limit what
    consumers can do with music transmitted digitally. Services that do
    not want to install these measures will have to pay very high
    royalties for the music they transmit or may be completely denied
    permission to transmit. This only makes these services expensive and
    unpopular. Charging more for digital music cannot be good for
    artists because this is the medium that gives you maximum exposure.