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Stilgar writes "BY KURT HANSON | RAIN

Given the ruinous rates and terms laid down by the Copyright Royalty Board, many RAIN readers have been asking, what are the options available to webcasters? They include negotiating, appealing to the courts, asking for legislative relief, and, perhaps in combination with some or all of those efforts, asking for help from listeners.

But before that process begins, I think it might be useful to take a few steps backward and look at how we arrived at this potentially fatal situation.

The purpose of copyright law Stanford Law professor and copyright expert Lawrence Lessig writes, "Copyright has never accorded the copyright owner complete control over all possible uses of his work. Its purpose instead is to secure a limited monopoly over certain ways in which creative work is exploited, so as to give the authors (i.e., composers and performers) an incentive to create, and thus, in turn, to 'promote the Progress of Science'."

In fact, it's beyond argument today that the U.S. copyright laws recognize no absolute right in authors to prevent others from copying or exploiting their work. Rather, copyright laws grant authors limited rights in their works solely to an extent that Congress believes that creation and dissemination of their works are encouraged. In the long term, authors' intents and interests have always been secondary to that of the public.

Copyright law and music Congress' intent to encourage the creation and dissemination of musical works is based on those principles. Congress has wanted to insure that composers have an incentive to keep composing and performers have an incentive to keep performing, but also that third parties (i.e., those individuals and companies that disseminate those works to the public in new forms (e.g., Pandora)) would have an incentive to keep innovating -- in each case, remember, primarily not for those individuals' own good, but rather for the good of the public.

So, to that end, Congress over the past decades has seen fit to grant composers and performers a certain limited number of monopoly rights. Not unlimited rights, mind you, but enough to motivate them to keep composing and performing.

For example, in the case of composers, one of the monopolies that Congress granted them was a monopoly for a certain period of time to decide who could record their compositions -- specifically, they may determine the first person who may record it. However, Congress did not grant composers any additional monopoly rights in this regard thereafter; once that first performer has recorded it, any other performers are also free to record the song. The composer may get some cash compensation for it (e.g., if it's recorded on a CD or published as sheet music) and may benefit from the promotional value of the performances of it (e.g., more sheet music will be sold), but they were absolutely not granted unlimited control of their output.

Of course, Congress could have granted composers additional monopoly rights regarding who could perform their songs. But they didn't. Congress felt that the bundle of various monopoly rights they did give should be enough to motivate composers to keep composing.

Copyright law and sound recordings Now let's look at sound recordings. (We've covered this several times before in RAIN, but I'll clarify here parenthetically: When Rod Stewart records Cole Porter's "Night and Day," there are two different creative works involved -- the song (lyrics and notes) and the performance of it (as captured on that recording). We're now talking about the latter -- the sound recording.)

In the early days of cylinders and 78 RPM discs and so forth, state copyright laws granted owners of the master recordings various rights to manufacture and sell them, but it was an open question as to whether radio stations had the right to play those recordings.

In fact (as I was reminded recently in the excellent book "Something in the Air" by the Washington Post's Marc Fisher), top crooners of the era like Bing Crosby (pictured) and Paul Whiteman stamped "Not Licensed for Radio Airplay" on their records and hired lawyers to try to sue the radio stations that played them.

However, a federal court ruled in 1940 that once a record was sold, the buyer had the right to use it in any manner he liked, including broadcasting it on the radio. In other words, the court determined that there were no copyright laws in effect that had granted that particular monopoly right (the right to control who plays it on the radio, sometimes called a "public performance" monopoly right) to the performer. Recording artists had been granted several rights by Congress, the court concluded, but not that one. Thereafter, radio stations knew they were free to play the records they wanted to play.

And the relationship between recording artists and radio stations turned out to be a virtuous one! When radio stations played a Bing Crosby record, its sales didn't go down (as he was apparently afraid they might), they soared!

A healthy economy developed in which record companies and recording artists encouraged radio stations to play their records, knowing they'd mutually benefit. (In fact, record companies eventually went on to hire huge promotional staffs and establish huge budgets for things like trade publication ads and independent promotion companies to encourage more radio stations to play more of their recordings more and more often.)

Had Congress believed that record companies and performers were at risk of not being motivated enough to make enough recordings to serve the interests of the public, Congress could have granted additional monopoly rights (i.e., a "public performance" monopoly right for those sound recordings). But Congress in its wisdom realized that the performers were already adequately motivated to serve the public interest, and thus did not those grant additional rights.

In fact, it wasn't until 1972 that Congress, for the first time, offered any kind of federal copyright protection for sound recordings at all. (Prior to that, as noted above, the right to sell reproductions were covered by a patchwork of state copyright laws.)

Four years later, the Copyright Law of 1976 (also here) established that there was a monopoly right to "public performance" for certain types of copyrighted material, but not for sound recordings. Why not? Not to keep hammering this home, but it was because Congress apparently believed that record companies and recording artists were already sufficiently motivated to keep creating enough sound recordings to satisfy the public good.

(Note: Somewhere in this section of this article, I've jumped from talking about the copyright owner of a performance being the performer to being the record label, since record labels deals with performers generally establish the label as the copyright owner.)"


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