Mann, These Compulsory Licenses Are Hard

Untethered downloads.  Tethered downloads.  Non-interactive streams.  On-demand streams. Public performance rights.  Reproduction and distribution rights.  The former 4 implicate the latter 2 in varying degrees, making licensing music services that provide one or more of the former 4 problematic.  Some of these rights one can obtain via a compulsory license.  Some cannot.  Even in situations where a compulsory license is available, the requirements to obtain such license may be anachronistic to the current digital business model.  It is within this confusing world that one may view Amiee Mann’s recent lawsuit against MediaNet.

According to Mann’s Complaint, which is copied below, “Section 106 of the Copyright Act provides the owner of a copyrighted musical work with the exclusive rights to reproduce and distribute and to authorize the reproduction and distribution of the music work in “phonorecords”. 17 U.S.C. §§ 106(1), 106(3). These rights are commonly referred to 8 together as “mechanical” rights, a term dating back to the period when music recordings were “mechanically” (rather than digitally) reproduced.”

Under Section 115 of the Copyright Act, once the copyright owner distributes a musical composition, a statutory license is available to others to reproduce and distribute the work to the public, provided they comply with certain provisions of Section 115 requiring notice of use and accounting and payment of royalties to the copyright owner. When Congress introduced the right of public performance by digital audio transmission for sound recordings under the Digital Performance in Sound Recording Act of 1995, Section 115 was amended to include a definition of “digital phonorecord delivery” (“DPD”) as “each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein.” 17 U.S.C. § 115(d).  Therefore, the reproduction and distribution of musical works in the form of DPDs is subject to compulsory licensing and payment of royalties under Section 115.

The notice requirements under Sec. 115 aren’t necessarily arduous, but there are exacting.  Under 37 CFR § 201.18(a)(1) A “Notice of Intention” is a “Notice identified in section 115(b) of title 17 of the United States Code, and required by that section to be served on a copyright owner or, in certain cases, to be filed in the Copyright Office, before or within thirty days after making, and before distributing any phonorecords of the work, in order to obtain a compulsory license to make and distribute phonorecords of nondramatic musical works.”

Under the “Content” provisions of Sec. 115, a service like MusicNet must provide the following:

(1) A Notice of Intention shall be clearly and prominently designated, at the head of the notice, as a “Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords,” and shall include a clear statement of the following information:

(i) The full legal name of the person or entity intending to obtain the compulsory license, together with all fictitious or assumed names used by such person or entity for the purpose of conducting the business of making and distributing phonorecords;

(ii) The telephone number, the full address, including a specific number and street name or rural route of the place of business, and an e-mail address, if available, of the person or entity intending to obtain the compulsory license, and if a business organization intends to obtain the compulsory license, the name and title of the chief executive officer, managing partner, sole proprietor or other person similarly responsible for the management of such entity. A post office box or similar designation will not be sufficient for this purpose except where it is the only address that can be used in that geographic location.

(iii) The information specified in paragraphs (d)(1)(i) and (ii) of this section for the primary entity expected to be engaged in the business of making and distributing phonorecords under the license or of authorizing such making and distribution (for example: a record company or digital music service), if an entity intending to obtain the compulsory license is a holding company, trust or other entity that is not expected to be actively engaged in the business of making and distributing phonorecords under the license or of authorizing such making and distribution;

(iv) The fiscal year of the person or entity intending to obtain the compulsory license. If that fiscal year is a calendar year, the Notice shall state that this is the case;

(v) For each nondramatic musical work embodied or intended to be embodied in phonorecords made under the compulsory license:

(A) The title of the nondramatic musical work;

(B) The name of the author or authors, if known;

(C) A copyright owner of the work, if known;

(D) The types of all phonorecord configurations already made (if any) and expected to be made under the compulsory license (for example: single disk, long-playing disk, cassette, cartridge, reel-to-reel, a digital phonorecord delivery, or a combination of them);

(E) The expected date of initial distribution of phonorecords already made (if any) or expected to be made under the compulsory license;

(F) The name of the principal recording artist or group actually engaged or expected to be engaged in rendering the performances fixed on phonorecords already made (if any) or expected to be made under the compulsory license;

(G) The catalog number or numbers, and label name or names, used or expected to be used on phonorecords already made (if any) or expected to be made under the compulsory license; and

(H) In the case of phonorecords already made (if any) under the compulsory license, the date or dates of such manufacture.

Given the poor state of metadata surrounding the ownership of musical works, it would be nearly impossible for any service to investigate the ownership of an entire catalog of music.  This lack of ownership information or proper metadata impedes the ability of services to obtain compulsory licenses but also prevents services that do want to properly account to artists from efficiently paying royalties.

Mann’s Complaint is here:

Mann v MediaNet (Complaint) by Christopher S. Harrison

The accompanying declaration is here:

Mann v MediaNet (Grauberger Dec) by Christopher S. Harrison

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