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Statutory license of musical compositions

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History Edit

The mechanical license was established in the 1909 Copyright Act as the first compulsory license in U.S. copyright law. Congress created the license because it wanted to make musical compositions available for public use, prevent monopoly, and at the same time ensure that compensation is provided to copyright owners.

The first mechanical license was established in response to the 1908 U.S. Supreme Court holding in White-Smith Music Publishing Co. v. Apollo Co.[1] The Court decided that piano rolls were not considered 'copies' of a musical work because they did not contain a system of notation that could be read. Instead, the Court held they were merely mechanical reproductions made for the purpose of performing music. This decision prompted Congress to extend copyright protection to include the right to make mechanical devices which embody the musical work.[2]

However, Congress was concerned that extending the right of reproduction to include mechanical devices like piano rolls would enable a cartel of music publishers to exercise monopoly power over the recording of music to the possible detriment of the copyright owners of the musical work. To ensure a balance, Congress created the first compulsory license in 1909 to allow anyone to "cover" (i.e., make a new recording of) the musical work once a copyright owner made or authorized a recording of his or her musical work, as long as the licensee adhered to the terms of the license and paid the established royalty to the copyright owner.

Although originally enacted to address the reproduction of musical compositions on perforated player piano rolls, the statutory license has for most of the past century been used primarily for the making and distribution of phonorecords and, more recently, for the digital delivery of music online.[3]

1976 Copyright Act Edit

Whether to retain the compulsory license was a key issue during the discussions on the general revision of the copyright law in the 1960s. The outcome of this review was the decision to retain the license based on a finding that "a compulsory licensing system is still warranted as a condition for the rights of reproducing and distributing phonorecords of copyrighted music."[4]

In the Copyright Act of 1976, Congress reaffirmed this compulsory license and directed the Copyright Office to establish terms and regulations for the filing of Notices of Intention to Obtain a Compulsory License and for reporting Monthly and Annual Statements of Account.[5]

Section 115 of the 1976 Copyright Act, as amended, is the current authority for a compulsory license (or a statutory mechanical license) for reproduction and distribution of musical compositions.[6] The license protects the musical work copyright holder’s right to control certain reproductions of the work (e.g., copying the sheet music) but permits the recording of a song by a third party on "mechanical" media such as a CD.[7] In its present form, it essentially allows reproduction of musical compositions that may be heard with the aid of a mechanical device.[8]

The mechanical license is validly obtained only after a musical work has been initially distributed publicly under the authority of the copyright holder. The license is authorized when the licensee’s (recipient or user) primary purpose is to distribute the work publicly for private use. Currently, the mechanical license rate is 9.1 cents for songs 5 minutes or less, or 1.75 cents per minute or fraction thereof for songs over 5 minutes.[9]

The mechanical license has its limitations; it is only available to make and distribute phonorecords of a musical work and it does not authorize the duplication of a sound recording.[10] and it does not authorize the licensee to change the "basic melody or fundamental character of the work."[11]

References Edit

  1. 209 U.S. 1 (1908).
  2. H.R. Rep. No. 60–2222, at 9 (1909)("The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.").
  3. Statement of Marybeth Peters, Register of Copyrights, Before the Subcommittee on Intellectual Property: Music Licensing Reform, U.S. House of Representatives, 109th Cong., 1st Sess. at 20 (June 21, 2005).
  4. H.R. Rep. No. 83, at 66–67 (1967).
  5. 17 U.S.C. §115(b)(1) and (c)(5). These regulations can now be found within 37 C.F.R. 201.18 and 201.19.
  6. The Digital Performance Right in Sound Recordings Act of 1995 (DPRSRA) amended the compulsory license to include the reproduction and distribution of digital phonorecord deliveries (DPDs) over the Internet.
  7. 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §8.04[A] (2006).
  8. Al Kohn & Bob Kohn, Kohn on Music Licensing 677 (3d ed. 2002).
  9. This is the statutory rate effective from January 1, 2006, to December 31, 2007. U.S. Copyright Office, Copyright Royalty Rates, Section 115, the Mechanical License, available on June 30, 2006.[1]. However, the Harry Fox Agency typically negotiates and issues these licenses on behalf of songwriters, and the mechanical license is seldom used for the permission to make or distribute copyrighted musical compositions; such rate rarely exceeds that set by the U.S. Copyright Office.[2].
  10. 17 U.S.C. §115(a)(1).
  11. Id. §115(a)(2).

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