Re: radio station licenses

On 10/17/99, Bob Stock <bstock[_at_]mindspring.com> wrote:
>
> A discussion arose in one of the legal newsgroups about the licenses
> that are executed between performing rights organizations (like BMI
> and ASCAP) and radio stations (or night clubs) to play copyrighted
> works. See "Copyrights and Night Clubs" at misc.int-property.
>
> The key question (for me) was whether those licenses expressly permit
> the incidental reproduction of a sound recording to facilitate the
> playing of the song on the radio (or in the night club). For example,
> in the old days -- and probably still at some radio stations -- a song
> might be copied from its original medium (LP or now CD) to a cartridge
> before it was played on the radio from that cartridge. More modernly,
> the same song might be copied from a CD to a computer hard drive and
> then played on the radio. Is such a reproduction permissible? I don't
> see any statutory authority for the reproduction. I wouldn't call it
> fair use. Do the license terms permit it? Is there an implied license
> to do it?

I agree that this wouldn't be fair use, but this particular example shows some of the weakness in current fair-use law. Probably, the radio-station's motivation in copying the songs to a hard drive is convenience and accuracy in recording medium, and not a desire to illegally reproduce anything.

In terms of the type of fair use, this is similar to Universal Studios v. Sony, 464 U.S. 417 (1984). The fair use in that case was the convenience of time-shifting. The court found fair use when a non-commercial recording was made for the convenience of time shifting, but mentioned that if a commercial party made the recording for time-shifting purposes, it would not be fair use.

In a situation like this, it would be nice if there was some way to assert a kind of "commercial fair-use," but this is unlikely given the wording of Section 107(1).

Chris Loweth
<cloweth[_at_]bsglaw.com> Received on Mon Oct 18 1999 - 19:13:17 GMT