Fairness in Music Licensing Act–The Europeans Never Thought So . . .

Section 106 of the U.S. copyright statutes grants owners of works the following rights:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

But there are exceptions (or rather, exemptions, i.e., those situations that are not infringement of copyright).

Here, today, let’s take a gander at the Fair Music Licensing Act of 1998’s exemptions:

17 U.S.C. 110  provides all sorts of folks with the right to publicly perform songs, without being required to pay a penny to rights-holders for performance of the underlying song.  Among them (and colloquially described here):

1. teachers playing a song during a face-to-face session with students at a nonprofit educational institution–no recreation, though (no fun shall be allowed);
2. instructional broadcasters (as I am already put to sleep by the very idea of instructional broadcasting, I am currently unable to write about this one);

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3. preachers, during religious services (but the legislative notes suggest that this “exemption is not intended to cover performances of secular [stuff], even if they have an underlying religious or philosophical them [and take place during religious services]);
4. nonprofiteers, i.e., nonprofits, for a nonprofit motive;
5. “mom-and-pop” establishments who bring a radio into their business for the listening pleasure of the few who patronize their establishment (and the number of speakers used is still, somehow, crucial to the distinction);
6. folks who put on annual agricultural fairs (yes, the fairs must be annual);
7. record store owners who spin discs for their patrons; and
8. those who are specifically transmitting to the handicapped (think, the blind).

These particular exemptions were enacted into law about 1998.

Many Europeans did not like these exemptions, and sued the USA in World Trade Organization proceedings, i.e., World Trade Organization Dispute 160.  The Claimants, apparently, did not like that the “mom-and-pop” establishments got a free pass.  The Claimants thought it violated the TRIPS Agreement (i.e., the Trade-Related Aspects of Intellectual Property agreement).  Long story, long ago, probably since settled by both sides running out of steam.  The U.S. Congress may or may not have better things to do than consider changing its mind about whether “mom-and-pop” should pay for the songs that entertain their clientele.

Great graphic? (a map showing the United States of America as respondent in World Trade Organization disputes  — this shows the USA as a respondent in all the cases, not just Dispute 160).