Reposted from DLA Piper’s Sports, Media and Entertainment Blog

By Matt Ganas and Sam Churney

As part of a concerted effort to assess the effectiveness of existing methods of licensing music, the US Copyright Office has published a request in the Federal Register for public comment on a number of copyright issues. This request relates to an ongoing congressional review and a potential overhaul of the US Copyright Act, 17 U.S.C. 101, et. seq. (the “Act”),  in view of technological developments that continue to shape music industry practices in the digital age.  According to the Copyright Office, information gathered during the public comment period will be reported to Congress for consideration of possible revisions to the Act.

The congressional review is directed to a variety of issues concerning the US copyright system’s mechanisms for licensing musical works (i.e., compositions) and sound recordings (i.e., recorded performances of musical works). The Copyright Office thus seeks public comment related to a number of subjects, including (for example):

  • whether Section 115 of the Act – which establishes a compulsory licensing scheme for the right to reproduce and distribute phonorecords (i.e., physical copies) of musical works – should be updated to permit licensing of musical works on a “blanket” rather than “song-by-song” basis;
  • whether the scope of Section 115’s statutory license should be expanded to include public performances of musical works;
  • whether antitrust consent decrees governing Broadcast Music, Inc. (“BMI”) and the American Society of Composers, Authors and Publishers (“ASCAP”) with respect to public performance licenses for musical works:
    • are serving their intended purpose of protecting licensees from anticompetitive price discrimination, or
    • should be amended to enable music publishers to withdraw digital rights from the blanket BMI/ASCAP license and negotiate public performance licenses directly with digital music services (an issue that internet radio service provider Pandora recently litigated against both ASCAP and BMI);
  • whether the limited public performance right in sound recordings pursuant to Section 114 – which applies only to “digital audio transmissions” (i.e., satellite radio and internet-based music services) – should be expanded to include broadcast radio transmissions; and
  • whether federal copyright protection should extend to sound recordings made prior to February, 15 1972 in view of recent developments and, if so, whether pre-1972 sound recordings should be included within the Act’s statutory licensing provisions.

In addition to considering specific revisions to the Act, Congress is also assessing how the federal government might influence music licensing policy more generally.  The Copyright Office thus seeks comment on whether and to what extent the government could play a role in encouraging: (i) the development of alternative licensing models and (ii) the adoption of universal standards for identifying sound recordings and musical works to facilitate the music licensing process. From an economic perspective, Congress is also analyzing how music marketplace advancements have impacted the income of recording artists, composers and songwriters, and whether industry revenues are split fairly between distributors and creators of musical works and sounds recordings.

Comments are due by May 16, 2014 and can be submitted electronically on a comment page on the Copyright Office’s website.

The relevant notice in the Federal Register can be read here: