Copyright Laws

Federal | State | International | Digital Music

A handful of federal, state, and international laws govern copyright practice. In general, they are designed to protect the rights of artists while preserving the public's right to benefit from the works of those same artists. The various laws provide for civil and criminal penalties for those found guilty of violations.

Federal

U.S. Copyright Law

The Federal Anti-Bootleg Statute
• Contributory infringement
• Vicarious liability

Fair Use Doctrine

The Sonny Bono Copyright Term Extension Act

U.S. Copyright Law {Title 17 U.S.C. Section 101 et seq., Title 18 U.S.C. Section 2319} Federal law protects copyright owners from the unauthorized reproduction, adaptation, performance, display or distribution of copyright protected works.

Penalties for copyright infringement differ in civil and criminal cases. Civil remedies are generally available for any act of infringement without regard to the intention or knowledge of the defendant, or harm to the copyright owner. Criminal penalties are available for intentional acts undertaken for purposes of "commercial advantage" or "private financial gain." "Private financial gain" includes the possibility of financial loss to the copyright holder as well as traditional "gain" by the defendant.

Where the infringing activity is for commercial advantage or private financial gain, sound recording infringements can be punishable by up to five years in prison and $250,000 in fines. Repeat offenders can be imprisoned for up to 10 years. Violators can also be held civilly liable for actual damages, lost profits, or statutory damages up to $150,000 per work.

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The Federal Anti-Bootleg Statute {18 USC 2319A} prohibits the unauthorized recording, manufacture, distribution, or trafficking in sound recordings or videos of artists' live musical performances. Violators can be punished with up to 5 years in prison and $250,000 in fines.

Two important legal concepts, especially pertaining to the Internet, should be kept in mind—contributory infringement and vicarious liability.

Contributory infringement may be found where a person, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another. For example, a link site operator may be liable for contributory infringement by knowingly linking to infringing files.

Vicarious liability may be imposed where an entity or person has the right and ability to control the activities of the direct infringer and also receives a financial benefit from the infringing activities. Vicarious liability may be imposed even if the entity is unaware of the infringing activities. In the case of a site retransmitting infringing programs, providing direct access to infringing works may show a right and ability to control the activities of the direct infringer, and receiving revenue from banner ads or e-commerce on the site may be evidence of a financial benefit.

For additional information, see the US Copyright Office.

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Fair Use Doctrine {USC Title 17, Sec 107} The "fair use doctrine" of federal law is a complicated area. Basically, it limits the extent of property interest granted to the copyright holder. For example, this might allow citizens to cite a quotation from copyrighted material when the excerpt is used for teaching, research, news reporting, comment, criticism or parody.

There are some limitations. Whether the court allows you to reproduce, distribute, adapt, display and/or perform copyrighted works depends upon the nature of the use (commercial purposes, non-profit, educational), the length of the excerpt, how distinctive the original work is, and how the use will impact the market for the original work.

Generally speaking, one is not allowed to take the "value" of a song without permission, and sometimes that value is found even in a three-second clip. When in doubt, it is always wise to check with the copyright owner, because in many cases even a small clip of a song may not be "fair use."

For additional information, see Cornell University.

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The Sonny Bono Copyright Term Extension Act This law extends U.S. copyright from life of the author plus 50 years, to life of the author plus 70 years. For "works made for hire," the term is extended from 75 to 95 years. This law should end the discrimination against U.S. works abroad, where countries applied a copyright to U.S. works which resulted in American creators receiving less protection than their foreign counterparts.

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State

State anti-piracy laws generally mirror the federal laws. Most states have unauthorized duplication statutes that make it illegal to copy, reproduce, and distribute sound recordings without authorization. Those statutes apply to songs recorded before recorded before February 15, 1972, the date that sound recordings were added … as well as to all foreign works that are not subject to the list of works protected by federal copyright law, as well as to all foreign works that were not subject to protection under federal copyright legislation.

Some states have unfair competition laws that address piracy. Nearly all have true name and address statutes that make it illegal to manufacture, sell, distribute, or possess for those purposes, CDs, tapes, or records that don't have the name and address of the manufacturer, and in some cases the performer as well. California, Florida, and New York have all passed legislation requiring optical disk manufacturers to permanently identify each disk with the manufacturer’s name and state. This protection is vital to maintaining a healthy and viable entertainment and software industry in California.

Many states also have bootleg statutes much like the federal one.

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International

The Berne Convention for the Protection of Literary and Artistic Works

Rome Convention

Trade Related Aspects of Intellectual Property Rights (The TRIPS Agreement)

The World Intellectual Property Organization Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)

Special 301

The Berne Convention for the Protection of Literary and Artistic Works is the keystone for all international copyright agreements. The World Intellectual Property Organization (WIPO) administers the Berne Convention. Today, although there is no such thing as an "international copyright" per se, most countries have agreed to basic copyright protection terms.

Basic Rights – Guarantees certain minimum rights to authors without regard to inter-governmental relations:

• The right to authorize the reproduction of his work.
• The right to authorize the translation of his work.
• The right to authorize the public performance or communication to the public of his work.
• The right to authorize adaptations or other alterations to his work.

Term – These minimum rights must exist for a period of not less than the life of the author plus 50 years.

Limitations – Any limitations of these rights must not prejudice the legitimate interests of the author or conflict with a normal exploitation of the work.

National Treatment – Nations are required to extend the benefits of their domestic legislation to authors of other nations belonging to Berne, and this obligation extends to rights which future laws may grant.

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Rome Convention

Right of Reproduction – Guaranteed right to control reproduction of work granted to phonogram producers and performers.

Rights of Performance and Broadcast – Right for phonogram producers and performers to control the performance and broadcast of their work, though countries may opt out of this.

Term – Rights granted under Rome are valid for 20 years from publication of the work.

Limitations – Blanket exemption for all rights if the use of the work is personal.

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Trade Related Aspects of Intellectual Property Rights (The TRIPS Agreement) Until the TRIPS Agreement was reached in 1994 in the GATT (now called the WTO - World Trade Organization), international legal protection was governed by two relatively inadequate treaties – the Rome Convention (1961) and the Geneva Phonograms Convention (1971). These treaties required their adherents to provide protection against literal copying, but achieved little else. The TRIPS Agreement applies to all works, including computer programs, compilations of data, cinematographic works, and sound recordings.

Performers' Rights – Performers have the right to prevent fixation of their unfixed performance, the reproduction of that fixation, and the wireless broadcasting of their live performance when done without their authorization.

Producers' Rights – Producers have the right to authorize or prohibit the direct or indirect reproduction of their sound recordings and the rental of their recordings.

Broadcasters' Rights – Broadcasting organizations have the right to prohibit the fixation, reproduction, or broadcasting by wireless means any of their broadcasts.

Limitations – Through incorporation of relevant provisions of the Rome Convention, signatory countries are free to define any personal use as non-infringing activity, regardless of the impact on the copyright owner, and therefore impose limitations on the articles of this Agreement.

Enforcement – Allows countries to bring action against another country if it is found to be in violation of the TRIPS agreement. Countries must protect all recordings released within the past 50 years.

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The World Intellectual Property Organization Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) were held in 1996 to address digital issues and are meant to further clarify Berne and TRIPS.

World Intellectual Property Organization Copyright Treaty (WCT) clarifies and extends protection offered under Berne and TRIPS, established to address digital concerns. Applies to computer programs, compilations of data (databases, though not the data itself), cinematographic works, and sound recordings.

Right of Distribution – Provides copyright owners with the exclusive right to authorize the making available to the public of the original and copies of their work through sale or other transfer or ownership. Refers to fixed copies as tangible objects only.

Right of Rental – Like TRIPS, owners of sound recordings and computer programs have the right to authorize or prohibit the commercial rental to the public of originals or copies of their works. Refers to fixed copies as tangible objects only.

Right of Communication – Grants authors the exclusive right to make their works available to the public in a manner in which the public may access them through on demand services (such as with the Internet). It also provides that such availability is to be considered a communication to the public, as opposed to an individual communication.

Technological Measures – Requires that countries prohibit the circumvention of technological measures used by copyright holders to protect their works.

Rights Management Information – Requires that member countries must provide adequate and effective legal remedies against persons who remove or alter electronic rights management information without authority, distribute, import for distribution, or broadcast works knowing that electronic rights management information has been removed without authority. Rights management information identifies the work, the author, the owner of any right of the work, the conditions of use, and any numbers that represent this information.

WIPO Performances and Phonograms Treaty (WPPT) Like WCT, provides copyright owners with the rights of distribution, rental, and importation, and includes obligations of signatories to technological measures and rights management information.

Reproduction – Grants performers and producers of sound recordings the exclusive right of authorizing the direct or indirect reproduction of their performances fixed in sound recordings, including in digital form, and grants that the storage of sound recordings in a digital form constitutes a reproduction.

Right of Making Available – Record companies have the exclusive right to make the original and subsequent copies of their sound recordings available to the public, to authorize the commercial rental of those recordings to the public, and to make the recordings available to the public by wire or wireless means.

Remuneration for Broadcasting – Performers and producers have the right to remuneration for the direct or indirect use of their sound recordings published for commercial purposes (including wire or wireless availability to the public on demand) for broadcasting or any communication to the public, subject to reservations.

Relationship Between Rights Owners – Clarifies that if authorization is needed from both the musical works copyright owner and the sound recording copyright owner of works in a phonogram, then the need for authorization from one of them does not cease because the other is also required.

Limitations – Reversing the rule of the Rome Convention under which personal uses were per se acceptable, it requires that limitations to any of the articles in the Treaty not conflict with the normal exploitation of the phonogram, and do not unreasonably prejudice the legitimate interests of the phonogram producer.

Moral Rights – The performer has: the right of paternity (to be identified), though it does not apply where omission is dictated by the manner of the use of the performance; and the right of integrity, or the right to object to distortions or modifications of their work.

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Special 301 RIAA is a member association of the International Intellectual Property Alliance (IIPA), which represents the US copyright industries in protecting copyrights internationally. IIPA works with the US Trade Representative in its annual "Special 301" reviews on how effective other countries are when it comes to protecting US copyrights.

Every year we identify major barriers members face in the international market. To see the most recent Special 301 Report that addresses this, and for more information on the intellectual property issues internationally, visit the IIPA website.

For a more in-depth discussion and to see the agreements in their entirety, please click here.

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Digital Music

The Audio Home Recording Act of 1992 (AHRA)

The Digital Performance Right in Sound Recordings Act of 1995 (DPRA)

The Digital Millennium Copyright Act (DMCA)

No Electronic Theft Law (NET Act)

The Audio Home Recording Act of 1992 (AHRA) This 1992 legislation exempts consumers from lawsuits for copyright violations when they record music for private, noncommercial use; eases access to advanced digital audio recording technologies; provides for the payment of modest royalties to songwriters and recording artists and companies; and mandates the inclusion of serial copying management technology in all consumer digital audio recorders to limit multi-generation audio copying (i.e., making copies of copies).

In general, the AHRA covers devices that are designed or marketed for the primary purpose of making digital musical recordings. Digital audio cassette players, minidisc players, and DAT players are devices covered by the AHRA. This law will also apply to all future digital audio recording technologies, so Congress will not be forced to revisit the issue as each new product becomes available.

The AHRA provides that manufacturers (not consumers) of covered devices must:

• register with the Copyright Office;
• pay a statutory royalty on each device and piece of media sold;
• implement serial copyright management technology (such as SCMS) which prevents the production of copies of copies.

In exchange for this, the manufacturers of the devices receive statutory immunity from infringement based on the use of those devices by consumers.

Multipurpose devices, such as a general computer or a CD-ROM drive, are not covered by the AHRA. This means that they are not required to pay royalties or incorporate SCMS protections. It also means, however, that neither manufacturers of the devices, nor the consumers who use them, receive immunity from suit for copyright infringement.

Click here for additional information.

The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) For nearly 30 years, the RIAA has been fighting to give copyright owners of sound recordings the right to authorize public performances of their work. Before the passage of the Digital Performance Right in Sound Recordings Act of 1995, sound recordings were the only U.S. copyrighted work denied the right of public performance. All that has now changed.

This law allows copyright owners of sound recordings the right to authorize certain digital transmissions of their works, including interactive digital audio transmissions, and to be compensated for others. As amended by the Digital Millennium Copyright Act in 1998, the right now covers cable and satellite digital audio services, webcasters, and future forms of digital transmission. Most non-interactive transmissions are subject to statutory licensing at rates to be negotiated or, if necessary, arbitrated. Exempt from this bill are traditional radio and television broadcasts and transmissions to business establishments.

The Digital Millennium Copyright Act (DMCA) This landmark legislation has its origins in the 1996 World Intellectual Property Organization's Diplomatic conference in Geneva, attended by more than 160 nations. There, two new treaties were negotiated (see International Law section) that represent the most important overhaul of international copyright law in the last quarter century. The treaties raise the minimum standards for copyright protection worldwide and make it easier to fight piracy of American products overseas.

Although U.S. copyright law already met the treaties’ standards, legislation was needed to meet the treaties’ prohibition of devices used to undermine electronic "locks." The Digital Millennium Copyright Act (DMCA) (among other things) does just that, among other things, by prohibiting the manufacture and distribution of devices designed for the sole purpose of undermining technology used to protect copyrighted works.

The DMCA law also delineates the responsibilities of Internet service providers (ISPs) in cases of infringement online. For example, the law formalizes a notice and takedown procedure between ISPs and copyright owners. It is now clear that when an ISP is aware it is posting or transmitting infringing content, the ISP must act to remove the infringing works or it may be liable for any resulting damages.

The DMCA also contains the key agreement reached between the RIAA and a coalition of webcasters and satellite audio delivery services. This section provides for a simplified licensing system for digital performances of sound recordings, such as those on the Internet and through satellite delivery. This part of the DMCA provides a statutory license for non-interactive non-subscription digital audio services with the primary purpose of entertainment, if terms of the license are met. Such a statutory licensing scheme guarantees webcasters and satellite services access to music without obtaining permission from each and every sound recording copyright owner individually and assures record companies an efficient means to receive compensation for sound recordings.

The greatest gains from the DMCA will be realized internationally. This law is a model for ratification and implementation of the WIPO treaties in other countries, where protection of sound recordings online is not sufficient. Formal U.S. ratification of the treaty package moves the worldwide ratification effort closer to the 30 countries that must ratify the treaties for them to take legal effect.

Click here for additional information.

No Electronic Theft Law (NET Act) sets forth that sound recording infringements (including by digital means) can be criminally prosecuted even where no monetary profit or commercial gain is derived from the infringing activity. Punishment in such instances includes up to 3 years in prison and/or $250,000 fines. The NET Act also extends the criminal statute of limitations for copyright infringement from 3 to 5 years.

Additionally, the NET Act amended the definition of "commercial advantage or private financial gain" to include the receipt (or expectation of receipt) of anything of value, including receipt of other copyrighted works (as in MP3 trading). Punishment in such instances includes up to 5 years in prison and/or $250,000 fines. Individuals may also be civilly liable, regardless of whether the activity is for profit, for actual damages or lost profits, or for statutory damages up to $150,000 per work infringed.

Click here for additional information.

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