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Futures for Webcasting: Regulatory Approaches in Australia and the U.S.

Bruns, Axel (2003) Futures for Webcasting: Regulatory Approaches in Australia and the U.S. In Sonic Synergies, 17-20th July, Adelaide, Australia. (Unpublished)

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Abstract

In the history of the still-fledgling media form of online radio, the year 2002 will come to be seen as a time of drawn-out legal and legislative battles over sound recording royalties which seemed to spell the end for U.S. Webcasters at a number of points during the conflict. Protagonists in this trench warfare were a loose and increasingly fragmented coalition of online radio operators from the very small to the very large, and including Net-only Webcasters as well as the rebroadcasters of terrestrial stations, and on the other side the Recording Industry Association of America (RIAA) and its SoundExchange royalty collection agency as the representatives of performance copyright holders (yet following a wider agenda which remains the subject of intense guesswork). Also appearing in a story which at times began to resemble an episode of The West Wing were a motley crew including the Librarian of Congress, an ugly CARP, and – in an unlikely role as saviour of the industry – veteran Republican Senator Jesse Helms. The battlelines for this fight had been drawn long before, however. When the grandly named Digital Millennium Copyright Act (DMCA) became law in the U.S. in late October 1998, it introduced, inter alia, a requirement for royalties to be paid by online stations. Rates for such fees were to be determined according to a ‘willing buyer/willing seller’ model: "in establishing rates and terms for transmissions by eligible nonsubscription services and new subscription services, the copyright arbitration royalty panel shall establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller" (DMCA, 1998, p. 37) – in other words, they were expected to reflect what were standard fees in the digital media market. The DMCA itself did not set such rates, however, but left this task to an independent Copyright Arbitration Royalty Panel (CARP), made up of members temporarily appointed by the U.S. Copyright Office. Once set, royalties dating back to the date of passage of the DMCA were then to be paid retroactively by Webcasters. While agreements with ASCAP and other relevant bodies over performing rights (royalties due to the authors of copyrighted material) were reached soon – and resulted in an average rate of around 3% of a Webcaster’s annual revenue required to be paid (ASCAP, 2001) –, no decision had yet been made about royalties for sound recordings (due to the actual performers of a specific piece) as late as 2001, raising fears of a significant backlog of accumulated fees for at least three years suddenly burdening an industry which had yet to prove its profitability. Some Webcasters even preemptively began pulling the plug on their channels: in April 2001, for example, the ClearChannel network of on and offline stations shut down its 150 Webcasters (Borland, 2001).

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ID Code: 246
Item Type: Conference Paper
Keywords: Online radio, Webcasting, Copyright, Digital Millennium Copyright Act, Royalties
Subjects: Australian and New Zealand Standard Research Classification > LANGUAGES COMMUNICATION AND CULTURE (200000) > COMMUNICATION AND MEDIA STUDIES (200100) > Communication and Media Studies not elsewhere classified (200199)
Divisions: Current > QUT Faculties and Divisions > Creative Industries Faculty
Copyright Owner: Copyright 2003 (please consult author)
Deposited On: 02 Jul 2004
Last Modified: 09 Jun 2010 22:21

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