Is it Real Listening, or Incidental Listening?
The digital questions just keep on coming. ASCAP and some others have maintained that the digital downloading of music implicates two strands of the copyright bundle, and that royalties for both are due. One royalty is due for reproduction of the recording (the digital equivalent of pressing a record or CD), and one royalty is due for the performance of the work, since the music can be heard during the download transmission.
In a royalty rate case before a federal district court in New York, ASCAP asked for clarification that both royalties must be paid when a piece of music is digitally downloaded.
Last week, the judge ruled that only one right, the reproduction right, is implicated, and therefore only the mechanical royalty for digital transmission must be paid. Streaming audio still requires payment of performance royalties. Thanks to William Patry at the Patry Copyright Blog for spotting that court result.
The question now is whether ASCAP continues the fight or turns its attention to the many other issues facing muscians as digital technology expands. My personal opinion is that the quest to collect royalties for the incidental listening to music while downloading is a pointless pursuit. If the individual consumer completed the download and THEN listened to it, clearly no performance royalty would be due. It’s an accident of timing and technology that you can create and listen to music at the same time, but if the purpose is to effect a download, then that is how it should be viewed.
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