STREAMING MAY NOT BE COVERED UNDER COMPULSORY LICENSES, OFFICIAL SAYS

ANAHEIM -- Senior federal copyright attorney warned RIAA and cable companies that streaming media and music downloads might not be covered by traditional compulsory licensing for mechanical recordings. At roundtable discussion at Western Cable Show here, U.S. Copyright Senior Attorney Bill Roberts discussed pending petition by RIAA and others on individual streaming of music that also could cover video streaming.

Roberts said streaming was issue when “you can call up a particular song and have it streamed to your computer and you can listen to it in real time,” and limited digital downloads of music, which he said “will be delivered to your computer and either they have a certain number of plays to them before they go away or they have a time period, of maybe a week, before they disappear. What is the copyright status of that?”

At core of issue, Roberts said, “is the status of the temporary copies made during the actual transmission of getting songs through computer servers and to your computer and stored so you can actually listen to it.” While multiple copies made along transmission path “certainly seem to be recognized copies under the copyright law, does the recording company have to pay for them even though along the transmission path nobody is listening to them, just the end- user?”

As expected, “at least with respect to the temporary copies, music publishers hold the position that a copy is a copy. And if you make 10 copies to deliver via streaming one piece of music, then that’s 10 copies you have to pay for.” He said RIAA held position that it was “only the end user who is listening to recording material, therefore there should be only payment at the very end for that limited download.”

Both sides of issue requested ruling under Sec. 115, although Roberts doesn’t expect any response from Copyright Office until early 2002. He did make it clear he was troubled by the notion of extending compulsory licenses to cover new technologies: “How far we can go? Obviously, the recording industry is very interested in rolling out their services and is very hopeful we will determine that the compulsory license covers both forms of music streaming and covers both forms of temporary copies. I don’t know, though, that we will be able to go that far.” Roberts sees Sec. 115 license as very limited. “It’s the oldest compulsory license in the Copyright Act and it was designed for a very limited purpose” of allowing cover recordings to be made after release of original recordings. “It has been amended a little bit to cover digital phono record releases, so now it’s not just about a physical record, but a digital one you transmit over a computer. But I think it would really be pressing the statute beyond its bounds to interpret it in such a way that as to cover a lot of what is involved with the new services, such as digital streaming.”

Roberts referred to summer ruling on digital transmissions in which Copyright Office “took the position that when you have a streaming situation where a temporary copy is being made that there should not be copyright liability. In other words, there should not be royalty payments for the temporary copies that are made as part of the streaming process. You can analyze that either under its fair use -- the material of these copies are fair use because the field is being paid in the end use, which this use facilitates -- or we suggested, it could be an amendment to the Copyright Act to specifically cover buffer copies that are made of a particular piece of music that is digitally transmitted. So, we've already taken a stand on that. To the extent we would extend much beyond that in rulemaking, I'm not so sure.” Roberts acknowledged that Congress was staying on sidelines so far. “Basically, they are hoping that the industries will resolve it through private licensing.”

Countering Roberts was Matt Zinn, vp-gen. counsel and chief privacy officer for TiVo. Zinn described determination as critical to cable operators, satellite companies and ITV providers. “Music services are natural extensions of broadband services that companies like TiVo or even cable operators looking for incremental revenue might be interested in to drive out their existing investment. It would be extremely complicated to negotiate all these licenses. If you don’t have a compulsory license for these recordings, forget it -- you're never going to get a service off the ground without an extraordinary amount of effort.”

Addressing another potential hot button issue, Roberts said: “In the cable context, one of the questions I'm getting a lot now concerns the switch-over from analog to digital for existing cable licenses. What is that going to cover from the digital signal? I think looking at the statute, there’s no question, at least during the transition period when cable operators are switching from the analog signal to the primary digital signal of the broadcaster, the compulsory license will cover that. The other question is, what about all the additional programming services that broadcasters are intending to lay into their digital signal. Does the compulsory license cover that as well? And that is a real difficult issue. I'm hopeful somebody will petition me for rulemaking on that because I think it’s really going to take a rulemaking to resolve that.”