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BY
KURT HANSON Librarian of Congress James Billington is required by law to
announce a statutory "sound recordings performance royalty"
rate for Internet radio this Thursday, June
20th, concluding a almost four-year-long process to determine
an appropriate royalty rate.
The key decision-makers in the process are actually Register
of Copyrights Marybeth Peters
and U.S. Copyright Office general counsel David
Carson (presumably no relation to the director of "Star
Trek Generations"), who will be making the decision based
on tens of thousands of pages of evidence and legal filings that were
part of the recently-concluded CARP
(Copyright Arbitration Royalty Panel) process.
The rate will cover the period from the passing of the Digital
Millennium Copyright Act in October, 1998 through the end of this
calendar year. A new CARP is supposed to determine a rate for 2003-2004,
but a House Judiciary subcommittee hearing
last week seemed to establish that all parties involved feel the CARP
process is badly flawed and needs revision.
Their decision is complicated by the fact that the basis for
the rate is, by law, supposed to be the rate that best reflects what
a "willing buyer" and
a "willing seller" would
agree to and, to date, such a rate has essentially not yet
been established
through marketplace dynamics.
If the Copyright Office looks at precedent established over
the past few decades for the royalty paid to the composers of songs
or looks at the precedent established in other countries (where
a sound recordings performance royalty for radio airplay has long
been in effect) they will likely set a royalty rate expressed
as a percentage of webcaster revenues
(in the 3-5% range) (see RAIN story here).
However, if the decision-makers feel constrained, as the CARP
did, to look only at actual deals cut between the RIAA and webcasters
to date, they may set a rate expressed as a flat fee per song per
listener a decision that would most likely bankrupt most of
the nascent Internet-only radio industry and cause most of the remaining
broadcasters that have not already done so to drop the Internet simulcasts
of their broadcast stations.
Watch for full coverage of this issue, including "RAIN
Reader Feedback," throughout the week in RAIN.
From the Christian Science Monitor: "The Librarian
of Congress is usually not considered a magnet for controversy.
But on June 20th, the eyes of Internet broadcasters and music industry
insiders will focus on James H. Billington
[right] as he decides what royalties Internet radio stations will
pay to record labels...
"The issue of Internet-radio royalties was first raised
when Congress passed the Digital Millennium Copyright Act (DMCA)
in 1998.
"This law, intended to strengthen the copyright protections
of digital media such as software and CDs, also required the recording
industry to negotiate with Internet broadcasters to determine how
much artists should be paid when their music is played on an Internet
radio station. The sides failed to reach an agreement, so Congress
directed Mr. Billington to form a panel to set the rates...
"But in February, the panel chose a pricing model based
on a per-song rate -- roughly $1.40 per song for every 1,000 listeners,
or 70 cents for terrestrial broadcasters simulcasting online.
"Web-only broadcasters claimed that the rates would
force them to shut down...Billington rejected
the proposal, leading up to the final resolution of the issue next
week.
"Had the royalty structure been approved, it would have
spelled disaster for Internet broadcasters, according to Kurt
Hanson, publisher of RAIN: The Radio And Internet
Newsletter.
"'What was surprising about the [panel's] decision is that
in the current advertising environment, that's about 200 percent
of revenue,' says Mr. Hanson. 'When you have to pay 200 percent
of your revenue to somebody, it kills your business.'
"But those representing the recording industry argue
that this is beside the point. 'It's not really our job to figure
out
their business model, that's their job,' says [SoundExchange executive
director John]
Simson [above]. 'We've just asked that we be paid
fair market value for our service...'
"[Jim] Atkinson ofW3K,
who says his station would have had to pay 342 percent of its revenue
in royalties under the panel's proposal, is hopeful that Billington
will either choose a system based on a small percentage of gross
revenues, or send the problem back to a new arbitration panel with
greater representation of smaller broadcasters.
"'Things will work out properly now; artists will finally
get paid,' he says."
Read this entireChristian Science Monitor article
here.
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From the Philadelphia Inquirer: "Internet 'radio' is
really a misnomer for music and other audio programming transmitted
over
the Web, capable of being heard by anyone with a reasonably new
computer, a Web connection, and a pair of speakers or headphones.
"Sometimes called Webcasting, it is different from the
often-illegal downloading of music made popular by the defunct Napster
site, because listeners hear radio-style programming only while
they are connected to a Web site. Typically the audio is not recorded
onto their hard drives...
"Generally, however, the economics of Internet radio
so far have been appalling, as advertising revenue has failed to
support it.
In October, industry pioneer NetRadio Corp. of Minneapolis, Minn.,
which had Webcast 100 channels of online music and information,
went belly up after six years of mounting losses. And the number
of Internet radio outlets has been dropping monthly since March,
even as listenership continues to rise, according to audience-tracking
service MeasureCast Inc.
"MediAmazing, a
Webcaster in Nazareth, Pa., has just switched to a $3.95-per-month
subscription model to stave off disaster...
"But many of those doing Internet radio say they fear
they will be wiped off the Web if the Library of Congress, which
oversees the US Copyright Office, sets music royalties that are
too steep for the startup industry to pay. A decision on the rates
is due by Thursday.
"'We're basically hanging in the lurch at this point because
we don't know what the Librarian [of Congress] is going to do,'
said Kevin Shively [right],
spokesman for classical music site Beethoven.com.
"Royalty rates and detailed reporting requirements
proposed earlier this year by a panel of arbitrators -- and rejected
without comment last month by Librarian of Congress James
H. Billington -- would have bankrupted many Webcasters,
Shively said...
"But it is not clear how far Billington, a Bryn Mawr
native, will go to remedy the perceived imbalance. A Library of
Congress spokesman, Craig D'Ooge, said last week that Billington
would not comment.
"If there are objections to his decision, it could
be appealed in federal court, or altered by legislation, which some
members of Congress have said they would initiate if the nascent
Internet radio industry were threatened..."
Read this article from the Philadelphia Inquirerhere.
"Expand
the ways listeners can receive their music..."
I read the piece about Sony's revamping of their policy on
CD burning and being able to get songs individually and by the album.
This was what had been spoken of so long ago before all of this RIAA/CARP
'stuff' started. This could be a great trend setter for others.
Some folks are finally seeing you shouldn't take away what
we have had all along, just take advantage of new technological changes
that allow them to expand the ways listeners can receive their music.
Listeners will certainly be happier about some aspects of this whole
music and radio fiasco if this does in fact happen.