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A Summary of the DMCA just for Musicians and others on the Music Business by Brett Keller The following summary of the DMCA is designed specifically for people in the music business so if you notice anything strange like a jump from provision two to provision four it only means provision three was omitted for a lack of pertinence. Title One: WIPO Treaty Implementation The DMCA is broken down into five major parts or titles. The first part is designed specifically to meet all the requirements the US needed to comply with the WIPO treaties. The first two things that this section did will be of more interest to those own copyrights outside the US. The treaties required the US to recognize the copyrights of certain works from other countries and to recognize the copyrights of works that had fallen into the public domain in the US but not in their native countries. In other words, a work copyrighted in 1897 in another country would be considered old enough to be in the public domain in the US, but may not be so in its land of origin. In this case the DMCA says that the US will still recognize the copyright of that work until it enters the public domain in its country of origin. The second change required by the WIPO Treaties was as follows. US law requires copyright owners to register their work with the Copyright Office before they can raise a lawsuit regarding infringement of their work. To comply with the WIPO treaties, the DMCA made all foreign works exempt from this rule. This means that works created outside the US do not need to be on file with the US Copyright Office before undertaking a copyright infringement lawsuit. The third set of provisions provided for by the requirements of WIPO has a more direct influence on music industry folks working in the US. These provisions apply to the circumvention of technological protection measures. The US basically proposed an amendment saying that it is illegal to circumvent technological measures taken to prevent people from accessing or copying a work to which they do not have a legal right. The exception to this rule is when people want to make a copy of a work for “fair use.” In this case they may circumvent copy protection technologies but it is never acceptable to circumvent these technologies to gain access to a work. In other words, there may be times when you can legally hack a computer program to make a copy of it, but at no time can you hack it in order to use it when you don't have permission. For a recording artist this means that copy protected CD's released by you or your label can legally be hacked and copied in some "fair use" situations. The amendment also prohibits anyone from manufacturing devices or software which are primarily designed or marketed to help people circumvent technological protection measures. There are several exceptions to this part of the DMCA. Only those which would possibly be applicable to musical works have been noted below. The broadest exception says that all law enforcement is completely exempt from all the technological provisions mentioned above. Another exception says that non-profit libraries and educational institutions are allowed to circumvent technologies to gain access to works in order to decide if they would like to would like to gain legal access to those works. The encryption research exception allows people to circumvent protection measures in order to determine their flaws and to help further the development of better protection technologies. The protection of minors exception allows the court to impose technological protections safeguarding minors from material on the internet. The WIPO treaties' technological provisions also required the US to create certain protection provisions for Copyright Management Information (CMI). CMI is basically any information about the work outside of its actual content. This includes things like the title, the author, and terms and conditions for use. The DMCA amendment makes it illegal to alter the CMI attached to electronic works without permission or to knowingly distribute works in which the CMI has been illegally altered. There is once again an exception for law enforcement agencies. There is also an exception for certain broadcast stations and cable systems which can alter CMI when there is no intent toward any type of infringement. Files traded illegally on peer to peer services like Kazaa often contain misleading or false CMI. Title Two: Online Copyright Infringement Liability Limitation Title two of the DMCA addresses the issue of internet service provider's (ISPs) responsibility for copyright infringement committed by their subscribers. The DMCA says that ISP's are not responsible for the actions of their clients as long they meet a number of provisions. They first have to meet one of the four definitions of an ISP as set out by the DMCA. Each of the four types have a different set of provisions the ISP must comply with. They then have to inform their users of and carry out a policy which says that people caught using their service for infringement multiple times will have their subscriptions to the service canceled. Finally, this section of the DMCA gives the copyright holder a new right to call upon the courts to subpoena an ISP for the identification of an alleged copyright infringer. This part of the DMCA is of greater significance to music makers then they may realize at first reading. This is the part of legislature that allows peer to peer service providers to continue to operate without responsibility for their hundreds of thousands of users that are committing copyright infringement. At the time the DMCA was drafted, Congress had no way of knowing that this amendment would open the doors to mass music piracy. Title Four: Miscellaneous Provisions The fourth section of the DMCA contains several miscellaneous provisions, some of which are important to the music industry. The second provision of this section is related to ephemeral recordings for broadcast. These are copies of recordings made in order to simplify the broadcasting process. This might mean that a radio station uploads all the songs on its play list to a hard drive so that the DJ doesn't have to fumble with CD's or so programming can be automated. The DMCA amends the Copyright Act allowing such recordings to be made in order to facilitate digital transmission. The DMCA also allows broadcasters to request copies of recordings from the copyright owner when they contain technological protection measures against copying. If the recordings can not be provided the radio station is given the right to bypass the protection technology in order to make their own copies. Provision number four of this section amends the copyright law in regard to a public libraries right to make copies of phonorecords. Under the DMCA libraries are now allowed to make up to three copies of a phonorecord provided that they properly label the copies with notice of copyright. If the copies are in digital format, however, they may not be removed from the library archive or premises. The library is also allowed to make copies for the purpose of replacing lost or damaged works and for the purpose of replacing works in obsolete formats. In these situations digital copies still may not leave the library. The fifth provision makes amendments to copyright law addressing issues on webcasting. In 1995 the Digital Performance Right in Sound Recordings Act (DPRA) was passed by Congress. Under the DPRA, services providing digital transmissions are required to pay a performance royalty with the exception of digital broadcasts made by FCC licensed broadcast stations which are already exempt. This meant that owners of sound recording copyrights could now collect royalties for digital performances of their work. It should be noted that the US is the only country in the world with advanced copyright laws that does not provide a public performance right for radio broadcasts. The DPRA covered three categories of digital transmission. They included the broadcast transmissions (which are exempt), subscription transmissions, and on-demand transmissions. Webcasting didn't fit clearly into any of these three categories so the DMCA amended the DPRA so that webcasting would fall into the category of eligible non- subscription transmissions. The DMCA also created a statutory license to allow digital transmission organizations to make more then one ephemeral recording. Important: If you own any type of copyright to music which is being webcasted you will not receive royalties unless you register your work with SoundExchange. SoundExchange is like the ASCAP or BMI of webcasting. They monitor webcasts and distribute royalties to songwriters, record labels, and performers based on how often their music is played. They can only identify and pay you for your music, however, if you register your work with them. You can find out how and why by visiting their website at http://www.soundexchange.com. Registration is free and if your music is being webcasted you will get paid! Back to intro
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