The Dual Narratives in the Landscape of Music Copyrights

Abstract

The challenges that new technologies bring is a constant theme in copyright law, but in the field of music the problems are particularly pronounced. Much has changed in the music industry over the past century. As new business models emerged, incumbents in the music industry fought vigorously to capture revenue streams. As a result, the fragmented copyright rights that characterize the music industry have taken on new layers of complexity. The Copyright Act, federal regulations promulgated by the Copyright Office, Copyright Royalty Board proceedings, antitrust consent decrees, and federal district courts acting as “rate courts,” all play roles in establishing who has to pay, who gets paid, and how much money changes hands in the music industry. The variety of regulatory mechanisms that shape the royalty rates paid by different businesses that use and distribute music has resulted in a stunning disparity in prices paid for the music inputs used by different businesses.

This Article explores the complexity of music licensing through the lens of dual competing narratives in music copyright. The first narrative explains the varying treatment of music businesses as being aimed at maintaining fair remuneration for copyright owners in light of changing technologies. The second narrative sees the varying treatment as being aimed at protecting incumbent entities from the competition brought about through changing business models made possible by technological advances. Although the venues in which these narratives play out vary throughout different segments of the music industry, both narratives are clearly at play in shaping the complexity of music copyright.

Keywords: copyright, music, sound recordings, intellectual property

JEL Classification: O34, K20