By Scott Hervey

Podcasting is a way of publishing sound files to the Internet, and delivering the files to users who subscribe to a feed.#160 Podcasting uses a distinct content delivery protocal that has enabled many producers to create self-published “radio shows” that users can subscribe to and have delivered directly to their computer via one of a number of content aggregators.#160

Podcasts are technologically unlike webcasting or streaming. Webcasting is an Internet stream of a live broadcast, or an online simulcast of a broadcast signal.#160 Streaming is a technological means for accessing a stream of electronic information at the same time it is delivered to a user’s computer.#160 Neither webcasting nor streaming result in the creation of an audio file on the Internet user’s computer.#160 Podcasting however, involves the downloading of a single complete audio file to a user’s computer to be listened to at a later time.

Like blogs, podcasting has been adopted both by amatures who want to host their own “radio show” and by professionals who see podcasting as an inexpensive way to distribute content.#160 Podcasting is not the realm of techno geeks or Internet extremists.#160 Mainstream broadcasting and media companies have realized the benefit of podcasting.#160 National Public Radio offers podcasts of most of its shows, and Infinity broadcasting network announced plans to launch a pure podcast radio station.#160 ABC is even offering podcasts of Nightline and Good Morning America.#160 Despite Corporate America quickly embracing this new technology, the majority of podcasts being offered today are from individuals and small businesses.

One of the quickest ways for a podcaster to get into hot water is to infringe a third party’s copyright.#160 #160A number of music podcasts are produced by DJ’s or independent record labels that use their podcast programs as a means of promoting other artists.#160 Most of these podcasts have a “mixed tape” quality to them, especially in the dance, hip-hop and rap genres.#160 Other podcasts are produced by music fans who may be interested in a certain style or type of music.#160 For example, one more popular podcast, Coverville, focuses entirely on covers songs.#160 If a podcast includes music and the podcaster has not obtained all the necessary rights, copyright infringement will result.#160 The real problem is for podcasters who want to stay out of the RIAA’s crosshairs, determining exactly what type of license to get can be challenging.

Copyright law implications in music can become very confusing, very quickly.#160 Copyright law provides the copyright owner with the following rights:#160 the right to control the public performance of its copyrighted work; the right to control the production and distribution of a sound recording embodying a copyrighted work; and the right to create a copy of a sound recording.#160 Each of these rights may be implicated in podcasting.#160

Performance right organizations (PRO), such as BMI, ASCAP and SESAC license the public performance of copyrighted work.#160 Usually a license from all three is recommended because each organization represents different publishers of musical works.#160 #160Performance rights organizations have staked a claim to the right to license music for podcasting.#160 On its website, BMI claims that it has “been licensing podcasters for nearly a year covering the public performance rights to the BMI repertoire” and lists Coverville as one of its licensees.

The right to produce and distribute a sound recording which embodies a copyrighted composition is controlled by music publishers, who have abdicated the responsibility to the Harry Fox Agency.#160 HFA collects mechanical license fees (a mechanical license covers the right to reproduce and distribute copyrighted musical compositions [i.e. songs], including uses on CDs, records, tapes, and certain digital configurations) on behalf of publishers.#160 This includes full permanent downloads, whether or not charged for.#160 Since podcasting technology results in the creation of a single digital audio file to a user’s computer, HFA could rightfully claim that it is the proper agency to control licensing for podcasts.#160 While HFA has yet to make this claim, given what occurred when PROs and HFA were trying to determine who controlled the right to issue licenses for webcasting and streaming, it is only a matter of time.

It is important to note that HFA licenses cover the right to make and distribute recordings of musical compositions, and not the use of existing sound recordings.#160 In order to clear those rights, a podcaster would have to obtain permission from the owners of each sound recording, which in most cases are record labels.#160

In 1995 and again in 1999, the Copyright Act was amended to create a statutory license mechanism for the digital transmission of sound recordings and musical works.#160 The 1995 legislation covered uses like the commercial sale of MP3s, while the 1999 amendment covered webcasting and streaming.#160 The 1999 amendments allowed webcasters the right to webcast or stream copyrighted music, and required them to pay certain pre-set royalties to SoundExchange, a performance rights organization that was designated by the U.S. Copyright Office to collect and distribute statutory royalties.#160

The 1999 amendments to the Copyright Act do not provide coverage for podcasting because the statutory license only covers the transmission of a sound recording, not the distribution of a copy of it.#160 Podcasting involves the reproduction of a sound recording and results in the creation of an audio file on a user’s computer.#160 As stated above, clearing the right to create a reproduction of a sound recording, not just the musical composition, necessitates approval from the record label that owns the sound recording.#160

Although BMI and ASCAP are offering performance licenses, podcasters who want to remain on the right side of the law may also need to clear rights from other parties.#160 Because there is no industry wide standard and no central clearance mechanism like SoundExchange, clearing rights to the sound recording can be rather expensive and time consuming.#160 The music industry and our lawmakers need to devise a mechanism that allows podcasters to easily comply with the law and a licensing scheme that is not financially daunting.#160 Most non-corporate podcasters, such as Coverville, fund their operation entirely out of their own pocket, or by donations from listeners.#160 There is a desire for this type of alternative music programming; a desire that is not being fulfilled by commercial radio.#160 It would be shame if red tape and licensing costs silenced these unique and interesting programs emanating from the left of the radio dial.