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MOCA: An Overview
By Duff Berschback - 06/05/2007 - 12:01 AM EDT
The proposed
Music Online Competition Act is a bill the U.S. Congress will consider
in the future. Sponsored by Rep. Rick Boucher (D, Va.) and Chris Cannon
(R, Ut.), the bill would affect songwriters and their interests. Its
ostensible purpose is to facilitate the online distribution of music,
increase online competition, and prevent currently entrenched music
business interests from monopolizing the digital world. This article
highlights some of the bill’s important provisions. Although much of
the MOCA deals with sound recording copyrights, to the extent that
changes to the rules governing those rights affect owners of song
compositions, they are relevant to writers and publishers.
1.
Nondiscriminatory Licensing. MOCA states that if a record company
licenses to broadcast or distribute internet music interactively, the
company must make the sound recordings available on no less favorable
terms to other entities that offer similar services. Some have called
this a “quasi-compulsory license”, i.e. it doesn’t force the copyright
owner to license, but states that if the owner chooses to license to
one, it must offer the same terms to all.
2. Ephemeral
Recordings. Present copyright law allows a webcaster to make and retain
a single ephemeral copy of a sound recording necessary to facilitate
transmission, provided certain conditions are met. This is problematic
for webcasters because they need to make multiple ephemeral copies to
accommodate various codecs and bitrates. MOCA covers this situation by
allowing for the creation of multiple copies to facilitate the
transmission of a performance, and also allows webcasters to store
copies on geographically diverse servers. Importantly, these provisions
are only available to those who currently hold statutory licenses.
3.
Online Performance Exemption. Copyright law allows “brick & mortar”
retail stores to play songs to promote record sales without paying
performance license fees. MOCA extends that performance right exemption
online. Effectively, it codifies what has evolved as industry practice,
limiting the amount of time of the clip to 30 or 60 seconds, depending
on various factors.
4. License Streamlining. MOCA provides that
a person who wants to obtain a compulsory mechanical license to file an
application directly with the U.S. Copyright Office and deposit the
royalty fee there, instead of serving notice on the copyright owner. It
also instructs the C.O. to establish an electronic notification method.
MOCA extends the application of the compulsory to “limited digital
phonographic deliveries”, i.e. “time-outs”, etc.
5. Incidental
and Archive Copying. Incidental, or “buffer” copies are those made by a
user’s computer in RAM when listening to a stream or initiating a
download. MOCA characterizes them as having no real economic value, and
therefore exempts them from an owner’s exclusive rights. It also
legalizes the creation of archival or backup copies of music purchased
over the internet.
6. Direct Artist Compensation. MOCA
mandates that the sound recording performance royalties labels must
share with artists be paid directly to the recording artists. In other
words, the artist’s digital public performance royalties would be
treated similarly to a writer’s PRO monies—paid directly and
non-recoupable.
It remains to be seen whether this bill will
receive any significant attention in the near future, and whether its
provisions will undergo major changes in the process. Initial label
reaction to the bill has not been positive, with the primary claim that
it is unwise for the government to intervene in a nascent market. Look
for future updates on this and other proposed legislation in future
columns.
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