The United States Court of Appeals for the Second Circuit has upheld a district court finding that a download of a musical work does not constitute a public performance of that work, and consequently copyright owners should not be additionally and separately compensated for downloads of their music. The full decision, United States v American Society of Composers, Authors and Publishers Et al can be found here.
ASCAP is an association of US composers, songwriters, lyricists and music publishers, which boasts Stevie Wonder, Beyonce and Duke Ellington among its members. Similar to the Australasian Performing Right Association (APRA), ASCAP licenses its members’ copyright musical works to licensees who wish to perform them publicly. Approximately half of all online musical works are licensed through ASCAP.
The US District Court for the Southern District of New York acts as a “rate court”, determining a reasonable fee for applicants to obtain a licence from ASCAP. Yahoo! and RealNetworks are two such applicants who offer musical works to download on their websites. The parties agreed that downloading of the musical works amounted to copying of those works for which the copyright owners should be compensated. However, the District Court accepted Yahoo! and RealNetworks’ submission that making available for download a digital file containing a musical work does not constitute a public performance of that work. ASCAP appealed the decision.
The Court of Appeals agreed with the District Court’s ruling that making available for download a digital file containing a musical work was not a public performance “for which the copyright owners must separately and additionally be compensated”. Further, it was held that because each downloader has a “unique copy” of the musical work, each “performance” of that musical work (when the downloader plays the work) “is made by a unique reproduction of the song” which does not constitute a performance to the public. This finding seems to assume that the work is played for personal use.
The decision has important repercussions which may affect how much licensors will be able to charge for licensed musical works in the US. In Australia, the Copyright Act 1968 similarly provides that a copyright owner has the exclusive right to “perform the work in public” as well as the right to “communicate the work to the public”. Making available a musical work for download amounts to communication of the work to the public, however it would not amount to a public performance of the work.
