DMCA

Social Radio teams with Philippine TV network to launch webcaster Balut Radio

Tuesday, April 9, 2013 - 2:15pm

TV5 New Media in the Philippines has lauched Balut Radio, a customizable Internet radio service featuring Original Pinoy Music (OPM) and internation hits, for listening in that country.

The new service was built on Portland, Oregon-based radio software development firm Social Radio's platform.

Balut Radio features dozens of curated channels listeners can customize, plus a "build your own" channel feature. The service adds radio voice talent integrated into the personalized channels, plus news and information, artist interviews, and live performance video.

Social Radio is using the Balut Radio launch to introduce new audience metrics to its offerings. The company says it will measure "number of unique devices," "distinct user accounts," and "average percentage of song played," and offer these sorts of metrics to other Social Radio clients.

In working in the Philippines, Social Radio sees a distinct advantage when it comes to intellectual property use.

Steve Allaway, Social Radio’s CEO, explained the service's position: "Because there is sensible royalty legislation in the Philippines, we’re able to really exercise the capabilities we architected into Social Radio... dedications, individual song sharing to Facebook with a link back to that song in the player, showing listeners what songs are coming up next... those are a few of the features... that would make the service completely illegal in the United States."

Balut Radio is "geo-blocked" from countries with performance license legislation less-favorable to services (like the U.S.). Listeners in American can access a limited set of Balut Radio features that Social Radio says are within Digital Millennium Copyright Act parameters.

TV5 is a major Filipino commercial television network.

Clear Channel and Wind-Up Records strike royalties deal

Tuesday, April 9, 2013 - 2:15pm

There's now yet another "marketplace" deal between Clear Channel and a record label -- this time, Wind-Up Records -- that will have the broadcaster pay a share of ad revenue for its broadcast of the label's music. In exchange, Clear Channel gets a discount on its royalty obligation when it streams the same music.

One reason deals like this are significant is broadcasters in the U.S. are not compelled to pay copyright owners or performers for the broadcast use of copyright sound recordings. The Digital Millennium Copyright Act of 1998, however, requires payment for the digital use (e.g. webcasting, satellite radio, cable radio) of this material. While the music industry has long bemoaned broadcasters' free over-the-air use of its intellectual property, Internet radio and other digital services have chafed under royalty obligations that can amount to half (or more) of revenues.

Such agreements could be a sign that broadcasters like Clear Channel understand the broadcast royalty exemption may not last forever, and what's more, online delivery of content is becoming more and more vital to radio. On the other side, labels like Wind-Up perhaps see that webcasting in their future too.

Industry legal expert and authority on royalties David Oxenford has written that these deals could be pivotal in upcoming government deliberations on setting a statutory U.S. webcasting royalty rate. Without actual marketplace royalty agreements, Copyright Royalty Board judges have so far been compelled to use the "willing buyer willing seller" standard and set royalties where they think a hypothetical market players would settle. And so far, all of those determinations have been wildly in the record companies' favor.

When Clear Channel's "royalty swap" agreement with the Big Machine Label Group was announced, Oxenford wrote, "the pro-record company outcome of the CRB proceedings may well be changed if these deals can be shown to be representative of the real value of the public performance of the sound recording." (Read more in RAIN here.)

Oxenford moderated "The Song Plays On," a panel discussion concerning webcast royalties, Sunday at RAIN Summit West.

Clear Channel has struck similar deals with Glassnote Entertainment Group, Dualtone, DashGo, rpm Entertainment, Robbins Entertainment, and Naxos.

Wind-up Records launched a number of multi-platinum rock artists, including Evanescence, Creed, Finger Eleven, and Seether, and has brought on Five for Fighting, O.A.R. and The Darkness, among others.

Experts say fixing copyright law is nearly always an arduous battle

Thursday, March 21, 2013 - 12:40pm

Register of Copyrights for the U.S. Copyright Office Maria Pallante has made clear she'll work to convince Congress to reform this country's copyright law.

Yesterday the House subcommittee that oversees intellectual property and the internet (these guys) met to discuss those recommendations. The most-recent significant revision to copyright law was 1998's Digital Millennium Copyright Act. Among many other provisions (many controversial), it's that law that governs the process by which webcasters pay royalties for the use of copyright sound recordings.  

Pallante says she's focused mostly on fixing the DMCA itself.

Web news source The Verge writes, "most of the tech and entertainment lawyers and executives (we've) interviewed... are skeptical Pallante can bring about any significant change — while many on both sides are clamoring for an update of the DMCA, many of the interested parties fear that they could end up with an even unfriendlier law."

Read more in The Verge here.

Bookmark this reference: A Brief History of Webcaster Royalties

Monday, December 3, 2012 - 12:35pm

When reporting on copyright and licensing issues, we've often leaned on the clear explanations from industry attorney David Oxenford and the Broadcast Law Blog. Here's another resource to bookmark: Terry Hart's Copyhype blog and his A Brief History of Webcaster Royalties.

It's a great run-down of the laws that provide the framework for Internet radio sound recording royalties (the DPRA and the DMCA), the various webcasting rate determinations and settlements, and yet another clear and concise explanation of "801(b)" vs. "willing buyer willing seller."

Hart began the blog in August, 2010. He received his J.D. from our hometown Chicago-Kent College of Law and has a certificate in intellectual property law. He was also a media monitor and mobile disc jockey. The front page of Copyhype is here.

Apple deal with labels might include sharing ad revenue, inventory for relaxed restrictions in how it uses music

Friday, October 26, 2012 - 1:35pm

Bloomberg News reported late yesterday that Apple's rumored negotiations with record labels (first reported in RAIN here) "have intensified," and that negotiators could reach a settlement by the middle of next month. That would pave the way for Apple's own ad-supported Internet radio service to launch in early 2013.

Early last month, The New York Times and The Wall Street Journal broke the story that Apple had been in talks with major record labels for its own webcast service. Following the publication of the Bloomberg story, Pandora's stock price fell 12%, to an all-time low of $7.97 this morning, valuing the company at about $1.3 billion.

The negotiations reportedly involve record labels getting a share of advertising revenues and inventory. "In addition to an upfront fee, record companies are seeking a percentage of ad sales and the ability to insert their own commercials for artists," Bloomberg reports.

In exchange for sharing ad income and space, Apple would presumably be allowed to stream music without the same constraints with which other webcasters do (the technical term for these constraints is the "sound performance complement" of the Digital Millennium Copyright Act). Apple "wants listeners to be able to buy tracks as music streams or revisit what they’ve heard in auto-generated playlists."

"If Apple offers a radio product, it will be far superior to anything else on the market," Rich Greenfield, a New York analyst with BTIG, told Bloomberg. "They’re seeking direct licenses to avoid all the restrictions that come with a compulsory license." 

The story also reported that Apple's Internet radio service would be mobile-focused, "tailored for its iPhone, iPad and iPod Touch" devices. In other words, if sources are correct, the service won’t be focused on delivering music through a Web browser.

Bloomberg attributes all of these details to "people with knowledge of the talks."

Read Bloomberg News here.

CC deals with labels might provide marketplace benchmark for more equitable CRB royalty rates

Monday, October 1, 2012 - 4:55pm

"In setting (webcast royalty) rates, the (Copyright Royalty Board) looks to establish rates that reflect what a willing buyer and a willing seller pay in the marketplace. In past royalty proceedings, that willing-buyer, willing-seller price had to be estimated, as there were no real deals to use as a benchmark. And the estimates all went against webcasters. With a deal like that with Big Machine... the pro-record company outcome of the CRB proceedings may well be changed if these deals can be shown to be representative of the real value of the public performance of the sound recording."

That's industry attorney David Oxenford's take-away from recent "direct deals" between broadcasters and record label for both terrestrial and digital sound recording royalties (the latest of which involved Clear Channel and Glassnote Entertainment, covered in RAIN here).

Copyright Royalty Board judges, per the 1998 DMCA, don't set royalties considering the fairness and "mimimal disruption" of their decision (as is called for in the Copyright Act's "801(b)" standard, which is used in royalty determinations for other forms of digital radio). They are mandated to set a rate at what they think a "willing buyer" would pay and what a "willing seller" would accept. Critics point to this different and unpredictable standard as the reason Internet royalty has been saddled with sound recording royalties that, as a percentage of revenue, are many multiples of those paid by satellite and cable radio. It's also the impetus behind the recent Internet Radio Fairness Act, introduced to both chambers of Congress (in RAIN here).

Oxenford is suggesting that should deals like Clear Channel's and Entercom's (both groups have reached agreeements with Big Machine Records) start to spread to other companies, they could very well represent the "marketplace" agreements with willing buyers and willing sellers that could set "a precedent for lower royalties in future proceedings."

The next round of proceedings to set webcasting royalties starts in 2014 (to set the rates for 2016-2020).

Read Oxenford, a D.C.-based partner at Wilkinson Barker Knauer, in Broadcast Law Blog here.

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