Podcasting is Catching On, But Can Licensing Catch Up?
| Author | Zehra Naqvi |
| Pages | 06 |
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Podcasting is catching on because it facilitates access to information at our convenience. For example, a person who
loves a morning radio show that she can never catch because of a time conflict can now simply download the segment for later listening. Another person who missed his evening class the other day dreads going to the library to watch the tape of the class - in fact, the process of finding the tape and then sitting there watching it seems so horrible that he will not end up doing it. With podcasting, the person can download the class lecture directly onto his computer and listen to it from the comfort of his home.
Finally, this medium also appeals to the person more concerned with creating information for others' listening.
An aspiring radio personality can now make a broadcast and develop a loyal following of listeners.
"A podcast is an audio file archived on the Internet in such a way that it can be automatically accessed by a personal computer, downloaded and transferred to a portable MP3 player, such as an iPod."1
Podcasting is essentially a new form of technology, somewhere between webcasting and broadcasting. Because it cannot be classified as one of the existing forms, licensing music for it presents a host of new problems. For recording companies, artists, aspiring broadcasters, and existing radio stations on the verge of podcasting their daily broadcasts, this issue has huge implications.
Worldwide, the recording industry has faced a plunge in its revenues, resulting in fewer people doing more people's jobs; when an individual podcaster comes knocking at their door asking to negotiate a direct license for some of their music, he will not likely get their attention.2 In contrast, webcasters do not have to knock on any doors at all because webcasting is subject to the compulsory licensing arrangement established by the Digital Millennium Copyright Act (DMCA) of 1998.3 The difference between podcasting and webcasting is based on the underlying technology and piracy concerns.
Webcasting relies on noninteractive streaming technology which allows one to listen to the music clip without being able to download it onto one's computer and then fileshare it out later; a typical podcast is more interactive because it has music files embedded in it and can be downloaded and altered in such a way as to allow for the listener to cut out the segment and fileshare it later.4 The "interactive" nature of podcasting is what precludes it from the scope of existing statutory licensing arrangements. "With no licenses, no frequencies, and no towers, ordinary people are busy creating audio programming for thousands of others. They're bypassing an entire industry."5
The entire industry will have to wake up soon because the trend is catching on and there is potential for missed licensing revenues. As of July 2005, there were over 15,000 podcasts available through iTunes, with the number of subscriptions up to 5 million.6
Many current podcasts include indie music because a simple waiver form and direct licensing free them from any licensing worries. For mainstream radio, however, it is a more complicated matter. If the average radio station manager decided to podcast a half hour segment of their show, they would have to get licensing for each one of the songs they used from the respective recording companies.
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However, as larger companies like Whirlpool, GM, and Pepsi begin to invest in the technology, tailoring or sponsoring programs for their target consumers, recording companies might just renew their interest in licensing issues surrounding podcasting.7
Under the Digital Performance Right in Sound Recordings Act of 1995 (DPRSRA), "no one may perform a musical recording in a digital transmission without the consent of the copyright owner, usually a record company."8 Because podcasting is a digital transmission, the DPRSRA applies to it, but because of the interactive nature of the technology, the DMCA does not currently apply to it.9 The United States Copyright Office tasked SoundExchange, a nonprofit organization, with "licens[ing], collect[ing], and distribut[ing] public performance revenues for sound recording copyright owners (SRCOs) and artists for noninteractive digital transmissions on cable, satellite and webcast services."10 SoundExchange's website states that SoundExchange does not administer royalties for "interactive performances of sound recordings" or "digital downloads" and that licensing must be arranged directly with the copyright owner.11 In application, this means that because podcasting does not fall within the current scope of licenses administered by SoundExchange, podcasters have to seek direct licensing arrangements with individual recording companies.
Whatever licensing arrangement is selected, SoundExchange will likely be the one administering it. While there are no current lawsuits by the recording companies against any infringing use by podcasters, some speculate that it is just a matter of "waiting for the right defendant."12 In the meantime, the recording industry must decide what type of licensing will work for...
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