Reproductions of Music and Sound Recordings

AuthorRobert A. Gorman
ProfessionUniversity of Virginia School of Law
Pages75

The exclusive right to reproduce the copyrighted work, afforded by section 106(1), applies not only when the work is reproduced in "copies,"

i.e., material objects that are perceivable by the human eye, but alswhen the work is embodied in phonorecords." A copyrighted dramatior nondramatic literary work (poetry or a sermon would be an examplof the latter) is infringed by an unauthorized taping or recording of thtext of that work. The same is true of musical compositions, subject to most important exception known as the compulsory license. Sectio115(a)(1) of the Copyright Act provides:

When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of thcopyright owner, any other person may, by complying with the provisions of this section, obtain a compulsory license to make and distributphonorecords of the work.

In substance, once the copyright owner of a musical composition permitone person to manufacture and distribute recordings in the UniteStates, any person may record the composition and distribute its owrecordings, provided that person complies with the provisions of sectio115-most significantly by paying to the copyright owner a royalty provided for by statute "for every phonorecord made and distributed in accordance with the license."

The compulsory license for musical recordings can be traced back tthe 1909 Copyright Act, enacted when the recording industry was in itinfancy and when Congress was concerned that a single record manufacturer (the Aeolian Company) would secure a monopoly by buying up alrecording rights from popular songwriters. By "compelling" the copyright owner to license such rights to all record companies, after the initiarecording and distribution, Congress facilitated the development omany smaller record companies and the competitive nature of the industry that remains one of its characteristics even today. The statutory royalty rate in the 1909 Act was two cents per record of the copyrightesong. In 1976, Congress increased that rate only to 2.75 cents. Realizinthat economic conditions might warrant a change in the statutory rateand that it would be inconvenient to achieve such change through statutory amendment, Congress in section 801 of the 1976 Act created an administrative agency called the Copyright Royalty Tribunal ana empowered it periodically to reconsider the royalty rate under section 115 anto implement new rates.

Section 801(b)(l) of the...

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