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Donna Wentworth
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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June 10, 2005

Taking Derivatives, or How Many Copies Fit on a Disc

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Posted by Wendy Seltzer

Copyright Prof William Patry addresses derivative works today on The Patry Copyright Blog. He gets to the thorny intersection of the Section 115 compulsory license and newer multimedia discs, such as Super Audio and DualDisc, that contain multiple versions of the same recording.

Issues for compulsory licensing are presented because there is more than one layer on a single Super Audio disc. Two principal questions are: (1) whether some of these layers are merely "transfers" that do not represent new authorship, or, whether some, such as remixes for 5.1 channel surround sound, are derivative works for which a separate compulsory license fee is required unless (2) even though there are as many as three layers on a given disc (all perhaps with different derivative versions), the disc is considered to be one "phonorecord" within the meaning of Section 115, and thus one payment only is required notwithstanding that if the layers were separately released they would require three payments.

These aren't just law exam hypotheticals. About the only thing I've heard make record execs steam nearly as much as "peer-to-peer" is the music publishers' claim that they're entitled to double royalties for "copy protected but computer playable" CDs. The music publishers argue that they're entitled to royalties for each copy of the tracks on disc: one set of CD-audio tracks, often poorly hidden from the computer, and one set of WMA or other DRM'd files "meant" for computer playback. It's arguable that end-users have the music publishers, as well as incompatibility problems, to thank for the market failure of copy-protected CDs.

Comments (5) + TrackBacks (0) | Category: IP Markets and Monopolies


COMMENTS

1. Crosbie Fitch on June 10, 2005 7:49 PM writes...

Has anyone got a spare straightjacket?

Permalink to Comment

2. Mark J on June 11, 2005 6:57 AM writes...

If a "CD" comes with copy-protection that hinders my ability to use it fully, can I demand that the music publisher pay me a royalties refund? I mean, if two formats of music entitles them to double royalties, doesn't half a music format (broken CDDA) only entitle them to half as much royalties?

Permalink to Comment

3. Quinn Norton on June 11, 2005 11:49 AM writes...

This is one of those time where I really want them to try and charge more for a DRM'd disc. I think they'd sell one to the girl that brakes the drm and uploads the tracks and then never manage to sell another ever again. But then, they've been woefully bad at listening to market signals, haven't they?

Permalink to Comment

4. A.R.Yngve on June 11, 2005 1:34 PM writes...

"the music publishers' claim that they're entitled to double royalties for 'copy protected but computer playable' CDs."

Well, this sets a whole new legal precedent, doesn't it? I suppose from now on, every time I tape the late-night movie, I should send the movie studio a check for the VHS version I recorded?

Oh, and all those cassette tapes we've made of music that played on the radio... can you imagine the debts we owe music publishers for THOSE? Billions and billions and billions...

And don't forget the rights to the music copies stored in our BRAINS, too! EVERY time you sing or hum a copyrighted song, YOU... MUST... PAY!!

Tell the music publishers they can go f*** themselves.

Permalink to Comment

5. Alexander Wehr on June 13, 2005 9:30 AM writes...

'copy protected but computer playable' cd's.

the phrase is a farce.

I buy physical media because it is preferable in quality to that on p2p networks. If they lock down the CDDA audio i paid for and give me wma, mp3, or aac in cruddy 128kbits/s I say it's no different than the most dirty of bait and switch scams.

The FTC and many state and federal laws protect me from being handed a 10 year old ford when i buy a new chrysler, but there is no protection from this kind of robbery?

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