---

Published by Randall Krause on Monday, May 9, 2005  [Permalink] [Return to Top]

Does Podcasting Constitute a Public Performance?

(The following editorial was published in the May 9, 2005 issue of RAIN.)

I am in agreement that podcasting goes well beyond the traditional public performance, even in the 'interactive' sense. Perhaps a misnomer, 'podcasting' involves the digital-mechanical reproduction and delivery of a musical work onto a portable storage device. It should therefore not be considered the jurisdiction (or responsibility) of ASCAP and BMI to exercise licensing that does not involve protecting public performance rights.

However, it is also not entirely correct to state that the right to distribute music compositions in a podcast absolutely necessitates a compulsory license in which and every principal copyright owner (e.g. music publisher) must be identified and notified. The NMPA's licensing affiliate, The Harry Fox Agency, offers a convenient New Media License for this exact purpose.

The Copyright Act, Section 115, sets forth statutory terms and rates for the making of 'digital phonorecord deliveries,' or DPDs. However, ironic as it may seem, one must still procure separate Master Recording Licenses in order to even redistribute the existing sound recordings on which these respective music compositions are embodied.

Indeed, the recording industry appears to be yet again one-step-behind when it comes to enabling the evolution of radical new music technologies and services like podcasts.

Randall E. Krause
Executive Director
Small Webcaster Community Initiative
info@smallwebcaster.org

---