Published by Randall Krause on Tuesday, March 6, 2007 [Permalink] [Return to Top]
Pay-Per-Play Rates Wrongly Absent from SWSA
It has been put forth by members of the Webcaster community that the termination of the Small Webcaster Settlement Act of 2002 was unjustified and that a revenue-based royalty rate is the only reasonable alternative for small commercial Webcasters whom do not have the economic means to justify royalty payments based upon individual performances of sound recordings.
Similar testimony by Kurt Hanson, favouring an exclusive revenue-based royalty rate -- however with very limited evidence and justification provided for his claims -- appears in the Copyright Royalty Board decision, published March 6, 2007.
However, there are two critical factors that need to be considered with respect to the CRB ruling, in particular the lack of a revenue-based royalty rate:
1) The language present in the Small Webcaster Settlement Act makes it inadmissable as evidence during any future proceedings by the Copyright Royalty Judges for the setting of or adjustment of rates and terms for Webcasters.
2) The revenue-based model alone, while more feasible for small commercial Webcasters, does not provide appropriate remunerations to recording artists and record producers for the actual exploitation of the sound-recordings.
In effect, the Small Webcaster Settlement Act of 2002 enabled smaller Webcasters to "freely" exploit sound recordings in their Webcast programming with absolutely no regard for the scale of the performances taking place. Therefore, it is my assertion that the Act itself was at least partially flawed and should have at least included a limitation on the intensity of usage[1] by Webcasters for eligibility under the statutory amendment.
[1] The scope of this limitation could extend to "plays", "aggregate tuning hours", or any other industry standard metric.
Randall Krause
Executive Director
Small Webcaster Community Initiative
randall@smallwebcaster.org
