Integrating Law and Economics
Chapter 5: Digital Music and the Anti-Commons
* 5.1 INTRODUCTION The American copyright system now separately protects the sounds in musical recordings and the words and melodies in the underlying compositions upon which they are based. Separate rights are defined for the reproduction and performance of each. Some of these component rights are under the exclusive control of one owner, while other rights can be under the exclusive or regulated control of a second. Moreover, different licensing and monitoring organizations operate in contrasting procedural manners and practice differing techniques for monitoring use and collecting revenue. The consequences of diffuse copyright are now pronounced in the digital era, where digital distribution has produced a breakdown of legal categories that had some basis in analog applications. Through the channels of the Internet, digital music can be accessed through downloading and streaming.1 Depending on whether the choice of a particular song is exercised at user or provider discretion, streaming further can be interactive or non-interactive.2 Complicating both downloading and streaming, there is also a wide spectrum of temporary downloads made available in music subscription services that incorporate variations in length of ownership, as well as interactivity, portability and listening quality.3 With digital technology, the same transmission of a recording or composition may implicate the distinct rights of temporary reproductions4 and wired performances;5 one copyright authority famously termed the outcome an example of ‘double dipping’.6 The two categories of reproductions and performances implicate the collecting and administrative interests of overlapping agencies that have no consistent procedure for pricing related rights, i.e...
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