Page 50 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 2 Copyright in the Pre-Internet Age: An Intermediary-oriented Approach
An Intermediary-oriented Approach

the piano companies. It held that ‘copies’ in the context of copyright should be ‘in the same
126
sense and for the same purpose’ as the copyrighted work that is copied. Because piano
rolls and phonograph records were ‘operated in connection with the mechanism’, they were
treated as ‘parts of the machine’ that produced the music rather than ‘copies’ of musical
127
compositions. The failure of the sheet music producers, to a large extent, was due to the
128
Court’s concern over monopolies in the recording market. Before the Supreme Court
made its decision, the Aeolian Co., the largest manufacturer of piano rolls in the 1900s,
reached agreements with nearly all the music publishers for an exclusive right to record their
compositions once the Supreme Court awarded music publishers control over the recordings
of their compositions.
129
The difficult problem of securing revenue for copyright owners in the new distribution
channel, and record manufacturers’ interest in free competition was soon handed over
to the US Congress, which addressed it by crafting a compulsory licensing mechanism
for mechanical reproduction of musical compositions. Copyright owners of musical
compositions had the right to licence a record manufacturer to produce a record. However,
once a composition was licenced, it could be recorded by any other record manufacturer at a
130
fixed price without permission from the copyright owner. This arrangement was adopted
by the 1976 US Copyright Act and became the model for other national copyright laws. 131
In the battle over the right to record musical compositions, record manufacturers played
the role of distributors, distributing musical compositions in a new channel. As the following
account shows, as the value of sound recordings increased, the record manufacturers
gradually shifted their position to become record producers.
2) Sheet music transmitted by radio broadcasting: Collective licensing of the public
performance right
Phonograph recording technology transformed music from paper to another medium for the
first time, although the recording quality was poor. The magnetic recording technology developed
in the 1930s enabled sheet music to be broadcast so that consumers could enjoy music from their
radios. Because radios were more portable and affordable than phonographs and player pianos
(that played phonograph records and piano rolls), listening to music on the radio became the
most popular way to consume it, and broadcasters made huge profits. Unsurprisingly, sheet music

126 Ibid 11.
127 Ibid 31.
128 e.g., Banner (n 124) 113; Diamond (n 124) 421; Jessica Litman, ‘Copyright Legislation and Technological Change’ (1989)
68 Or. L. Rev. 275, 285; Alex Cummings, ‘From Monopoly to Intellectual Property: Music Piracy and the Remaking of
American Copyright, 1909–1971’ (2010) 97 The Journal of American History 659, 664.
129 Litman, ‘Copyright Legislation and Technological Change’ (n 127) 285; Cummings (n 127) 664; Joanna Teresa Demers,
Steal This Music: How Intellectual Property Law Affects Musical Creativity (University of Georgia Press 2006) 38.
130 17 U.S.C. § 1(e) (1909).
131 17 U.S.C. § 115; e.g., Berne Convention, art 13(1); French Intellectual Property Code (2017), art L 214-1 of; Copyright Law
of the People’s Republic of China (2010), art 40.

• 36 •