Page 51 - 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

producers wanted a share of the profits generated by the new distribution channel.
Theoretically, the right to publicly perform sheet music has been a part of copyright
132
protection since the 1909 Act. Nevertheless, the question of whether radio broadcasting
constituted public performance remained controversial until 1931. In that year the US
Supreme Court held that the transformation of radio waves into sound waves was a
133
public performance. It should be noted that courts have distinguished commercial radio
134
broadcasting from non-commercial purposes. In the former situation, not only the original
broadcast, but the public redistribution of the broadcast have fallen within the scope of public
135
performance controlled by the copyright owners. In the latter scenario, radio stations have
been treated as non-infringing because they merely amplify sound that has already been
publicly performed by broadcasters. 136
Even when a radio was used in a commercial environment, the copyright owners’ right
was restricted due to concerns over monopolies. This anxiety had remained essentially
unchanged since the White-Smith case in 1908, when the court decided the extent to
137
which music publishers could control the making of phonograph records. Eventually,
a compulsory licensing mechanism for record manufacturers was introduced to prevent
one manufacturer from gaining a monopoly through exclusive licensing agreements with
138
copyright owners. In the case of broadcasters, the concerns over monopoly arose because
of two collective societies: ASCAP and BMI. These societies had gained exclusive licences
from copyright owners and dominated the market for licensing public performance rights.
To avoid monopoly, in 1940, the Department of Justice filed antitrust actions against both
139
ASCAP and BMI. This resulted in an agreement that allowed (i) members to grant non-
exclusive licences to the collective societies and (ii) putative licensees to request a judicially-
140
determined ‘reasonable fee’ if they were unsatisfied with the societies’ royalty rates.

132 17 U.S.C. § 1(e) (1909).
133 Buck v. Jewell-LaSalle Realty Co, 283 U.S. 191 (1931).
134 Litman, ‘Real Copyright Reform’ (n 1) 22.
135 ‘There is no difference in substance between the case where a hotel engages an orchestra to furnish the music and that where,
by means of the radio set and loud-speakers here employed, it furnished the same music for the same purpose. In each the
music is produced by instrumentalities under its control’. Buck v. Jewell-LaSalle Realty Co, 283 U.S. 191, 201 (1931);
Jerome H. Remick & Co. v. General Electric Co., 16 F.2d 829 (S.D.N.Y. 1926).
136 Buck v. Debaum, 40 F.2d 734 (SD Cal. 1929); Buck v. Duncan, 32 F.2d 366 (W.D. Mo. 1929), rev'd sub nom. Jewell-La Salle
Realty Co., 283 U.S. 191; see also Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Teleprompter
Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)
(rejecting infringement claim for playing radio in small restaurant).
137 See supra notes 125~129 and accompanying text.
138 See supra note 130 and accompanying text.
139 United States v. ASCAP, 1940-43 Trade Cas. ¶56,104 (S.D.N.Y. 1941). United States v. BMI, 1940-1943 Trade Cas. (CCH) ¶
56, 096 (E.D. Wisc. 1941).
140 Ibid.; ‘Since their entry in 1941, the Department has periodically reviewed the operation and effectiveness of the Consent
Decrees. Both Consent Decrees have been amended since their entry. The ASCAP Consent Decree was last amended in 2001
and the BMI Consent Decree was last amended in 1994’. The United States Department of Justice <https://www.justice.gov/
atr/ascap-bmi-decree-review> accessed 14 April 2018.

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