Page 52 - 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

Similar to the compulsory licence to make phonograph records, the restriction on the
collective management of public performance rights evinced the efforts of the US Congress
to achieve a balance between promoting new technology and incentivising copyright owners.
Record manufacturers, who had stood in the distributor camp in the previous battle
triggered by phonograph record technology, gradually shifted to the producer camp because
their records were being distributed by broadcasters without compensation. However, at
this stage, most record manufacturers did not petition for copyright because broadcasters
provided ‘free advertising’ for records, which stimulated the development of the recording
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industry. Further, magnetic tape required bulky, expensive equipment to record and play.
The difficulty of reproducing magnetic tape secured the record manufacturers’ control over
the distribution of records.
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3) The invention of audio cassette recording and record piracy: The 1971 Sound
Recording Act (SRA)
The record manufacturers’ tolerance of the new technology ended with the invention
of cassette tapes in the 1960s. Unlike magnetic tapes, cassette tapes could be easily
copied through a portable, affordable tape recorder. The sharp decline in the cost of
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copying records quickly led to rampant record piracy. Unauthorised re-recording saved
the cost of hiring performers and manufacturers could avoid the risk of poor sales by
choosing records that had proven performance in the market. In this wave of technology
development, composers and music publishers were more tolerant of the new distributors
(record manufacturers) because they could gain a statutory royalty from every recording
and re-recording company. It was the record manufacturers who were seriously harmed by
record piracy, just as printers had been harmed by unauthorised reprints. Therefore, record
manufacturers who were distributors of sheet music clarified their position as the producers
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of sound recordings and appealed for copyright protection through lawsuits and lobbying.
Their claims were upheld, and the 1971 Sound Recording Act was enacted, recognising
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sound recordings as a new category of copyrightable subject matter.
However, due to lobbying from the broadcaster community, and the ‘free advertising’
effect of broadcasting on sound recordings, the Congress did not accord the right of public
performance to sound recordings in the 1971 Act. Further, it rejected the Copyright
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Office’s recommendation to legislate a sound recording public performance right in both

141 Richard T. Cunniff, ‘The Magnetic Tape Industry’ (1967) 23 Financial Analysts Journal 65, 65.
142 Ibid 68.
143 Ibid.
144 The cases and statutes are summarised in the amicus brief filed by the Recording Industry Association of America in
Goldstein v. California, 412 U.S. 546 (1973). In this case, the Supreme Court upheld the constitutionality of California’s
antipiracy statute. See Banner (n 124) 128 note 38.
145 Sound Recordings Act, Pub. L. No. 92-140, 85 Stat. 39 (Oct. 15, 1971).
146 Matt Jackson, ‘From Broadcast to Webcast: Copyright Law and Streaming Media’ (2002) 11 Texas Intellectual Property Law
Journal 447, 454.

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