Page 53 - 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

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the 1978 and 1991 reports. It was not until 1995, when powerful digital transmission
technologies emerged, that a public performance right for sound recordings was seriously
considered by the Congress. This is discussed in Section 2.3.2.
4) The advance of digital audio recording and home copying: The 1992 Audio Home
Recording Act (AHRA)
Audio cassette recording reduced the cost of copying records compared to the earlier
magnetic recording technology. However, the sound quality seriously deteriorated with each
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successive copy. In contrast, digital audio recording technology guaranteed that all copies
in each successive generation would be equally flawless reproductions of the original tapes
149
without any degradation of sound quality. This meant that once a user bought a digital
audio recorder (DAR) and a digital tape, s/he could make unlimited copies of the original
tape and distribute it to others, creating a new distribution channel. Record companies, joined
by composition publishers, lobbied the Congress to extend copyright to digital recording
devices. They wanted to stake a claim in the revenue generated by the new distribution
channel.
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A significant difference between this claim and previous claims was the need to
determine whether the distributor directly used the work. Former distributors, such as
player piano manufacturers, broadcasters and cassette recorder manufacturers, had directly
used copyrighted work such as mechanically reproducing musical compositions, publicly
performing compositions and reproducing sound recordings. Nevertheless, digital
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recording technology democratised the capacity to reproduce copyrighted works from
professional, intermediate distributors to the end users. Hence, the distributors introduced
by the digital recording technology did not directly use the copyrighted works. They merely
provided users with the DAR device through which the users could reproduce the works
themselves. In response, the producer camp brought a contributory infringement against the
DAR manufacturers on the ground that DAR substantially contributed to users’ reproduction
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of sound recordings. As the following account illustrates, contributory infringement claims
have been frequently invoked in the cases where the distributor has not directly used the

147 Subcommittee on Courts, Civil Liberties, and the Administration of Justice, 95 Congress, Performance Rights in Sound
th
Recordings (Committee Print) 20 <https://www.copyright.gov/reports/performance-rights-sound-recordings.pdf> accessed
15 May 2019. Register of Copyrights, ‘ Report on Copyright Implications of Digital Audio Transmission Services’ (1991) 13
Legal Monographs and Treatises 1, 160.
148 Goldstein 129 (n 36).
149 S. Rept. 102-294, at 11(1992).
150 S. Rept. 102-294, at 10(1992).
151 In music copyright, ‘reproduction’ usually refers to the reproduction of works in the same medium. ‘Mechanical reproduction’
refers to the reproduction of sheet music onto CDs, DVDs, records or tapes. BMI Member FAQs, ‘What is the Difference
between Performing Right Royalties, Mechanical Royalties and Sync Royalties?’ <https://www.bmi.com/faq/entry/what_is_
the_difference_between_performing_right_royalties_mechanical_r> accessed 20 June 2019.
152 Jeremy F. Debeer, ‘Locks & Levies’ (2006) 84 Denver University Law Review 143, 159.

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