United States: No Dorothy, This Doesn´t Fall Under The Old Copyright Rules

In a blow to the broadcasting industry, a federal circuit court in Pennsylvania has thrown out a challenge against the U.S. Copyright Office, which ruled late last year that radio stations must pay extra royalties to broadcast over the Internet. If the court ruling for National Association of Broadcasters v. Recording Industry Association of America, Inc. stands, the broadcasters must pay additional licensing fees to songwriters, music publishers and record companies. Thus, radio stations that have been employing "webcasts" may now face substantial additional fees to keep doing so.

The Copyright Office, in an earlier decision, kept the broadcasters from airing copyrighted material over the Internet under the existing licenses the broadcasting companies use to broadcast the same material over the "real" airwaves. Earlier this week U.S. District Judge Berle M. Schiller ruled that although it might make sense for Congress to treat Internet broadcasts in the same manner as traditional broadcasts, the law does not specifically call for that. He said the ruling of the U.S. Copyright Office is rational and the courts should defer to it.

"While technology has increased exponentially in the last 20 years, Congress has relied on and vested in the Copyright Office certain powers to cope with the ever-evolving technological landscape,'' Schiller wrote. "It is this interplay between Congress and the Copyright Office which must set the guidelines. As much as possible, courts should be passive players in this quickly changing area.''

The ruling follows in quick succession to several previous decisions that have enhanced artists' interests in digital domains, and correspondingly not allowing agreements or licenses that covered existing technologies to be "stretched" into the new digital technologies. These other rulings, one by an appellate court and the other by the Supreme Court, have dealt with authors' rights in searchable digital archives and in so-called "e-books." In the previous cases, the courts have found that preexisting bundles of rights previously conferred did not transfer over directly into the analogous digital counterparts. "The canvas of copyright law has always changed in the face of new technology" says Davis Gilmer, an intellectual property attorney at Hughes & Luce. "These series of rulings serve notice that the courts are actively addressing and forming the copyright issues in the 21st century tableaux."