Abstract
Outbreak of war in Europe in 1914 drove thoughts of copyright regulation from the minds of those who had participated in the law reform agitations of the preceding decade. The horrors of the war years, however, hastened the development of copyright law as an instrument regulating the supply and consumption of mass entertainment. The war stimulated the growth of radio communication, and when the wireless burst upon the world in the 1920s, societies tormented by 4 years of catastrophe turned to radio entertainment with unrestrained enthusiasm.
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Notes
- 1.
Guglielmo Marconi patented the wireless telegraphy process in 1896. Wireless telegraphy transmitted Morse code over the airwaves. During the First World War, European and US innovators developed two-way ‘radio telephony’ delivered by vacuum tube. The US Marconi company pioneered multi-point communication and after the end of the War, the Marconi Company in Britain and the United States led the growth of mass radio communication via ‘wireless’ transmitters.
- 2.
Performing right collecting societies’ constitutions usually require that they allocate at least 50 % of revenue collected to artists. However, since societies are usually reluctant to disclose details of income distributions, it is difficult to determine the extent to which the majority of artists are remunerated. Critics remain suspicious that collecting societies collect for big commercial interests—publishers and successful artists—and neglect smaller artists, because administering diffuse rights is time-consuming and sometimes difficult.
- 3.
242 US 591 (1917).
- 4.
For a description of Holmes’s attitudes to the scope and application of copyright law, see Vaidhyanathan (2001). He suggests that Holmes purposely tried to extend the copyright owner’s control to any use, ‘if’—as Holmes stated in Bleistein v. Donaldson Lithograph Co. (1903) USC—‘use means to increase trade and help make money’.
- 5.
The crucial part of Holmes’s reasoning is expressed in the assertion that unauthorized performance might, ‘compete with, and even destroy the success of the monopoly the law intended the plaintiffs to have’. The threat of putative economic competition necessarily implies the existence, or creation, of a market, but Holmes paid no attention to defining that market or, indeed, the meaning of a market. Conventionally defined, a market is the sum of transactions between sellers and buyers of definable goods and services. In Herbert, the economic transactions in question involved the sale and purchase of food in a restaurant. The diner did not negotiate or pay a defined price for the supply of orchestral services. The orchestra provided services ‘for profit’ to the restaurateur. Privity existed between restaurateur and orchestra, not diner and orchestra. Properly speaking, if ‘for profit’ fees were to be extracted from the restaurateur, the appropriate source from which they should be calculated would be the fees paid to the orchestra rather than the total amounts paid by diners. Additionally, Holmes’s allusion to copyright as a monopoly intended to confer benefit (‘success’) suggested legislative intent that copyright secure remuneration in all circumstances. Holmes is thus the author, or popularizer, of copyright’s remuneration fallacy. The legislative justification for the copyright monopoly is not reward but protection against free-riding in order to maintain the incentive to produce. The public performance right did not originate as a copyright but even viewed purely as a remuneration right, it could not be said historically to comprehend the idea of taxing receipts from payments for the supply of services which, nominally at least, were unconnected with the public performance of music.
- 6.
See also Jerome H. Remick & Co. v. American Automobile Accessories Co. 5 F 2d 411 (6th Cir. 1925) and M. Witmark & Sons v. L. Bamberger & Co. 291 F 776 (D.N.J 1923).
- 7.
The exclusive rights permit the copyright holder to bargain for reward—they do not entitle the copyright owner to remuneration.
- 8.
The British Broadcasting Company, later the British Broadcasting Corporation.
- 9.
Music users said the PRS did not publish lists of works it claimed to control and made arbitrary increases in licence fees.
- 10.
The Royal Commission disagreed with the representations of the British Board of Trade and Foreign Office to the House of Commons Copyright Committee concerning treaty obligations. In 1928, thanks largely to the intransigence of the Australian and New Zealand representatives at the Berne Union’s Rome revision conference, delegates agreed that the members could impose conditions on the copyright holder’s exercise of the broadcasting right. As a result, the amended Berne Convention vested in the owner of works control over the broadcasting of those works but allowed member nations to limit that control subject to limitations non-injurious to the moral or economic interests of the copyright holder. The Royal Commission had no doubt that institution of a copyright tribunal, while imposing some limitation on the absolute right of the copyright holder to control the broadcast of musical performances, would constitute the type of condition as permitted by the Convention.
- 11.
A presumption disproved by reality: with the exception of the publishing industry, the history of which is entwined with the development of copyright law, all copyright industries grew and generated large profits without the aid of copyright legal protection. The recording, radio and television broadcasting, and software industries expanded rapidly into powerful economic phenomena before they secured copyright protections. The film industry received limited copyright protection in its infancy but film companies had little need to enforce film copyright before the advent of mass copying technology.
- 12.
In November 2011, Universal Music Group, a subsidiary of Vivendi, bought EMI’s music recording business, and a Sony-led conglomerate its music publishing business.
- 13.
Radio broadcasts of sound recordings became a mainstay of broadcasts after the introduction of public broadcasting in the 1920s and the advent of electrical methods of the recording process. In 1932, Louis Sterling, a native of the USA and director of EMI, instructed the head of EMI’s copyright department to formulate a legal basis for EMI to claim payment for the playing of records by radio broadcasters and to obtain the opinion of the leading copyright lawyer in England in this respect, Stafford Cripps QC (later Labour Party Minister and Chancellor of the Exchequer). Brian Bramall, a young member of EMI’s copyright department (in 1953 he became the first Director General of the International Federation of the Phonographic Industry—IFPI), wrote to Cripps arguing that the grant of copyright in the record in s. 19(1) of the Copyright Act 1911 comprehended the record performing right. Cripps accepted Bramall’s arguments, took the case (Gramophone Co., Ltd. v. Stephen Cawardine & Co. [1934] Ch. 450, Ch.D.) and won. On the basis of the finding in the case (which was never appealed) that the copyright in the record embraced the right to perform the record in public, Phonogram Performance Limited was founded in 1934 to exercise the right (and continues to do so under the provisions of the Copyright Act 1988). We are indebted to Professor Adrian Sterling of Queen Mary College, University of London and former Deputy Director General of IFPI, for this account.
- 14.
RCA v. Whiteman et al. 114 F 2d 86 (1940).
- 15.
At the end of 1935, four publishers and their subsidiaries, supposedly controlling about 40 % of ASCAP’s in-demand repertoire, withdrew from ASCAP and promised to levy performing right fees independently. The four companies were offshoots of Warner Brothers Pictures, a giant movie-making enterprise formed in 1918. Warner Bros founded Warner Bros Records in 1958. Note that performing right societies in the UK and other countries such as Australia also allocated up to half of revenue collected to artists.
- 16.
ASCAP demanded increase in royalty volumes of 300 % in 1932 and 70 % in 1937 (Sterling and Kitross 1990).
- 17.
The effects of the Great Depression, and New Deal politics, may have affected attitudes in the Department of Justice. In the 1930s, the Roosevelt administration seems, in economic affairs, to have concerned itself with amelioration rather than efficiency. Monopoly could be excused on the grounds that it created stability, jobs and revenue.
- 18.
See Gervais (2010) at 321 f. 44.
- 19.
Gibbs v. Buck 307 US 66 (1939) and Buck v. Gallagher 307 US 95 (1939). For a fuller account of the dispute between the NAB and ASCAP, see Wu (2004). The state laws could also be said to be the result of the usurpation of the federal legislature’s constitutional power to make laws regulating commerce.
- 20.
Blanket licensing provided licensees with the right to play any song in the ASCAP repertoire (although stations only played a fraction of total available songs) in return for payment of a fixed percentage of the licensee’s advertising revenue.
- 21.
BMI pioneered the sampling system since adopted by most copyright collecting societies. A comprehensive record or sample of songs broadcast in particular periods supplied a representative snapshot of songs played. Fees were calculated by multiplying per category rates agreed by number of plays of songs. In theory, sampling tied remuneration to actual plays, ensuring accuracy that was absent from the blanket licensing system and preventing overcharging.
- 22.
The decrees empower certain US courts to act as rate-setting tribunals exercising powers similar to those of copyright tribunals in other jurisdictions such as the UK, Canada and Australia.
- 23.
In the form of statutory provision for the compulsory recording licence and species of copyrights in records and films.
- 24.
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, Rome 1961 (Rome Convention).
- 25.
The essential legal reform eventually instituted by most governments involved legislative provision for courts or tribunals to determine, in the parlance of Berne-affiliated nations, ‘equitable remuneration’ for public performances.
- 26.
The US legislature did not recognize the record performing right and by the time of its enactment in Britain’s 1956 Copyright Act, the record and radio industries were making peace. Record companies recognized that broadcasting, far from hurting profits, created sales momentum, turning favoured releases into smash hits and helping the record companies to sell millions of records.
References
Gervais D (ed) (2010) Collective management of copyright and related rights, 2nd edn. Wolters Kluwer, Austin
Sterling CH, Kitross JM (1990) Stay tuned: a concise history of American broadcasting, 2nd edn. Wadsworth C, Belmont
Vaidhyanathan S (2001) Copyrights and copywrongs: the rise of intellectual property and how it threatens creativity. New York University Press, New York
Wu T (2004) Copyright's communications policy. Michigan Law Rev 278: pp. 89
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Atkinson, B., Fitzgerald, B. (2014). 1920–1940: Performing Right and Radio Broadcasting. In: A Short History of Copyright. Springer, Cham. https://doi.org/10.1007/978-3-319-02075-4_8
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