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For Those About to Rock’ Cybersimulcasting Live Music on the Internet

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For Those About to Rock’ Cybersimulcasting Live Music on the Internet position the experience of different and purcliasing details are available at: and tests of the misuse of market power. nations in promoting competition in http YAvww.circit. rmit.edu.au/publics/ 5 Extending across: carrier interconnection; information and communications sectors ipm_book.html service provider and content creator access to distribution channels; and end-user access to to provide some guidance and signposts services. through the policy development maze. 1 Nevertheless, the study does recognise national differences. For example, in Australia, legislation targeted the development of a dual network Published by RMIT University Press in Ross Kelso is Senior Research Fellow infrastructure between 1991-1997 and carriers for the International Research on December 1999, The Information Policy have invested significantly in infrastructure Maze: Global Challenges - National development. Similarly, in the UK, policy has Communication and Information Responses is the result of a three-year supported infrastructure duplication. With the Technologies at RMIT. project conducted by the Centre for announcement of the US National Information Infrastructure agenda in 1993 there was a Dianne Northfteld is a Research Fellmv International Research on Communication coincidence of industry investment in and Information Technologies infrastructure and new services. at CIRCIT at RMIT and the Harvard (“CIRCIT”) at RMIT, Melbourne Information Infrastructure 1 Including regulation of horizontal and vertical Project, Kennedy School of Australia, and the Program on Information agreements between firms; control of mergers Resources Policy (“PIRP”), Harvard and acquisitions; regulation of horizontal and/or Government, Harvard University. University, U.S.A, Further information vertical integration activities of individual firms; [email protected] ‘For Those About to Rock’ Cybersimulcasting Live Music on the Internet Therese Catanzariti offers a lively analysis of the intellectual property issues in cybersimulcasting. ustralia is one of the largest music Regurgitator was supported by Rebecca's Empire, and the music markets in the world. In terms of TISA T composed by the ‘Small Faces ’ in the recorded music, in 1998 the song covered by Billy Bragg. AAustralian retail market accounted for • The You Am I concert at the US$606.7 million, or 1.6% of world sales, Enmore Theatre on 7 August 1998 • Literary works such as the lyrics of making it the ninth largest market in the to promote You Am I’s recent the songs being performed and the world. In terms of live music, a recent album 'No 4 Album’. lyrics of the pre-recorded music and survey revealed that 50% of people any banners or slogans. surveyed in 1998 had watched a live band THE CONTENT (including pub and small venue bands) At the Billy Bragg concert, the in the previous 12 months, and 45% had The Content is made up of a number of literary works included the Woody attended major rock concerts performed different elements - Guthrie lyrics which have been put in stadiums and large venues. to music by Billy Bragg and Wilko and The Content can be split into: which were performed by Billy Bragg, Australia is poised to become a major the lyrics to the Billy Bragg songs player in cybersimulcasts of live music. • Works (literary, dramatic, artistic, performed by Billy Bragg, the lyrics musical works). to the Small Faces song covered by This paper considers the copyright and Billy Bragg, the lyrics to the other legal issues relating to the Content. • Other subject matter (sound recording Rebecca's Empire songs perforated by I will explain the concepts using recent and cinematograph films). Rebecca’s Empire, and the lyrics to Sydney rock concerts as examples, and the songs which were Billy Bragg in particular: • Performances. songs translated into foreign languages and which were played as • The Billy Bragg and the Blokes • Musical works such as the music of 'warm-up ’ music. concert at the Enmore Theatre on the songs being performed and the 11 April 1999 to promote Billy music of the pre recorded music At the Regurgitator concert, the Bragg's most recent album played as “warm-up” or “lights up" literary works included the piece ‘Mermaid Avenue', where Billy music. recited by TJSM 'Why TISM never Bragg was supported by Rebecca s gets groupies \ Empire; At the Billy Bragg concert, the musical works included the music At the Comedy Store, the literary • The Regurgitator concert at composed by Billy Bragg performed works include the live comedy routine Selinas to promote Regurgitator's b v Billy Bragg, the music composed of any comedian, as soon as it is recent album ‘Unit’, where bv Rebecca's Empire performed by recorded in a material form, for Communications Law Bulletin, Vol 19 No 1 2000 Page 15 example when the comedian's mum visual fractal equation images which THE RIGHT TO records the performance on video appeared as a backdrop to the band REPRODUCE WORKS camera. during the performance. In order to encapsulate the Works into Artistic works such as the backdrop, At the Regurgitator concert, the the Media, it will be necessary to secure the sets, any photographs, including cinematograph films included the certain rights from the owners of the promotional photographs which ‘Polyester Girl' film clip which Works. In particular, it will be necessary appear during the cybersimulcast; and appeared as a backdrop during the to secure: any costumes. performance of the song ‘Polyester Girl' by the band. * the right to reproduce the Works, that At the Billy Bragg concert, the artistic is, record the Works; works included the photograph of The Content can be split into: Woody Guthrie which was used to ■ if the Media is a Film, the right to advertise the 'Mermaid Avenue ‘ • works (literary, dramatic, artistic, synchronise the recording of the promotional tour. musical works); Works with the Film. At the Regurgitator concert, the • other subject matter (sound A person needs these rights because artistic works included the TISM recordings and cinematograph copyright includes the exclusive right to costumes. films); and reproduce a literary, dramatic, musical work, or artistic work, and a literary, At the Midnight Oil concert at the • performances. dramatic or musical work is deemed to Tivoli in Cabramatta, the artistic have been reproduced if a sound works included the Tivoli stage which recording or cinematograph film is made appeared as a backdrop to the band THE MEDIUM of the work, and any record embodying during the concert. such a recording and any copy of such a film is deemed to be a reproduction of Dramatic works such as The Content will usually need to be the work. As stated above, a choreography; and any script. encapsulated into a medium, a material cybersimuicast usually requires that form, which can be cybersimulcast to the Works are encapsulated into a medium At the Regurgitator concert, the user. No medium will be involved if the such as a sound recording or a dramatic works included the TISM music is streamed in real time without cinematograph film. dance choreography. being recorded in a material form. However, many cybersimulcasts do not In addition; there may be a reproduction Performances such as performance only involve pure real lime streaming. on the user computer’s RAM during the of the main artists and any support simulcast. artists; performance of any MC/ First, if all users hit on one site and that compere; and performance of any site cybercasts in real time direct to all However, ihere are some exceplions. artists in the pre-recorded music. users, the site may become jammed First, copyright in an artistic work is not because of the traffic. It may be more infringed by the inclusion of the work in At the Billy Bragg concert the efficient to cybercast in real time to one a cinematograph film if its inclusion is performers included Billy Bragg and only incidental to the principal matters site, that site is mirrored, and users hit the Blokes (including the keyboardist represented in the film. The inclusion of on to a number of mirrored sites rather from ‘Small Faces'), and Rebecca s any backdrops, posters and sets at the than the one site, and receive the Empire. concert may be incidental to the principal cybercast from the mirrored site rather matter of the film namely, the At the Whit lams concert at the Metro, than receiving the cybercast in real time performance of the artist(s) at the concert. the performers included Adam direct from the one site. To the extent a Spencer from Triple J Radio who was site is mirrored, the Content is recorded Second, there is a limited exception in the MC for the evening. in a material form. the Act for broadcasters, namely that copyright in a literary, dramatic or Sound recordings such as pre­ Second, the person arranging the musical work is not infringed by recorded sound recordings of ‘lights cybersimulcast may find it difficult to reproducing the work in a film or sound up' and ‘warm up’ music. exploit tile righls to the cybersimuicast if recording if the recording or film is solely the righls are limited to a once only live for the purpose of broadcasting the work. At the Billy Bragg concert, the sound performance. The owner of the site taking This exception will rarely apply as most recordings included Billy Bragg the cybersimuicast will usually require people arranging a cybersimuicast will recordings from 'Workers Playtime ’ that the concert is streamed in real time not be a ‘broadcaster’ that is, the ABC, played before the concert, and Wilko and the concert is available on the site SBS or a person who has a licence under recordings from 'Mermaid Avenue’ for a period after the live performance. the Broadcasting Act 1992 and a played before the concert. To the extent that the owner of the site cybersimuicast may not always fall within the definition of ‘broadcast’ because requires that the concert is archived and Cinematograph films such as film broadcast only covers ‘wireless’ clips and moving images used as available on the site, the person arranging transmission and not, for example, backdrops during the performance.
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