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. the cybersimuicast will need to record the transmission by cable. Concert in a material form. The Content At the You Am I concert, the could be encapsulated as a cinematograph Third, the Australian federal government cinematograph films included the film, a sound recording or as a broadcast. proposes to amend the Act so that

Page 16 Communications Law Bulletin, Vol 19 No 1 2000 copyright in a work is not infringed by The likely owner of the right to reproduce a sound recording is the record label’s making a temporary reproduction of the artistic works will be: record company. However, increasingly, work as part of the technical process of artists themselves are producing their making or receiving a communicalion. • for photographs - the photographer, own recordings and owning the rights in the record label (who may have the sound recordings. This means that you may not need to commissioned the photographer to secure the right to reproduce for a take photographs of the artist/s signed The first owner of copyright in a cybersimuicast to die extent it is real time, to the label and obtained an cinematograph film is the person who or near real time. For example, the assignment of rights from the makes the necessary arrangements for the proposed exception would probably cover photographer), or the promoter of the production of the first copy of the film, the reproduction of the Content on the concert (who may liave commissioned or a person who commissions another user computer’s RAM, and may cover the photographer to take photographs person to make a film for ‘valuable reproduction by the mirrored sites. of the artist/s performing at the consideration’. The likely owner of a film However, you would still need to secure particular concert and obtained an clip used as a backdrop during a concert the right to the extent that the assignment of rights from the will be the record label who has released cybersimuicast will be stored and photographer); the accompanying song; or the venue. archived on the site and available on the site after the concert for a period of time. • for backdrops/sets - the venue or the PERFORMANCE promoter of the concert; and THE OWNER OF A performer does not have any positive THE RIGHT TO • for ‘high-end’ artistic works - legal rights in their performance. REPRODUCE THE WORKS VISCOPY or the artist. However, the performer must consent to the recording of their performance, tlte The likely owner of the rights in the broadcast of their performance, and the The owner of copyright in the Works will dramatic work such as choreography use of the recording of their performance vary with the particular element. The first will be: as part of the sound track of a film. In owner of copyright of a literary, dramatic, addition, performers who are ‘signed’ to musical and artistic works is usually the • promoter of the concert; or a record label are usually required to agree author. However, copyright rarely stays in their contracts that they will not allow with the author. • record label who the artist performing any other person to record any of their the choreographed routine is signed performances. This is to protect the record .The likely owner of the right to reproduce to. label’s investment in the record label’s literary works will be: sound recordings of the performer, and OTHER SUBJECT MATTER ensure its commercially released sound • AMCOS (Australian Mechanical recordings are not in competition from Any pre-recorded music or film clip sound recordings of the performer made Copyright Owners Society) for song which is part of an existing recording or by some one else. Finally, performers who lyrics; cinematograph film may also be have a manager or agent are usually encapsulated on the Media, being the required to agree in their contracts that • music publishing company for song Film, the Sound Recording or the they will not consent to any arrangements lyrics for songs composed by their Broadcast. relating to their professional career except signed artists/composers.; through the manager or agent. This is to The right to make a copy of the sound protect the manager or agent’s investment At the Billy Bragg concert the likely recording or film clip will need to be in the performer’s career and ensure that owner of the reproduction/ secured to allow the recording to be the agent or promoter gets a cut when synchronisation rights in the 'Workers copied on to the Sound Recording or the the performer’breaks through’. Playtime' songs would be Festival sound track of the Film, or the film clip Music and (he likely owner of the included in the Film or Broadcast. This This means consents need to be secured reproduction/svnchronisation righIs is because: consent from the performer, from the in the Mermaid Avenue ' songs would manager or agent, and from the record be Warner/Chappel Music; • copyright in a sound recording label if the performer is signed to a record includes the right to make a copy of label. • the print publisher or CAL (Copyright the sound recording; and Agency Limited) for poems, novels; CYDERCASTING THE and • copyright in a cinematograph film CONTENT THROUGH THE includes the right to make a copy of MEDIA TO THE USER • the comedian for a live comedy the film. routine. The first owner of copyright in a sound In order for the user to receive the Film The likely owner of the right to reproduce recording will be the maker of the sound Sound Recording or Broadcast musical works will be: recording or a person who commissions encapsulating the Content, the Film another person to make the sound Sound Recording or Broadcast must be • AMCOS for songs; and recording for 'valuable consideration’. ’cybersimuicast’ to the user. The reason The maker of the sound recording is the that wc use the phrase ‘cybersimuicast’ • music publishing company for songs owner of the record. This would usually is because the current concepts used in composed by their signed artists/ be the owner of the matrix. Historically, the Copyright Act do not exactly cover composers. the likely owner of the right to reproduce what it is happening.

Communications Law Bulletin, Vol 19 No 1 2000 Page 17 Four points can be noted in particular. rights to use live streaming technology, worked, but luckily, the brand of the Copyright in a literary, dramatic or such as Liquid Audio™ or Real amp was not clear from the pit,) musical work includes the right to Network’s Real System G2™. perform a work in public, broadcast the • alcohol or other drinks that appear on work and cause the work to be transmitted The ‘Mushroom Concert of the stage; T-shirts worn by the artists to subscribers to a diffusion service. Century’, cybersimuicast on the during the concert; and cigarettes Copyright in an artistic work includes the A ddicted to No ise ’ si te was streamed right to include the work in a television using Real Network's streaming * the artist’s repartee during the broadcast or cause a television program technology. performance including the artistic work to be transmitted to subscribers to a diffusion It is important to note that the licences to During the Billy Bragg concert, Billy service, Copyright in a sound recording use tire streaming technology may restrict Bragg discussed East Timor, Serbia, includes the right to cause the recording the ISP to a limited number of feeds. Tins Slobodan Milosevic, NATO and the to be heard in public and to broadcast the is because the technology is still being airstrikes; Hans Eisler, and the bad recording. Copyright in a cinematograph developed, and the sound and visual manners of English tourists). film includes the right to cause the film quality may fall as more users log on. to be seen and heard in public, broadcast CREDIT the film and cause the film to be CLEARANCES transmitted to subscribers to a diffusion Many artists and record labels will be service. keen to get involved in a cybersimuicast As well as the rights in the Content and because of the free publicity and It is not settled and not clear whether a in the Media such as the Film, the Sound promotion rather than because of any fee cybersimuicast is a ‘television program’, Recording or the Broadcast there are that they may be paid. An artist and/or a ‘public performance’, a ‘broadcast’ or other legal risks in arranging a record label may be willing to accept a a ‘transmission to subscribers to a cybersimuicast. First, there is the risk of reduced fee if they are guaranteed a diffusion service’. In some circumstances, defamation. A person can bring an action certain amount of publicity. it may be some of these things, in other for defamation if a statement is capable circumstances it may be none of these of conveying a defamatory meaning, and For this reason it is critical to sort out things. the subject of the defamation can be and confirm what credit each artist and identified from the statement. record label will be entitled to before the This is not as problematic as it first cybersimuicast; and the relative credits Second, there is the risk of .passing off. appears. This is because these rights in of the other artists and performers, that This is a misrepresentation of an elements of the Content'bre often is, the size of credit, type of credit and controlled by the one person. In addition, endorsement or association that does not order of credits. the government has proposed that some in fact exist. of these rights be abolished and a new The types of credits may include:- right introduced. The right to Third, there is the risk of infringing the spoken credit before the start of ‘communicate to the public’ is intended Tobacco Advertising Prohibition Act cybersimuicast; to cover broadcast, transmission by cable 1992 if the cybersimuicast gives publicity as well as making available on line. to or otherwise promotes or is intended • spoken credit before the start of to promote smoking, the purchase or use cybersimuicast; THE RIGHT TO PERFORM IN of a tobacco product or a range of tobacco PUBLIC / BROADCAST / products, the whole or a part of trade • written credit before the start of the TRANSMIT BY CABLE / marks registered in respect of goods cybersimuicast - single frame; ______COMMUNICATE______including tobacco products or the whole or part of the name of a person who is a • written credit before the start of the The likely owner of these rights in the manufacturer of tobacco products or cybersimuicast - rolling credit; literary work will usually be APRA whose name appears on or on the (Australian Performing Right packaging of some or all of those • spoken credit at the end of the Association) for song lyrics; and CAL for products. cybersimuicast; poems, novels. The likely owner of the rights in the musical works that are Fourth, there is the risk of copyright • written credit at the end of the songs will usually be APRA. The likely infringement for miscellaneous bits and cybersimuicast - single frame; owner of the rights in the sound pieces that inadvertently appear on recordings that are commercially screen. • written credit at the end of the released sound recordings produced by cybersimuicast - rolling credit; major record labels will usually be PPC A The high-risk items include: (Phonographic Performance Company of • credit in all advertising/promotion of Australia). ■ the venue (for example, it may not the cybersimuicast on the site; and want to be seen to be associated with THE TECHNOLOGY the gig); • credit in all paid advertising/ promotion of the cybersimuicast in In order to cybersimuicast the Content as • products such as musical equipment any medium. encapsulated in the Film, the Sound such as amps, guitars, drumkits Recording or the Broadcast to the User, Some artists and record labels may certain technology will need to be used. During the Billy Bragg concert, Billy require a credit on the basis that the artist In particular, the ISP will need to secure Bragg complained that his amp ne\>er or record label’s credit is tied to the credit

Page 18 Communications Law Bulletin, Vol 19 No 1 2000 i of other artists or record labels so the Triple J Radio's 'Super Request identities, but become part of a artist or record label receives a credit broadcast throughout Australia on coordinated copyright management whenever a particular artist or record weekday evenings often announce system. For example, the European Union label receives a credit; or any other artist requests from outside Australia, recently funded a project known as the or record label receives a credit. mostly from homesick Australians IMPRIMATUR program which involved tuning in through the ABC website. telecommunications companies; music However, because of the technology industry stakeholders such as glitches of the Internet, a person should This is not as problematic as it sounds. Bertelsmann and the International never guarantee the cybersimuicast of the APRA, AMCOS, PPCA, CAL and Federation of the Phonographic concert will be made, in whole, or in part, VISCOPY have affiliates throughout the Industries; European collecting societies or at all. In particular, all liability for loss world so the local collecting society can such as CISAC (Confederation of opportunity to enhance the reputation co-ordinate the rights. In addition, many Internationale des Societes d’Auteurs et of the artist or record label should be major record labels are multinationals, so Compositeurs); and European libraries expressly excluded for failure to the local office can co-ordinate the rights. and archives such as the British Library undertake the cybersimuicast at all; or and the University of Florence (notably failure to include the performance of the COLLECTING SOCIETIES the Alinari archive of photographs). The artist or the works of the record label in project involved a central clearing house any cybersimuicast. As cybersimulcasting and for the digital use of works. The project cybersimulcasting technology develops was completed at the end of 1998, but EDITS/ADDITIONS/ and matures, the focus will become the the work is being carried forward by Imprimatur Services Limited. DELETIONS relative bargaining position of the different stakeholders in the music The cybersimuicast may be framed by a industry, and in particular the CONCLUSION website, framed by banner advertising, or demarcation between the different A live rock webcast requires forward appear on screen with other advertising. collecting agencies involved in the music planning and effective contract In addition, parts of the concert may need industry. This has been foreshadowed by management to ensure that all rights to be cut because of the risk of infringing the recent dispute in the United States between the Harry Fox Agency which owners and creative contributors a law such as defamation, contempt of collects royalties for the sale of recordings understand the process and are court or obscenity, because of a and ASCAP which collects royalties for comfortable with the way the webcast is technology glitch, or because of the low the broadcast of musical works. The managed and their work is presented. quality of the performance. Thus, it is Harry Fox Agency considers digital necessary to secure the right to add to, distribution as downloads that are no It is hoped that as the webcasting delete from, adapt, change and/or different from getting a physical copy of a technology develops, the various rights otherwise modify the concert and place tape or CD. On the other hand, ASCAP owners will co-ordinate and streamline it in any context during the considers it to be a broadcast. the clearances process to facilitate cybersimuicast, and each contributor effective rights management. should consent to such changes. Alternatively, the various collecting societies could merge. Currently, In the meantime, look out it’s rough and INTERNATIONAL NATURE collecting societies collect for particular mean. It’s a long way to the top if you OFTHE INTERNET rights and particular types of works in wanna rock and roll. particular territories. The various The internet is accessible by any person collecting societies could become super­ who has the necessary equipment, collecting societies, a one-stop worldwide /( copy of this article with footnotes and anywhere in the world. As such, it is clearance house for a number of different diagrams is published in 1999 Media & necessary to secure rights throughout the rights and a number of different types of Arts Law Review Vol 4 No 4. world. It will not be enough to secure the works. However, this could have serious rights for Australia, even though the main anti-trust implications. audience is Australia, the concert may Therese Catanzariti is a Senior only be of interest to Australians, and the Another option would be for the various Associate at the Sydney office of concert is only advertised in Australia. collecting societies to retain their separate Mallesons Stephen Jaques.

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