Fairness in Music Licensing Act of 1998 - Research Paper Example

Fairness in Music Licensing Act of 1998 The act was passed after extreme lobbying from the catering and restaurant industry. The act falsely amends section 110(5)(b) of the U.S. Copyright Act. The amendment spares drinking, retail, and eating establishments that are in between 2,000 and 3,750 square feet. However, this depends on the form of premises, from disbursing public performance payments for playing radio and TV broadcasts of music (Parker 96). The s.110(5)(b) contained the ‘homestyle’ exception before the amendment. The law spared mom-and-pop businesses that used domestic amplification equipment from being charged for copyright license fees during the public presentation of broadcast music. Following the amendment of Fairness in Music Licensing Act (FMLA), close to 70% of bars and restaurants and 45% of retailers were spared from copyright licenses. It is crucial to note that the United States law has no provision for payment to performers and record companies for the public airing of sound recordings (Parker 96). McLuggage (9) states that in the 1990s, both owners of commercial institutions and copyright owners were anxious for the Congress to illuminate the exemption of the Copyright Act (particularly the one under 110(5)). The beverage and restaurant associations’ lobbying efforts opened a way for the new amendment, famously known as the Fairness in Music Licensing Act. The 103rd Congress initially proposed the act; however, it passed a number revision stages before its enactment in 1998 by the 105th Congress (McLuggage 9). Despite the fact that the Congress passed the Fairness in Music Licensing Act to advance the 110(5) exemption, most of people thought that the Congress went too far with the exemption (McLuggage 10). As aforementioned, the amendment spares all the businesses measuring less than 2,000ft2 (eliminating space utilized for customer parking only and no other purpose). Non-drinking and non-feed service establishments measuring over 2,000ft2 are spared, but only “if they perform copyrighted works exclusively by audio means, and the performance is communicated by means of a total of not more than 6 loudspeakers” (McLuggage 10). Drinking and food service establishments measuring less than 3,750ft2 in size are also spared. However, establishments beyond 3,750ft2 only qualify for the exemption if not more than six loudspeakers are used (McLuggage 10). The Berne Convention Implementation Act of 1998 makes the United States as of 1989 a member of the Convention of Literary and Artistic Works. The Convention of Literary and Artistic Works is a group of nations that distinguishes the international copyright protection, famously known as the Berne Convention or the Berne Union (Sheldon & Mak 1; United States Copyright Office 2). Currently, more than 79 nations belong to the convention with the exception of the Peoples Republic of China and the Soviet Union. Each country belonging to the convention is needed to implement its own copyright laws on works from other nations. They are also supposed to include particular characteristics in its laws. When joining the convention, the United States used a minimalist approach that maintains the old copyright law in its original states as was thought possible (Sheldon & Mak 1). For the United States to join the Berne Convention, it has to remove the necessity of copyright notice on each copyrighted work. In the minimalist style, the new law allows copyright notice necessities for works that were published after 1st March 1989. In the previous public distribution, the old law that requires copyright notices is still in effect. To determine whether any work published before 1978 and republished before March 1989 remains protected, crucial provisions of the Act of 1909 ought to be consulted (Sheldon & Mak 1). The Berne Convention recommends formal registration requirements before judicial enforcement; therefore, the Copyright Act as amended declares that “for actions for infringement of copyright in Berne Convention works whose country of origin is not the United States registration is not required” (Sheldon & Mak 1). Therefore, any American claimant that wishes to maintain both trade and copyright secret protection can seek to evade the registration necessity and the linked Library of Congress public deposit through the distribution of production in another Berne nation within 30 days of its publication in the United States. This qualifies the production as of foreign source under the new law (Sheldon & Mak 1). In the initial implementation of the Berne Convention, the Congress gave no protection to productions that were within the public domain (Gervais 147). In fact, § 12 of 1988 Act offered that the United States Code (Title 17) as modified by this Act, fails to offer copyright protection for any production within the United States public domain. There were concerns that the Act violated the Convention establishment on retrospective protection of such productions. The United States Congress changed the way when it endorsed the Uruguay Round outcomes because it was aware that the failure to endorse Article 18 would be challenged by the Dispute Settlement Body of the World Trade Organization (Gervais 148). Therefore, the Congress was forced to re-implement the Convention by offering substantial protection to holders of copyright and reestablishing productions that were within the public domain while offering restricted rights to reliance bodies that have been misusing those productions legally without authorization or payment (Gervais 148). One of the most pertinent issues that the Congress deliberated was whether to make the convention (Berne Convention) self-executing that is, automatically operational in the United States (Scott 2-32). If made self-executing, the Congress was left with the work of ratifying the treaty without any further action in making the treaty a portion of the United States law. If not, the Congress would be forced to implement legislation to make the United States law compliant with the treaty. The Congress made a conclusion that the Berne Convention should not be automatically effective in the United States. Therefore, the treaty cannot confer any rights or be applied directly. Only the United States law should confer any rights (Scott 2-32). It is vital to note that the United States has the necessary freedom to enact its Berne obligations in a manner that offers protection to the legitimate interests of users and authors of copyrighted materials (Gervais 163). Works Cited Gervais, Daniel. Golan v. Holder: A Look at the Constraints Imposed by the Berne Convention. Vanderbilt Law Review En Banc 64 (2011): 147-163. Print. McLuggage, Laura, A. Section 110(5) And The Fairness In Music Licensing Act: Will The WTO Decide The United States Must Pay To Play? The Journal of Law and Technology (2000): 1-40. Print. Parker, Nigel. Music Business: Infrastructure, Practice, and Law. London, UK: Sweet & Maxwell, 2004. Print. Scott, Michael, D. Scott on Information Technology Law. New York, NY: Aspen Publishers Online, 2009. Print. Sheldon & Mak. Coping With the Berne Convention. Pasadena, CA: Sheldon Mak Rose & Anderson PC, 1989. Print. United States Copyright Office. International Copyright Relations of the United States. Washington, DC: United States Copyright Office, 2010. Print. Read More