Cleveland — Classical music programmers are agitato tempestoso after discovering unexpected restrictions on the webcasting of symphonies.
Under a new royalty agreement with the music industry, stations’ quarterly webcast reports must count each movement of a classical work as a separate track. Were it not for a provision in the Digital Millennium Copyright Act of 1998, this would not be much of a problem.
But it is a very big problem. The law forbids webcasters from playing more than three songs or two consecutive tracks from a single album within a three-hour time period. When each of the four movements of Beethoven’s Fifth Symphony is regarded as a separate track, webcasting more than two movements becomes a risky proposition.
Baroque suites, played to the end, would count as five cuts from a single recording, said Nathan Coen of Texas Public Radio, San Antonio. “The whole idea of a symphonic movement being a ‘song’ is so foreign to us,” he said.
Stations that stream all four movements of the entire symphony could be seen as violating the law’s detailed rules — the “performance complement”—and risking the statutory license for streaming given them by Congress.
The playlist data is collected for the recording industry by SoundExchange, which also collects the resulting royalties due to record labels and musicians. Under agreements negotiated this year, CPB pays webstream music royalties on behalf of public radio stations that sign the agreement, though the stations still must report what music they put on the Web.
“If each movement is reported as a single track, what happens when that information gets to SoundExchange?” asked June Fox, station relations director for Development Exchange Inc., in a Sept. 16 session at the PRPD Conference in Cleveland. “When do you get nailed, and by whom?”
“Those are both good questions and I don’t know the answer,” said Phil Johnson, of Public Interactive, who is managing public radio’s reporting system under a contract between PI and CPB.
When Johnson asked SoundExchange to clarify how classical stations should report plays of entire symphonies for their webstream reports, he was told to treat each movement as a separate track. “That’s what they’re telling me and that’s what I have to tell you. It’s my job to tell you what information we need.”
“It’s unbelievable that we’re made to comply with something that’s not based in reality,” said Susan Johnson of WQED-FM in Pittsburgh.
“There’s probably no attorney who’s going to be able to help much with this,” said John Crigler, a communications lawyer who represents many pubradio stations. There haven’t been any direct legal challenges or judicial interpretations of the DMCA, and recording labels haven’t been eager to enforce the performance complement restrictions. “It’s not really clear who would win that game of chicken,” he said.
Crigler thinks there’s solid ground for a First Amendment challenge to the law, but the station that makes it would be taking a big risk.
A more practical approach is to ask the recording labels to waive the restriction for classical works. Jeff Luchsinger, director of radio system investment for CPB, told station reps that he’s willing to try. Since the performance complement is written into the law, SoundExchange and CPB couldn’t have negotiated a waiver as part of the royalty pact.
The National Association of Broadcasters, which negotiated a webcasting pact with much higher royalty rates, worked out separate deals with the recording labels to waive some elements of the performance complement.
“It’s worthwhile to at least explore this with the recording labels, “ Luchsinger said. "We’ll see what we can do, but don’t hold your breath. I’m being pessimistically optimistic.”