Transmissions of Music on the Internet: An Analysis of the Copyright Laws of Canada, France, Germany, Japan, the United Kingdom, and the United States

By Gervais, Daniel J. | Vanderbilt Journal of Transnational Law, November 2001 | Go to article overview

Transmissions of Music on the Internet: An Analysis of the Copyright Laws of Canada, France, Germany, Japan, the United Kingdom, and the United States


Gervais, Daniel J., Vanderbilt Journal of Transnational Law


ABSTRACT

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country's national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant nuances that exist among the countries covered. Finally, the Article applies its findings to several real-life examples and details the practical impact of current and future copyright laws on the varying fact patterns.

I. INTRODUCTION

With or without Napster, access to music on the Internet is unavoidable and is likely to become one of the main modes of commercialization of music. (1) In fact, copyright is at a crossroads; it must adapt to the increasing demand for legitimate online access to protected works, especially music, but also materials used for research and distance education, in particular scientific texts. Otherwise, peer-to-peer technology and other forms of online transmission and exchange may sound the death knell of copyright as we know it. (2) The answer will depend in large part on how fast the so-called "content industries" are able to provide business models in tune with the demands of the various user communities. (3) Chances are, copyright will survive. The way in which it is used and administered, however, will need to change. The traditional exclusive rights that prohibit use of protected material seem almost impossible to apply in the Internet age. The exclusive right paradigm is gradually being replaced by a compensation paradigm and the focus is shifting from preventing unauthorized uses to getting paid for "authorized"--and unavoidable--uses. (4) The copyright "concept" is still the best basis to claim financial compensation and organize markets along these lines, two essential tools for most creators, publishers, and producers.

It is highly probable that in a few years radio and television receivers will be permanently connected to the Internet and listeners will be able to pick individual songs from an almost endless catalogue, preselect songs, and program music for special occasions. (5) The extent to which listeners will make temporary or permanent copies of the music on a computer or computer-like device is unclear. Will it make sense to have a permanent, stored copy of music? On a portable player, the answer is probably yes. (6) Will computers with several gigabytes of memory be used to transfer existing collections of compact discs onto a single server? For the operators of broadcasting stations, this type of storage clearly makes sense. (7) Its use and value inside the home is less clear. In other words, the exact business models are still emerging and being formed by old and new players. What is clear, however, is that, sooner or later, the exact legal ramifications of music transmissions on the Internet will need to be clarified.

While some answers are emerging at the national level, it is necessary to understand the legal process in other countries and certainly of all major markets for at least two reasons. First, music transmissions across borders--and several transactions related thereto--may involve more than one set of national laws. (8) Second, if and when international rules are negotiated to deal with this new phenomenon, a better understanding of the differences between national laws will undoubtedly help to bridge existing differences.

This Article will look at the copyright laws of six major markets, and the applicable "directives" of the European Union. …

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