Ending the Power to Say No: The Case for Extending Compulsory Licensing to Cover Digital Music Reproduction and Distribution Rights

21 Pages Posted: 14 Oct 2010 Last revised: 12 Apr 2014

See all articles by Patrick McKay

Patrick McKay

Regent University School of Law

Date Written: October 14, 2010

Abstract

If there is one thing the previous decade has taught us about the recording industry, it is that the major record labels never miss an opportunity to miss an opportunity. From their initial failure to embrace Napster in 1999 to the public relations disaster of their failed lawsuit campaign against tens of thousands of online file-sharers, record labels have consistently failed to respond to the wishes of their customers and provide them with a convenient and cost-effective means of acquiring digital music. Over the last ten years, the major record labels have used their exclusive right to control the reproduction and distribution of musical works first as a way to prop up failing business models that proved unsustainable in the digital world of the Internet, then as an anti-competitive strategy to pick favorites among digital music distributors and to impose odious limitations on consumer freedom in the form of digital rights management (DRM). Such behavior will only continue to occur as long as the recording industry relies on a business model of top-down, monopolistic control rather than one that is competitive and driven by meeting consumer demand.

This paper argues that the recording industry has abused its power to deny uses of copyrighted music and has failed to satisfy the constitutional purpose of copyright of providing for the public benefit. As a result, this power should be removed and replaced with a compulsory license system similar to the Section 115 Reform Act of 2006 (SIRA), which would create a blanket collective license covering digital reproduction and distribution rights for musical works. Additionally, in order to remove the cloud of uncertainty which surrounds music used in user-generated videos, Congress should consider extending the compulsory license regime to cover audio-visual synchronization rights for user-generated video on websites such as YouTube.

Keywords: 1978 Copyright Act, DMCA, copyright, intellectual property, compulsory license, music distribution, internet, file-sharing

JEL Classification: O34, O31, K10, K42, H41, L43

Suggested Citation

McKay, Patrick, Ending the Power to Say No: The Case for Extending Compulsory Licensing to Cover Digital Music Reproduction and Distribution Rights (October 14, 2010). Available at SSRN: https://ssrn.com/abstract=1692336 or http://dx.doi.org/10.2139/ssrn.1692336

Patrick McKay (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
293
Abstract Views
2,003
Rank
189,557
PlumX Metrics