USA / COPYRIGHT / DIGITAL AUDIO TRANSMISSION RIGHT

UCLA Entertainment Law Review, Vol 7 Issue 2, Spring 2000

Ignoring the Public (1): the Absurd Complexity of the DAT Right

David Nimmer

Until recently, US law protected five exclusive rights as part of the scheme for copyright protection: reproduction, adaptation, public distribution, public performance and public display. Then, to correct an anomaly in the law, under which a copyright owner had enjoyed no right to control the public performance of sound recordings, the legislature created a sixth right. That right, unlike the five preceding it, is limited to one type of work in the domain of digital audio transmission. In the author's view, this was a needless complication. The legislature enacted the Digital Performance Right in Sound Recordings Act of 1995 and the Digital Millennium Copyright Act of 1998. "The resulting framework is frightfully complex." The author describes the legislation in detail, drawing special attention to the exemptions from the right, the problems of statutory licences, the use of voluntary licences for interactive services and recordings of sound recording transmissions for business and webcasting. The author concludes that "regardless of the identity of the particular entities whose benefit Congress was serving in the process, it is difficult to imagine that strict considerations of the public interest dictated the laborious scheme of exemptions [and licences]". The article is the first in a series discussing the lack of attention to the fundamental performance right at issue in this domain; the pitfalls of the enacting laws drafted by the very entities to be regulated thereby; and the lack of doctrinal coherence in the basic enterprises undertaken by the 1995 Act. [20039]