Those wondering what type of novel issues of law might arise out of the Copyright Royalty Board's referral to the Register of Copyrights under new Section 803(a) need not wonder any more. In a 34 and a half single page ruling handed down yesterday (available at the Copyright Office website on the left side), the Register of Copyrights tackled the very important commercial question of whether (at least classes) of ringtones are subject to the section 115 compulsory license as digital phonorecord deliveries (known as "dpds"). The question was answered affirmatively. This is an epoch-making decision that bears repeated readings and not just the quick one I did for this posting, and not just for ringtones: one can expect statements made about the derivative right and derivative originality to be cited in diverse contexts. The politics of the dispute are also interesting, given that there is overlap between the RIAA and the NMPA (the combatants in the dispute) in terms of corporate membership of labels and music publishers. Since the amount paid for ringtones may be substantially less than the free market rate, the cost to consumers may go down as to payments to music publishers decrease. I imagine not just RIAA, but celllphone providers are rejoicing.
The Register carefully distinguished between earlier types of ring tones (monophonic, polyphonic) that were mostly synthesized and between more recent types (mastertones) which contain portions of an actual sound recording. She also noted that there are ringtones that are mixes of the original recording and other material; as to these 115 is not available.
The ruling focuses on 10 to 30 second tones. RIAA asserted musical ringtones are dpds subject to 115. Music publishers disputed the claim, arguing among things that ringtones were derivative works, fall outside the 115(a)(2) arrangement privilege, and that they are not distributed for private use. Since I assume that the music publishers would agree that delivery of an entire song as a ringtone (and certainly to a cellphone for playback) would be a dpd, the dispute is rooted in whether 115 covers snippets, including whether snippets implicate the reproduction and distribution right or instead the derivative right. Earlier ringtones would seem to have the strongest claim to involve the derivative right; with mastertones either you think 115 is limited to entire works or you don't.
The one part of the ruling that may have implications beyond ringtones involves the general standards for infringement of the derivative right. I was very happy to see the Register decline to follow the Ninth Circuit's approach in Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988), which held that merely placing art works on ceramic tiles violated the derivative right. I confess however to being somewhat confused by the to-and-fro in yesterday's ruling between the standard for infringement of the derivative right and the standard for originality for constituting a protectible derivative work. Nimmer has long proposed such a relationship: “Unless sufficient of the pre-existing work is contained in the later work so as to constitute the latter an infringement of the former, the latter by definition is not a derivative work.” 2 Nimmer on Copyright § 8.09[A], p. 8-138 (2004)," but I have never understood it.
To me, he is mixing apples and oranges. For example, one could have a protectible derivative work based on public domain material material. Nor do I see how creating such a syllogism actually helps out in practice; to me, it does the opposite by directing courts to a different issue altogether. In the case of ringtones, the issue is not whether the snippet would be protectible on its own, but rather whether 115 covers such uses, an inquiry which centers on whether less than the whole of the work can still be a dpd and whether the arrangement provision in 115(a)(2) is implicated. It is, as the Register noted, a question of statutory intepretation, not one of too-cute rules of thumb. I understand the Register had to address the issue because the parties devoted so much attention to it, but to me it was beside the point.