With advancements in technology, the United States Copyright Office has recognized the need to revise provisions of the Copyright Act. Recently, the Office completed its review of the music licensing regime. Among other recommendations, such as ensuring that music creators are fairly compensated and that the licensing process is efficient, the Copyright Office suggested that artists should have the right to preclude musicians from recording cover versions of their songs and posting them on YouTube and selling them on iTunes. Presently, many indie artists perform and record cover songs in order to showcase their musical talents and build their fan base by playing songs that are recognizable.
Presently, Section 115 of the United States Copyright Act governs compulsory licensing. Per Section 115(a)(2), an individual can make a cover version of a work as long as the individual has obtained a compulsory license. Per Section 115(a)(1), a person may distribute phonorecords of musical works to the public if the person obtains a compulsory license.
In its study, the Copyright Office recommended revising Section 115 to afford songwriters and publishers the right to stop people from posting cover versions of songs on interactive and download sites. Publishers would have the option to negotiate interactive streaming and digital phonorecord delivery (DPD) rights for their song catalogs, which would include the ability to authorize the distribution of cover versions of songs. If a publisher elects to not negotiate interactive streaming and DPD rights for their songs, then a musician who wants to produce a cover version of a song will need to obtain a voluntary license if the musician wants to post the song on a streaming or download site. The Copyright Office maintains that persons should still be able to record cover versions of songs on physical cds and to play covers on broadcast radio and in live concerts.
While these are just recommendations at this time, the Copyright Office’s position demonstrates that it is attempting to balance the rights of musicians seeking to record cover versions and publishers who own the copyrights to popular songs. Nevertheless, many indie musicians may not have the resources necessary to obtain voluntary licenses in order to post their cover versions on streaming sites, which may lead the musicians to receive limited exposure.