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October 4th, 2011 — — The American Supreme Court has refused to hear an appeal by US publishing rights collecting society ASCAP who have been, somewhat optimistically, trying to convince judges that there should be a performance royalty paid on downloads.

As previously reported, just over a year ago a US appeals court backed a lower court ruling that said that, under the definition of ‘performance’ in US copyright law, it is impossible to say a download constitutes a performance. The case began with a squabble between ASCAP and a mobile firm, so specifically focused on ringtones, but the principle applies to all downloads.

Of course, while ASCAP says the ruling is unfair on its members, who won’t get a share of download and ringtone revenues as a result, that’s not strictly true. While a performance royalty is not paid on downloads, a so called mechanical royalty – such as that paid to songwriters and their publishers by record companies when they sell CDs – is due. It’s just that in the US, performance and mechanical royalties are paid via totally separate organisations, the latter handled by bodies like the Harry Fox Agency. So most ASCAP members will be getting their mechanical royalties from another source.

In its appeal to the Supreme Court ASCAP argued that, among other things, refusing to recognise downloads as a performance put the US copyright system out of kilter with other systems elsewhere in the world. But Supreme Court judges refused to review the case, saying they were happy with the appeal court’s ruling that “music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener”.


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