Music Licensing Rights Hindering Hulu As Well

from the live-by-copyright,-die-by-copyright dept

The main backers of the online video site Hulu, NBC Universal and News Corp., are two of the stronger supporters of our copyright system, and have, at times, been known to push to make it even more stringent in order to "protect" their works. So, it's interesting to see them discovering that draconian copyright rules can come back and bite them as well. We were just covering some of the problems various TV shows have had being put on DVD due to licensing problems, and now it appears those same problems are making it difficult to get some shows up on Hulu -- despite the fact producers would like those shows online.

One of our readers, named Mark, wrote in to let us know that he and his wife had been watching the old TV show The Pretender on Hulu, when they realized that some of the episodes were simply missing (including the entire final season). He wrote to Hulu to ask why, and was told:
"Thank for letting us know that some episodes from The Pretender appear to be missing from our lineup. Individual episodes are sometimes held up due to rights issues, quite often related to music used in the show - and that's the case this time - some of the music in episodes 17 and 18 couldn't be cleared for online streaming. We'll continue to request them from our content partner, but at this time we can't offer them though we'd love to."
It's still difficult to understand why we would ever design copyright law and licensing policy in this manner. After all, having certain songs included in a TV show is never going to hurt the commercial viability of a song.

Filed Under: hulu, licensing
Companies: hulu

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  1. identicon
    Skott Klebe, 28 Jan 2009 @ 10:59am

    It IS a little more complicated than you're making it out to be...

    >I think any reasonable transaction that involves purchasing music to work with a show, it should be clear that any other formats of the show would automatically be included.

    Including unanticipated future markets? Uses that didn't exist at the time of the license? Uses that the licensee doesn't even want?

    I don't know how you expect that kind of license to be priced. The licensee generally tries to purchase as narrow a license as possible that will grant all the permissions needed for the reuse. The licensee doesn't WANT to buy an unlimited license, because it will cost so much more. The producers of the Pretender were able to afford to incorporate the music in their show because they limited the uses they wished to license.
    So why do rightsholders charge more for a do-anything license than they do for a limited use? Because otherwise they foreclose future opportunities for themselves. What you're arguing, in essence, is that rightsholders should sell something like unlimited nonexclusive electronic distribution rights for the same price they would charge for first broadcast, syndication, and DVD today.
    If they did that, the licensees would say, "But I don't WANT to pay for unlimited distribution. I only want broadcast, syndication, DVD, and streaming." Nobody wants to pay for more than they think they will need.
    And so it goes.
    Rights issues are hard, but then, all property issues are hard. I could go on and on about they way the fences in my neighborhood never correspond to the lot lines, and comical issues that result.

    >But it's copyright law that sets it up such that those rights are separated.

    If changing copyright law in the fundamental way that you hint at could address the underlying issues of human carelessness, short-sightedness, and cupidity, I'd be all for it. Shorten the term of copyright? Yeah, I'm for that. Address proportionality of infringment penalties? Yeah, I'm for that, too. Look into antitrust implications in the way that labels deal with artists? I wouldn't be surprised if stuff turns up.
    But divisibility is at the heart not just of copyright, but property law in general. That's not just throwing out the baby with the bathwater, it's also getting a tubal ligation and/or a vasectomy just because the baby's done with the bath.
    Or so people can watch Pretender. Srsly.

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