from the broken-systems dept
But is that breaking the law?
Andy Baio dug into that question and discovered that it's almost impossible to determine that. Now, if you're merely recording a cover song for release, there are compulsory/mechanical license fees you can use. This is why you see cover songs on albums all the time. They're not done with "permission," but rather because someone paid the compulsory rate set by the government. The problem, however, is when you add video to the mix. Once you're talking about a video with music, a second license has to be secured: the sync license. And there are no compulsory rates with sync licenses -- meaning that the copyright holder can (and often does) demand exorbitant fees if they even respond to your request at all.
Now, as Baio notes, Google did sign a deal with the National Music Publishers Association to allow publishers to join a program where they get some money in exchange for allowing their songs to be played by others on YouTube. But no one knows whose publishing rights are actually covered by that agreement, meaning that it's effectively useless.
The end result? It's likely that a rather large number of the cover song videos uploaded each day are infringing -- potentially opening up the uploaders to huge statutory fines for violating copyright law. This is a clear sign of where the law is broken. The law clearly wasn't mean for these kinds of situations, and it's easily fixable. Baio makes the point that here's an easy reform to copyright law that would decriminalize a very common behavior:
The real question: Why is it illegal in the first place?Seems like a simple enough thing to fix... which is why it's unlikely to actually happen.
Cover songs on YouTube are, almost universally, non-commercial in nature. They’re created by fans, mostly amateur musicians, with no negative impact on the market value of the original work. (If anything, it increases demand by acting as a free promotional vehicle for the track.)
The best solution is the hardest one: To reform copyright law to legalize the distribution of free, non-commercial cover songs.
Copyright law was intended to foster creativity by making it safe for creators to exclusively capitalize on their work for a limited period of time. Cover songs on YouTube don’t threaten that ability, and may actually prevent new works by chilling talent that could go on to do great things.