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Legal Eagle

Licensing

Q: Podcasts and radio licenses

Podcasting - publishing sound files on the internet and permitting subscribers to receive audio files directly - has allowed producers to publish their own syndicated radio shows. Shouldn't you need a radio licence to do this?

A: The downloading or copying of sound recordings into a sound file storage and playback device, such as an iPod, will itself, with certain limited exceptions, constitute an infringement of copyright under English law, if done without the consent of the copyright owners and performers, or of a licensing agency/collecting society on their behalf. There are exceptions such as, for example, doing it for educational purposes, or for the purpose of criticism or review, or for club or society use, and matters of that kind.

There also used to be a general exception for private and domestic purposes but the scope of that exception was reduced by regulations made in respect of recordings after the end of October 2003, and is now confined to what is known as "time-shifting", which is described as the making in domestic premises for private and domestic use of a recording or broadcast, solely for the purpose of enabling it to be viewed or listened to at a more convenient time. Whether or not this can be interpreted as meaning listened to just once only, or on as many occasions as the person concerned requires, is a moot point, but taken in the context of the legislation as a whole it is probably restricted to once only.

It should be noted, however, that illegal recording of copyright material for private and domestic use only is notoriously difficult to police, particularly where the recording device itself is not illegitimate, and in most instances it is hardly worth the effort and expense of civil proceedings, which is why so many members of the public who indulge in this practice get away with it. Indeed, one might almost say that the prohibition in this respect is more honoured in the breach than in the observance, although there have been some well-publicised cases against both private individuals and certain large scale, high profile, online music transmission service providers such as Napster - now the name of a legitimate licensed service provider.

Recording and transmission of copyright music to the public without a licence from the recording rights owners and performers concerned, or of a licensing agency/collection society on their behalf, would be illegal under sections 184 and 187 of the Copyright Designs and Patents Act 1988 as amended, which extend to illegal recording of recordings. Making such a service available on the internet to any member of the public who cares to subscribe to it is to be regarded for this purpose as making the service available to the public. Furthermore, section five of the same act stipulates that there is no copyright in a recording which is or to the extent that it is a copy taken from a previous recording, so in your example the provider will not only need a copyright licence for its internet transmission, but will itself have no claim to copyright in the subject of that transmission in so far as relating to previously recorded material.

What I have said above is confined, of course, to English law and activity in the UK, though there has been a great deal of harmonisation of copyright law elsewhere, particularly within the European Union, where it is an ongoing process, and clearly, space does not permit consideration here of the large volume of particular overseas regulatory requirements affecting the subject of your enquiry.

However, it should be borne in mind that it is now not uncommon for a music transmission service provider to obtain from the relevant licensing agencies or collection societies an express right to pass on to its subscribers the right to download and retain sound recordings for future playback subject to specified restrictions, and there have been many millions of legitimate downloads made pursuant to such licences, so you should not assume that any such service which you encounter is necessarily operating illegally. In fact there has been a flood of perfectly legitimate online music library dissemination by encryption and digital rights management (DRM) through the medium of both downloading and streaming (listen but don't copy) services on the internet, which have now even been extended to mobile phone reception.

Collecting societies now routinely make licences available for services of this kind, subject to a very complex and fragmented royalty structure, which has presented a great challenge to the recording industry and is still in course of development, particularly in its international ramifications.

You ask whether a radio licence might be necessary. As to sound broadcasting generally, it is an offence for anyone other than the BBC to provide a broadcasting service in the UK, whether by radio, television or any other means of simultaneous transmission to the public, without a licence from Ofcom (The Office of Communications, set up by the government with special powers contained in the Communications Act 2003).

Ofcom imposes strict regulatory compliance on its licensees, and is believed likely to intervene to prevent any wholesale, overt or illicit broadcasting constituting infringement of copyright, if brought to its attention. However, 'broadcasting' for this purpose does not include internet transmission unless it is (i) simultaneously transmitted by other means or (ii) a concurrent transmission of a live event, such as a concert or (iii) part of a programme service transmitted at scheduled times determined by the broadcaster. A broadcasting licence for internet transmission will therefore only be required in these very limited cases.

First published 7th July 2005