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Publishing your material online

Did you read the last section? So you know that by putting an MP3 on your website you're going to lose your first-recording rights? Happy to continue? Yeah? OK then. Glad you're following this..

OK, you mailed yourself the CD and the lyrics, put the ©2005 Joe Schmoe on the lyrics and now you want to get the world listening to your song. Well fine, but hold on there a tiny minute O Eager One, as we have a problem if you live in the USA. We love the USA, it's where most of us were born, where you can still get bullets easier than carb-free food, and where the laws that the world uses kinda... well.... get ignored. Gotta love home!

Remember what we said earlier about the Library of Congress?
Well in the current system, in order to prosecute for online infringement you MUST have registered your work before publication, as in the online world it's implied that copies can (and are) made the instant you make your website public. To rely on your rights under WIPO to sue another website, or a real-world infringer that took it from a website, is going to cost you more in legal fees than you'll get back in compensation - so unless you pay your $30 to the LOC you might as well forget phoning your lawyer.

Remember we're talking here about music - things that people are LIKELY to steal. Nobody bothers to register the text on their website, they stick on the © notice and rely on the UCC/WIPO rules as nobody is going to try and make commercial gain from stealing your pages. Music, on the other hand, can be worth millions of dollars to people, so you need to consider all music as potential legal cases in the making. Pay your $30 and you can sleep happy. Please.

Now you're going to hate us but it's time to mention the DMCA. This is a collection of amendments to the US laws (title 17 again) to bring them up to date with the Internet. It only applies in the USA, but it does apply to works protected under the WIPO agreement. This means that a French song can be infringed in the USA as France is in the WIPO group, but that an American song copied in France can't be protected by the DMCA - you have to fall back on the older WIPO laws. Got that? Good, cos it's important. DMCA = bad things happening in the US. WIPO = bad things happening anywhere else.

What the DMCA does... and doesn't... do

The Digital Millennium Copyright Act runs to hundreds of pages, but broadly it does two things. It makes it illegal to steal copyrighted material on or from the Internet, and makes it illegal to alter or remove digital identification or protection of copyright. For example, the 'ID3' tag on an MP3 audio file usually contains copyright information. It's illegal in the USA to change or remove that ID3 tag, even if you have legal rights to own or distribute the music itself. It's also illegal to try and get round encryption, streaming or licencing software designed to protect music or video files, even if you have the right to own the music itself. Lastly, and amusingly, the DMCA put in a nice section protecting the design of the hulls of ships over 200ft in length. Why? We guess someone was smoking peyote that day. Anyhoo, back to music.

Here's where your head is going to hurt, and why we get to charge such ludicrous amounts of money to handle these things for people. The DMCA gives you protection of your streamed WMV file and nobody can hack your pay-per-view system... unless they happen to be outside the USA. Even the UCC/BC/WIPO countries don't all have equivalents to the DMCA, and so in a lot of countries making online copies and cracking protection is still perfectly legal. Sure, you can try and get then via the WIPO agreements, but it's going to cost you huge amounts of money and you won't get more than a few cents back in compensation. Kinda makes you think, doesn't it!

This is the reason why the DRM (Digital Rights Management) outfits such as iTunes are based in the USA - they get to sit under the DMCA. They're opening in other countries only as those countries implement DMCA-type laws. You thought Apple just hated the Europeans? No - they hate the Europeans' legal system!

So what should you do? You want to get your work out there for people to listen to, and a website is the best free distribution method for music ever invented. Your problem is you can't control who gets copies, and so you have to accept that copies will end up in non-WIPO countries and so whatever you post on a public website is going to be copied and there's nothing you can do about it. Sure, if a website in Nebraska steals your tune then the DMCA can get them, but if they shove a copy onto a server in a small eastern-bloc state outside WIPO then you're screwed. The solution is one of two options:

1. Publish anyway and just forget about the song being protected
2. Only publish extracts

(1) is the usually route new bands take, and record labels hate it. By putting a full MP3 on their website they screw the future ability of the record label to sell the track on a CD, as there will be millions of potential 'free copies' out there already that they can't control, and the first-recording rights are no more.
(2) is the way sensible people work. Publishing 50,000 copies of the first verse to a song does NOT lose you your first-recording rights to the full track, but allows your fans to hear what you're like, if the new CD will be worth the 15 bucks, and hopefully help you get more of those bucks into your paycheck!