Internet Radio And The Performing Rights Organisations.

The Performing Rights Organisations are organisations like BMI, ASCAP, SESAC and their equivalents in other countries- for instance, APRA in Australia. Every composer owns the Performing Rights in their compositions. The performing rights are the rights to perform songs, either in the live sense or by playing them over the radio from CD. Anyone wanting to perform the songs has to get permission from the rights owner. A radio station wanting to broadcast tunes in theory would have to contact hundreds or thousands of rights holders. The Performing Rights organizations simplify and centralize this process. Rights holders (ie. songwriters) sign up with the Performing Rights organizations, giving them the right to administer their rights on their behalf. The Performing Rights organizations then license the radio stations etc. directly, thus vastly simplifying things for them. In addition, there is a network of reciprocal agreements between Performing Rights organizations in different countries that give them a collective worldwide coverage.

If you set up an internet radio channel and broadcast music, you have two options. Either you can exclusively broadcast music by writers who are not signed with a Performing Rights organizations (that is, independent writers). You will have to negotiate directly with those writers for clearance to broadcast their tracks. (Remember, although they are not signed with a Performing Rights organization they still own the performing rights in their songs.) For an example of this, see here. If you broadcast music that is controlled by Performing Rights organizations, then you will have to be licensed with them or you run the risk of being sued (you will be broadcasting in breach of performing rights). Realistically, you will most likely have to sign up with the Performing Rights organization of the country in which you live or pay taxes ( are "economically resident"). This is because the Performing Rights organizations have essentially divided the world up into spheres of responsibility. Even if the servers you use to broadcast are physically located in another country, the Performing Rights organizations will most likely take the attitude that your location as a legal person is more important.

With Live 365 I believe there is an entirely different situation, which I shall discuss shortly.

Unfortunately Performing Rights organizations in many countries have taken a somewhat unconstructive approach to licensing internet broadcasters. For instance, consider the following situation. We have established an internet channel on Live 365 called Australian Independent Music, which can handle 25 listeners at a time. Live 365 charge us $9.95 US a month ( that's about $120 US a year) for this service, which includes licensing. APRA ( the Australian Performing Rights Association ) charge $450.00 a year to license a hobby-type internet broadcaster in Australia- that's purely for licensing (with no consideration or calculation for how many listeners can tune in). I think the discrepancy is clear. Obviously Live 365s rates are calculated on a sliding scale according to listener numbers, whilst APRA's rates are "one size fits all". With this kind of crude licensing scenario, it's no surprise that there aren't a lot of internet radio channels here in Australia.

However, in fact there are about 30 Live 365 channels with Australian DJs. Live 365 considers the legal situation of non-US Live 365 DJs to be a grey area. However, here is my analysis (note that I have no formal legal expertise whatsoever...)

The powers of the Performing Rights organizations are based purely on their relationships with their writer members. The only rights the Performing Rights organizations have are the rights that their writer members have bestowed upon them. The Performing Rights organizations are not government organizations and have no government mandate. They are not "necessary" in any sense, although in practical terms they are essential, and they do not exist as the direct result of any legislation. In fact, realistically their only real right is the right to sue for infringement on behalf of their writer members. All their powers come from that. They have no rights over any person simply by virtue of nationality. They can't insist on licensing you simply because you live in their country.

Live 365 pays licensing fees on their DJs' behalf to the US Performing Rights organizations. Those organizations have reciprocal agreements with the non-US Performing Rights organizations. When you pay your fees to Live 365, you establish a legal relationship with them, through them with the US Performing Rights organizations, through them with the non-US Performing Rights organizations, and through them with all their writer members, which gives you the right to broadcast their songs. YOU ARE LICENSED! All over the world. And I believe that covers you, fully and completely. The fact that you have not licensed DIRECTLY with your national Performing Rights organization is irrelevant, for the reasons given above. To sue you would be to deny the reciprocal legal relationships which exist between the Performing Rights organizations, and that would essentially put the Performing Rights organizations in the position of suing each other. So, in my ENTIRELY INEXPERT AND IGNORANT opinion, go ahead and set up a Live 365 channel, and don't bother paying your local Performing Rights organizations any extra licensing. You're already licensed through Live 365, you have the right to broadcast, and unless the Performing Rights organizations vary their licensing and reciprocal agreements to exclude this possibility, and tell Live 365 not to deal with non-US citizens, that's the way it will stay.

ALL THE FOREGOING WAS DRAWN UP WITHOUT THE INPUT, ENDORSEMENT OR INVOLVEMENT IN ANY WAY OF LIVE 365 AND MAY WELL CONTRADICT THEIR OWN LEGAL VIEWS AND OPINIONS. I DO NOT MEAN TO IMPLY ANY FORM OF ENDORSEMENT BY LIVE 365 OF MY VIEWS- ON THE CONTRARY LIVE 365 HAVE CONSISTENTLY DECLINED TO EXPRESS OPINIONS ON THIS TOPIC, AND HAVE EMPHASISED THE LACK OF LEGAL CLARITY IN THIS AREA. EVERYTHING EXPRESSED HERE IS PURELY AND SIMPLY MY OWN OPINION AND HAS NEVER BEEN PUT TO ANY LEGAL TEST. FURTHERMORE, I AM BASICALLY A COMPLETE LEGAL IGNORAMUS AND TOTALLY UNQUALIFIED TO EXPRESS ANY OPINION HERE. ANYONE RELYING UPON THE ADVICE GIVEN HERE IS A RECKLESS IDIOT AND WILL PROBABLY GET SUED TILL THEIR LEGS FALL OFF. GAA GAA....WHAT'S A TORT? How's that for a disclaimer?

By the way, I'm an APRA member (as a songwriter).