[Ecommerce] Ringtones are digital phonorecord deliveries

[Manon Ress]

NET LAW - Cell phone Ringtones are Digital Phonorecord Deliveries
=09Martha L. Arias, IBLS Director.
Wednesday, November 08, 2006

http://www.ibls.com/internet_law_news_portal_view.aspx?
s=3Dlatestnews&id=3D1602

The Copyright Royalty Board ("the Board") held on October 16th, 2006
that ringtones made available on cellular phones or similar devices
are digital phonorecord deliveries as defined by 17 U.S.C. =A7 115,
irrespective of whether the ringtone is monophonic (one melody
only),  polyphonic (having melody and harmony) or mastertone (digital
sound).

This novel question of law was presented by the Recording Industry
Association of America, Inc. ("RIAA") earlier September this year and
the Board agreed to rule on it given its truly uniqueness.  The Board
considered the following two specific questions of law,

"Does a ringtone, made available for use on a cellular telephone or
similar device, constitute delivery of a digital phonorecord that is
subject to statutory licensing under 17 U.S.C. =A7 115, irrespective of
whether the ringtone is monophonic (having only a single melodic
line), polyphonic (having both melody and harmony), or mastertone (a
digital sound recording or excerpt thereof)?"

"If so, what are the legal conditions and/or limitations on such
statutory licensing"?

After a comprehensive analysis, the Board held that ringtones are
phonorecords and their delivery through cellular and wireless means
qualifies them under the definition of =91digital phonorecord
deliveries ("DPDs").  Thus, 17 U.S.C. =A7 115 applies to ringtones
(monophonic, polyphonic and mastertones) and their authors may apply
for license under section 17 U.S.C. =A7 115(b) (1).

However, whether a specific ringtone actually qualifies for license
shall depend upon whether it is the original work or part thereof, or
a derivative work.  The Board stated that ringtones that are "merely
excerpts or a preexisting sound recording" very well fit under the
ruling of =A7 115.  Yet, those ringtones that include additional
material may be considered derivative works and if so, they would be
outside =A7 115.

The Board further voiced that those ringtones falling under =A7 115 of
the Copyright Act enjoy all the rights, conditions and requirements
of the Act.  Yet for those ringtones outside the scope of =A7115 of the
Act, rights must be acquired through voluntary licenses.

************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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