Why Can’t Music be Used in Podcast? Here’s Why.

A couple of years ago, I got an email from a guy who was a fan of my Ongoing History of New Music radio program.

“Hey, dude! Love what you do! I just downloaded 3.2 TB of your show from a torrent so I can listen to them whenever I want. But I noticed that there’s no show on Faith No More. Did you ever do one? If so, can you send it to me?”

*Sigh* Hundreds of shows, created by me over years. Hundreds of shows, owned by Corus Entertainment. And thousands of songs, the rights of which belong to artists, publishers and record labels. Was anyone compensated by Faith No More man? Nope. And therein lies the problem radio broadcasters have with turning their programming into on-demand audio.

I’ve lost track of all the times I’ve been asked “Howcum Ongoing History isn’t a podcast?” The expectation of the online generation is that all information should be available somewhere on demand. We wanted to do it, but concerns and costs over licensing made it impossible to do it legally. But back in February, we made a decision back in February to go ahead with creating Ongoing History podcasts. The compromise is that all the music in each show has been edited down to the barest maximum–which is to say you get mere seconds of each track.

Fortunately, the demand for the stories exceeds the desire for music. Episodes downloads are approaching 200,000 and continue to accellerate. Imagine, then, how things might be if we were allowed to podcast intact radio shows.

So why can’t music be used in podcasts? This article at Amplifi explains everything.

Among the most frequent questions I am asked about podcasting is why music can’t easily be licensed and played. I roll into some general legal mumbo jumbo about mechanical recording fees, publisher rights and other arcane music rights issues.  But enough of that.  Lets talk directly to someone who knows.  David Oxenford is a partner in the Washington law firm Wilkinson, Barker, Knauer, LLP.  David is well known in broadcast circles and has a long history working with media companies on a wide array of issues.  He also represents webcasters and digital media companies on copyright, music licensing and other regulatory issues.

Steve: Why is podcasting different from streaming and what’s blocking podcasters from playing music?

David: The difference is the rights that are involved.  Streaming involves the “public performance right.”  There are organizations in place to collect public performance royalties that cover both the musical compositions and the recorded songs.  For streaming, if you pay ASCAP, BMI and SESAC – and now GMR – you pretty much have the public performance rights to all musical compositions – also called the “musical work” – the words and notes of a song.  If you pay SoundExchange, you get the rights to publicly perform all the recorded songs legally released to the public in the United States.  With the rights to publicly perform the musical compositions and the sound recordings, you have what you need to do an Internet radio-type of streaming operation.

Podcasts, though, are not viewed as public performances.  Instead of transmitting programming like a radio station, a podcast is viewed as a recording of the program – listeners are making copies of the podcast program onto their smartphone or tablet.  Under the Copyright Act, a recording does not involve the public performance right, but instead the right to make “reproductions” of the musical work and the sound recording. As the music is combined in a podcast with words and other sounds in the recording, it also invokes another right of the copyright holder to authorize “synch rights” or “master use rights.”  To get any of these rights, you need to go directly to the copyright holders – usually the publishers for the musical works and the record companies for the sound recording – and negotiate for each song that you want to use.

Keep going.