- Isochronous Versus Asynchronous Transmissions
One of the most hotly debated issues concerning the scope of the public performance
right in online contexts is whether, to fall within the copyright owner’s right of public
performance, the “performance” must be accomplished by a transmitted signal that is capable of
immediate conversion to a performance moment-by-moment in time (referred to as an
“isochronous transmission”), or whether it is sufficient that the transmitted signal is sent either
faster or slower (overall or moment-by-moment) than the embodied performance (referred to as
an “asynchronous transmission”).^370
The definition of performing a work publicly in Section 101 of the copyright statute was
drafted at a time when “transmissions” were generally isochronous transmissions, as in
broadcasting. If this definition is read to require an isochronous transmission – and to date all of
the types of transmissions that courts have held to be public performances have been isochronous
transmissions^371 – then many acts of downloading of works on the Internet (being asynchronous
transmissions), even if followed by in-home playback, may not fall within the public
performance right. The issue is far from settled, however, and performing rights societies have
argued to the contrary.^372 The issue is particularly significant for musical works because
different organizations are often responsible for licensing and collecting royalties for public
distribution and public performance of musical works.
Even if an isochronous transmission is required for a public performance, the distinction
between isochronous and asynchronous transmissions becomes highly blurred on the Internet.
Because the Internet is based on packet switching technology, all transmissions through the
Internet are in some sense “asynchronous.” Moreover, through use of buffering in memory or
storage of information on magnetic or optical storage, either at the transmitting or the receiving
end or both, of all or parts of transmitted data, even an asynchronous transmission can effect a
smooth, moment-by-moment performance at the receiving end.
One can argue that the determinative factor of whether a public performance has been
accomplished should be judged from the perspective of what the recipient perceives, not the
transmission technology used (whether isochronous or asynchronous), especially if the
transmitting party controls when and what the recipient sees. For example, the Senate Report
accompanying the Digital Performance Right in Sound Recordings Act of 1995 suggests that
burst transmissions for prompt playback may constitute public performances:
[I]f a transmission system was designed to allow transmission recipients to hear
sound recordings substantially at the time of transmission, but the sound recording
was transmitted in a high-speed burst of data and stored in a computer memory
for prompt playback (such storage being technically the making of a
phonorecord), and the transmission recipient could not retain the phonorecord for(^370) K. Stuckey, Internet and Online Law § 6.08[4][b], at 6-59 – 6-60 (2013).
(^371) Id. at 6-64.
(^372) Id.