- The Digital Performance Right – Statutory Licenses Under Section 114
for Certain Nonsubscription and Subscription Services
Section 114 of the copyright statute provides statutory licenses for the performance of
sound recordings publicly by both nonsubscription and subscription digital services, again
provided in each case that such transmissions are “not part of an interactive service.”^3129 Under
Section 114(d)(2), the statutory licenses cover transmissions by the following means:^3130
Subscription Digital Audio Transmissions: by means of subscription digital audio
transmissions that are not exempt under Section 114(d)(1). A “subscription” transmission is “a
transmission that is controlled and limited to particular recipients, and for which consideration is
required to be paid or otherwise given by or on behalf of the recipient to receive the transmission
or a package of transmissions including the transmission.”^3131
All nonexempt digital subscription transmission services are eligible for the statutory
license, provided that they are non-interactive and comply with the terms of the license.
Although the statutory provisions are quite complex, Section 114 generally requires that the
service not violate the “sound recording performance complement,”^3132 not publish in advance a
schedule of the programming to be performed, not cause any receiving device to switch from one
program channel to another, include in each transmission certain identifying information
agreement was available as of May 1, 2005 at http://www.ascap.com/licensing/radio/ORDER.pdf. The license sets
forth the total amount of industry-wide fees that will be collected by ASCAP during each of the applicable years
of the agreement, and allocates each local radio station’s share of the annual license payment in accordance with
a license fee allocation formula set forth in Exhibit B to the license. A copy of the license was available as of
May 1, 2005 at http://www.ascap.com/licensing/radio/RMLC_License.pdf (main body of license) and
http://www.ascap.com/licensing/radio/FeeMethodology.pdf (allocation formula).(^3129) 17 U.S.C. § 114(d)(2)(A)(i).
(^3130) The statutory license was expanded by the Digital Millennium Copyright Act of 1998 (DMCA), Pub. L. No.
105-304, to expressly cover non-exempt eligible non-subscription transmissions and non-exempt transmissions
made by preexisting satellite digital audio radio services. See 17 U.S.C. § 114(f).
(^3131) 17 U.S.C. § 114(j)(14).
(^3132) Section 114(j)(13) provides: “The ‘sound recording performance complement’ is the transmission during any
3-hour period, on a particular channel used by a transmitting entity, of no more than-
(A) 3 different selections of sound recordings from any one phonorecord lawfully distributed for public
performance or sale in the United States, if no more than 2 such selections are transmitted consecutively; or
(B) 4 different selections of sound recordings-
(i) by the same featured recording artist; or
(ii) from any set or compilation of phonorecords lawfully distributed together as a unit for public
performance or sale in the United States,
if no more than three such selections are transmitted consecutively:
Provided, That the transmission of selections in excess of the numerical limits provided for in clauses (A) and
(B) from multiple phonorecords shall nonetheless qualify as a sound recording performance complement if the
programming of the multiple phonorecords was not willfully intended to avoid the numerical limitations
prescribed in such clauses.”