Last week in dental news, the EU’s top court ruled that dentists who have music playing during their surgeries should not pay royalties because they are not broadcasting to the public.
The ruling stems from a case brought against a Turin dentist by an Italian agency that collects music royalties.
They argued that the dentist was violating international agreements by broadcasting the copyright-protected works to the public during oral surgery, and as such were liable to pay royalties to the artists.
The European Court of Justice disagreed, citing that the dentist was not broadcasting music for profit and the audience was limited.
But is the same true for dentists here in the U.S.?
In the U.S. the laws covering music copyright are outlined in the 1976 Copyright Act, the Digital Performance Right in Sound Recordings Act (DPRSR) of 1995, the Digital Millennium Copyright Act (DMCA) of 1999, and the Copyright Term Extension Act containing the Fairness in Music Licensing Act (FMLA) of 1998. There also international agreements covering music under The Berne Convention.
When you play, perform, or record music that you did not create, you are often subject to certain copyright laws.
The few exceptions to copyright law fall under “public domain rights” where the composer has been dead for more than a certain number of years, or the copyright has expired. This is often the case for most classical and traditional music from all around the world.
However, the Fairness in Music Licensing Act of 1998, also known as the “Sony Bono Act,” (of Sony & Cher fame) adjusted the copyright concerning public domain rights to include works published in the U.S. in 1922 or earlier. This law also allowed bars, restaurants, and cafes to play the radio and show television programing in the public domain, but not recorded music. There are also square-footage constraints and limits to the number of speakers used included in this change to public domain use.
Is this confusing or what?
The simplified version is if music or lyrics are created in the U.S. and fall under copyright protection, then a dentist (or anyone) cannot
- make a imitative arrangement for public use in any form
- reproduce the music or lyrics
- perform the music or lyrics in public
- distribute the music or lyrics for free — or for profit
- play a recording of the music or lyrics in public (even if you own the CD or have purchased the song and downloaded it to your computer or phone)
Where does leave you, as U.S. dentist or your patients, want to listen to music during dental treatment?
In the U.S., the dentist performing dental treatment could technically play the radio, listen to the television (would you really want a TV on in the background while performing treatment?) or only play music that falls under the public domain rights as long as he or she is not performing the treatment in front of others or taping it for upload to the Internet for viewing.
The dentist could make a strong argument that listening to personal music from a CD, or iPhone with speakers during surgery does not constitute a public performance because the dental patient is possibly sedated, but would a dentist want to spend the time or the money involved to defend such a position if questioned?
And what if the music from the dentist’s sound system happens to be located in a dental practice location where sound easily travels next door to a space that is occupied by the public and does fall under music copyright restrictions?
These are the murky waters a business owner ventures into when using copyrighted music in a public space, even when that public space may only be occupied by a dentist, some dental staff and a partially or fully anesthetized dental patient.
The three major music rights management companies are BMI, ASCAP, and SESAC and they represent songwriter’s interests and help enforce songwriter’s performance rights. These companies issue public use licensing agreements and monitor businesses to uncover possible copyright infringement of their members’ songs and music.
They are famous for monitoring public spaces and sending cease and desist letters to small business owners.
The best procedure for dentists looking to play music at their dental practice (regardless of the situation) should be to pay licensing rights for copyright-protected music when used, or stick with music limited to use in the public domain.
It’s cheaper than paying an attorney in the future.