Would BMI Sue Dentists for Playing Music During Dental Treatments?

Would BMI Sue Dentists for Playing Music During Dental Treatment?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.

Dentists and Dental Labs Subject of New Legislation

Proposed Laws Highlight Importance of Disclosure

Even though there have only yet been official reports of two dental crowns (from Chinese dental labs) tainted with lead, that’s more than enough to make a lot of people very worried. And the relationships between American dental patients, dentists and dental labs are receiving more public attention than ever before.

The National Association of Dental Labs (NADL) has been campaigning the FDA for years to improve its regulation of dental laboratories. Of course the FDA already has regulations for foreign dental labs that export to the United States. But critics point out that inspections are minimal.

In addition, dental prostheses are in an import class of their own. Unlike virtually everything else, the FDA does not regulate the final products themselves, only the materials used in their fabrication. There’s no data on this point, but many worry that unethical labs may not be using the high-quality materials they report using, instead replacing them with less expensive alternatives. And China is already under the microscope for doing just that with other products such as pet food, toothpaste and cough syrup.

One of the issues this current scandal has highlighted is how little American consumers know about what’s in their mouths. Your shirt has a tag telling you it was made in China. The same message is imprinted on your dishes, stamped on your furniture, written on your user’s guide. But your dental crown that was made in China? No one ever tells you that.

Canadian dental patients have to sign an informed consent form before their dentists can give them a dental prosthetic manufactured outside of Canada. American dentists, on the other hand, aren’t even required to tell their patients where their dental bridge or crown was manufactured.

Now, a wave of new legislation has been proposed to help close that gap.

One such bill was recently introduced before the New York State Assembly. “Consumer protection is very important to me,” said Assemblyman Rob Walker, author of the bill. “If the bill is passed and signed by the governor, dentists will have to notify consumers where the actual prosthetic was made.” Dental patients would also be told what materials were used to make it. (Read more)

A similar bill was also introduced in Alabama. The synopsis of The Alabama Consumer Dental Act of 2008 reads as follows:

This bill would require dentists to provide prior written disclosure to their patients if any fixed and/or removable dental prosthetic device or appliance, whether fabricated in part or completely, including, but not limited to, a complete or partial denture, veneer, inlay, onlay, crown, or bridge, is manufactured outside of the United States and to provide that failure to make such a disclosure would be grounds for disciplinary actions.

South Carolina first introduced dental lab legislation a year ago. It focuses not on doctor-to-patient disclosure, but rather lab-to-dentist disclosure. The bill, which is still in committee and has yet to be approved, would:

  • …require a dental laboratory that performs dental technological work outside of this state to employ a person who is registered by the state board of dentistry to authorize such work based on the prescription of a dentist licensed in this state,
  • …require the laboratory to provide information on where the work was performed, and
  • …require the laboratory to provide a list of the materials used in the work.

Similar legislation has been proposed in Florida in response to the lead scare. “This legislation is proactive and helps the state of Florida protect its citizens in light of recent documented cases of lead contamination in dental work coming into the U.S. from foreign countries.” The bill would:

  • …require dental laboratories that operate in Florida to disclose to dentists where a product was manufactured and what materials were used in each restoration, and provide certificates of authenticity if available. (Although, the bill does not address this information going to the patient, under existing patient rights, a patient may request a copy of this information for their records from their dentist.)
  • …require dental labs in Florida have a full-time technician who maintains 18 hours of approved continuing education in dental technology every two years.

Within the next month, we should hear the results of more tests, so we’ll have a better handle on the scope of this potential problem. But regardless of what the research reveals, you can bet that more states will be introducing similar legislation. (It’s already in the works in Michigan, Mississippi, Minnesota, Kansas, and California.)

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