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The Phonorecord Compulsory License Statute and the Unresolved 'Arrangement Privilege'
The Copyright Act of 1976 reflects a balance of the competing interests of copyright holders and those wishing to build on their existing works. As to composers of music, on one hand it secures to copyright holders the exclusive rights of exploitation in the manners prescribed by Sec. 106 ' for example, to make and distribute phonorecords of the composition or provide for its digital delivery online. On the other hand, the Act recognizes that new creation is often rooted in existing works, and therefore allows a new artist to borrow from existing works in appropriate circumstances without fear of being labeled an infringer.
For over a century, one such “carve-out” from the exclusive rights secured to copyright owners has been the compulsory license in and to musical works, codified at 17 U.S.C. Sec. 115. (The terms “statute” and “compulsory license statute” in this article refer exclusively to Sec. 115.) Yet certain of Sec. 115's parameters have never been clearly defined.
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