By Michael Papish

Sunday, November 10, 2002; Page B02

They leave empty pizza boxes on your lawn, play loud music way past midnight and spill beer on, well, everything, but college kids are also helping to preserve a piece of American culture: the culture of interesting radio.

If we want to help them do that, we’ll need to get college radio back on the Internet. Since last spring, dozens of campus webcasts have been shut down, and more may follow, because of new federal regulations that threaten to bankrupt the small, volunteer-run radio stations that produce them. The shutdowns were premature, and in the end will probably turn out to have been unnecessary. But they illustrate the uncertainty and confusion surrounding the regulations, which were supposed to take effect last month but are now in limbo.

Why the big fuss over campus radio? From a music lover’s point of view, the mainstream American radio landscape is abysmal. Motivated only by profit margins, commercial radio conglomerates have turned our publicly owned airwaves into a bland wasteland. College radio, with its dedication to original and exciting programming, stands in stark contrast. The typical commercial station airs 500 or fewer songs a year, playing them over and over. The station I advise, WHRB-FM at Harvard University, plays 70,000 to 90,000 different songs every year. Some commercial stations no longer even bother to use humans, preferring canned voice-tracks recorded at a central studio and automated algorithms to determine their programming. Campus and small community stations feature live DJs making their own creative programming choices. Commercial radio fears alienating listeners with anything out of the ordinary. WHRB recently featured 178 straight hours of Haydn history and compositions, and four full days of the entire sonic output from the obscure ’60s avant-garde and underground label ESP-Disk.

But while college and community stations have no lack of imagination and enthusiasm, many are handicapped by weak broadcast signals; some of them can be heard over an area of just a few square blocks or only within closed campus networks. To overcome that problem, low-power stations began to broadcast simultaneously over the World Wide Web. WHRB introduced its digital “streaming” in 1999. Like other small webcasters, we saw ourselves as pioneers in an effort to bring back an era of exciting radio by using the Internet to reach new listeners.

Something stands in the way of that revival: the cost and terms of licensing music. FM and AM radio stations pay songwriters for the rights to broadcast their music, but not performing artists or record companies. The record industry looked to fix that inequity in the digital world by lobbying for, and getting, Congress to pass the Digital Millennium Copyright Act in 1998. The DMCA requires webcasters to pay royalties that are distributed to composers, performers and record labels. There’s nothing wrong with paying artists and copyright owners a fair price for their music, but the approved rates will prevent college and nonprofit webcasters from ever reaching more than a handful of listeners, if they choose to continue webcasting at all.

In 2001, a Copyright Arbitration Royalty Panel was convened to set royalty rates. Arbitration began with the Digital Media Association, a trade group representing larger, for-profit webcasters, suggesting a rate of .015 cents per song per listener. The Recording Industry Association of America, representing record labels and artists, countered with a rate 26 times higher: .4 cents per song per listener. Due to the high cost of participating in the arbitration, small nonprofit stations were unable even to have a seat at the table. In June, the government announced the final rates: .02 cents per song per listener for noncommercial stations and .07 cents per song per listener for commercial entities, with an annual minimum fee of $500 for both groups. The fee-setting process had effectively barred college and other small webcasters from participation, and the resulting fees were too high for them.To put those fees in perspective, a college webcaster such as WHRB, with a steady Internet audience averaging six or seven listeners per hour over 24 hours (yes, six or seven — about average for college radio today), would owe $170 a year but pay the $500 annual minimum. However, if WHRB’s Internet audience increases over the next decade to something similar to the audience for its FM signal (approximately 1,000 concurrent listeners on average), the station would owe $26,280 — quite a contrast to the $3,203 per year the station now pays to composers for playing the same songs over the air. In addition, the law required retroactive payments for any webcasting during the four years since the law was passed. The payments were due Oct. 20.

By the time the fee ruling was handed down, many small and suddenly alarmed stations had already begun to stop streaming. Then, beginning this past summer, a hubbub of complaints by disgruntled webcasters, artists and record labels grew in pitch and volume as the Oct. 20 deadline approached. Most of the panic was caused by the size of the four-year bills some webcasters would owe and the fines they might face if they didn’t pay up. Some small, commercial webcasters like Ultimate80s.com, Beethoven.com and radioio.com, with large listenership but limited revenues, faced certain bankruptcy. The RIAA, the industry trade group, came to an agreement with a subset of small, commercial webcasters that became the text of the Small Webcaster Amendment Act and was passed in the House of Representatives on Oct. 7. In plain terms, the SWAA reduces retroactive fees for a class of small webcasters in return for setting dangerously high royalty levels in the future.

None of that has helped college and community radio, and the near passage of the SWAA by the Senate, prevented only by the last-minute heroics of Jesse Helms, acting at the behest of a group of small webcasters operating in North Carolina, certainly would have hurt us.

Instead of fixating on the Oct. 20 deadline, college radio should be worried about the long-term survival of the Internet as an alternative to the conglomerate-controlled airwaves. Contrary to the opinions of many, I believe that the roadblock in our way, the RIAA, shares that goal. Unfortunately, our joint progress stands in the crossfire of the largest intellectual property war to occur in the last 25 years.

In the digital world, the future of music (and intellectual property in general) is cloudy. The record industry is at a confusing crossroads, knowing only one, sure truth: It owns a lot of sound recordings. What no one knows is the future medium or method by which those recordings will be heard. Will CDs become as obsolete as eight-tracks? Will music continue to be produced in an “album” format, or will we see a hybrid emerge, combining elements of both records and radio? With that uncertainty, the RIAA fights for the highest valuation of sound recordings possible.

The battle over webcasting royalties playing out in Congress, courts and conference rooms is one of the initial struggles in a war that could decide the future survival of all companies that own, promote and sell copyrighted materials. In the music world, the stage was set in 1978 by a report published by the Register of Copyrights on performance rights in sound recordings. In that report, a prescient Copyright Office warned that “Congress, in its deliberations on performance rights, should not be unmindful of the possibility that technological developments could well cause substantial changes in existing systems for public delivery of sound recordings. In that event, it is equally possible that a performance right would become the major source of income from, and incentive to, the creation of such works.”

Historically, the United States, unlike many other countries, has not granted copyright owners of sound recordings the right to be paid for the public performance of their music over the radio. What’s occurring now is the first attempt to set the value of those sound recordings on the Internet.

The disappearance of college and community webcasters would be an unfortunate and unwanted side-effect. But even though a future featuring diverse webcasters would be in the RIAA’s best interest, the group is afraid of letting down its guard and allowing the value of its sound recordings to be reduced. Five years from now, if the government were to create a compulsory license for Napster-like services, rates set today for webcasting would form an important precedent.

It’s time to recognize college radio’s unique and pioneering role in establishing the Internet as an incubator for diverse, edgy and creative broadcasting. The government should rework its royalty-setting procedures to give small webcasters a voice. The RIAA needs to stop trying to unfairly link college webcasting with the specter of students illegally downloading free music. And the RIAA should make the enlightened decision to compromise with small, non-profit webcasters in an agreement that will allow Internet radio to flourish for the benefit of both. If each side tries hard to hear the other, they’ll find more in common than they might think.

Michael Papish is technology and policy adviser for WHRB, the undergraduate radio station at Harvard University, and for the Intercollegiate Broadcasting System, a nonprofit organization representing more than 750 educationally affiliated stations. He is co-founder and CEO of MediaUnbound, a software company in Cambridge, Mass.

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