Ringtones – public performance?

In 2004 alone, the ringtone and truetone business for cellular telephones involved the download of 70 million songs. This fact naturally has sparked the interest of the Central Office for Collections and Distribution (ECAD), responsible for collecting fees for the public performances of music. It is ECAD’s understanding that ringtones and truetones fall within the concept of public musical performances and, consequently, it charges 5% and 7.5% of the revenues obtained from the ringtones and truetones, respectively.

Nevertheless, according to the Copyright Law (Law no 9.610/98), "public performance" or "communication to the public" is putting work within the reach of the public through any means or procedure that does not consist of distribution of copies. That is, in communication to the public there is no sale of music, just as when one acquires a CD there is no public performance but, rather, distribution.

To charge for a ringtone playing on a personal cell phone in the middle of a mall, for example, would be the same as charging for sounds that escape from headphones in a public place. A cell phone’s ringtone has all of the characteristics of a private performance and to accept the contrary would be to overextend the concept that lawmakers wanted to attribute to the notion.

Nevertheless, the major focus of ECAD is not the aforementioned rationale. It is ECAD’s – rather dangerous – understanding that the mere transmission or sending of a ringtone via the Internet already is sufficient to characterize charging for a public performance.

The danger of such an interpretation resides in the fact that making digital files available that contain musical works for subsequent download over the Internet is the path being followed by the recording industry. This availability and transmission are the same as the sale of a CD and, thus, outside of ECAD’s jurisdiction. The very legal concept of public communication is sufficient to do away with any doubts, since it explicitly excludes "the distribution of copies."

The so-called "Internet radio stations" are not included in this rationale because in these cases, as a rule, they can be heard directly off of a computer, often being the equivalent to a common radio station. In the case of ringtones, there is no possibility of hearing the sounds during the transmission process but, rather, only samples designed to motivate purchases; however, this use is outside of the sphere of copyright protection.

Understanding that the download of ringtones constitutes a public performance is a threat not only to the business model of the cellular telephone carriers but also, mainly, to the recording industry. All expect ECAD to be an instrument of equilibrium for copyrighted and not one that makes business unfeasible.