Let it be : licensing digital music in Brazil, Mexico, and the United States; a comparative approach
Keywords: Law JSD.

Internet and digital technologies have completely transformed the global music industry, including licensing practices. Long-standing copyright concepts and institutions that enable music markets have also been affected. These changes along with pre-existing "copyright fragmentation" pose important challenges for licensing digital music. Using a qualitative case study approach, this thesis focuses on analyzing the licensing practices for download and interactive streaming used in Brazil and Mexico; two of the most relevant music markets in Latin America. The study further draws on a comparative analysis of the licensing practices in these countries and those in the United States. This kind of comparative approach reveals differences in how stakeholders in each nation have chosen to overcome licensing hurdles. It also illuminates how the role of the government and the regulatory framework in each country impacts efficient licensing. This study identifies several trends in licensing music for download and interactive streaming uses. The first pattern consists of the economic rights that must be cleared to obtain these licenses. For downloads, the mechanical right, comprised of the distribution and reproductions rights, must be cleared. For interactive streaming, both the reproduction and the public performance rights must be licensed. While some differences exist in the local laws regarding these rights, these differences do not impact licensing significantly. The study also establishes that standardized practices for licensing digital music exist in all three countries. Digital music providers (DMPs) who need to obtain a license first clear sound recording rights and then, on a local basis, clear musical works rights. DMPs practices derive from the national processes for licensing digital music. The case studies demonstrated that licenses for downloading activities have a two-step process across the board: clearing mechanical rights for sound recordings and musical works. Nonetheless, licensing interactive streaming offers more variability and additional hurdles. In addition to identifying trends in digital licensing practices, this study also reveals pervasive challenges. These include the lack of an authoritative public database that identifies the rights of every song; the lack of transparency in royalties' distribution; the difficulties of identifying licensors for mechanical licenses; and other issues arising from the fragmentation of copyrights. Depending on the nature of the regulatory framework used in each country, it either enables stakeholders to solve their licensing issues or acts as a barrier to problem-solving. These findings suggest that private actors may be best suited to come up with arrangements to coordinate property and develop solutions to licensing problems. This premise is consistent with existing copyright literature, but further empirical testing is necessary. In this context, this study concludes by suggesting that the role of the government in digital licensing of music should be to encourage private actors to implement solutions to enhance licensing, but some caveats exist. For instance, governmental oversight of collective licensing is important to ensure transparency. Such supervision, however, should not deter the capabilities of stakeholders to innovate and implement solutions that can lead to a more efficient scheme. Further, this research contributes to the comparative intellectual property law literature by providing new insight into how the licensing of digital music compares across jurisdictions in the Americas.