Public Performance Rights in the Digital Age: Fixing the Licensing Problem

Abstract

As individuals and business owners in the United States use devices to store, organize, and listen to music, they inevitably run up against the boundaries of U.S. copyright law. In general, these laws affect businesses more often than private individuals, who can listen to the latest hit single on their iPod or play music to a large audience in their home without running afoul of copyright law, presuming that the audience is composed of family members and social acquaintances. In contrast, as soon as a business plays music in a public space where strangers might listen, it risks infringing the public performance right granted to rightsholders by copyright law.

This Essay examines how business practices attributable to the rise of digital music conflict with the public performance right that the Copyright Act grants to creators. This Essay begins by examining the ways in which many commercial businesses might violate public performance rights by using digital music players in their establishments, and discusses how the public performance right governs such use. For example, under the Copyright Act, businesses that broadcast a radio station and are relatively small in scale do not infringe the exclusive rights granted to rightsholders; however, a parallel exemption does not exist for music played from a digital music player. Next, the Essay builds on the work of scholars who propose a tax to compensate rightsholders for public performances, rather than using infringement suits or blanket licenses. Finally, this Essay concludes by discussing possible objections to a mandatory tax regime, how a mandatory tax regime might be implemented, and the likelihood of adopting such a regime.

Keywords: copyright, tax, public performance