A Performance Right for Recording Artists: Sound Policy at Home and Abroad

15 Pages Posted: 16 Apr 2008


A performance-right for recording artists would correct a needless exception in U.S. copyright law. In addition the Passage of the Performance Rights Act would harmonize U.S. copyright law with those of other countries, benefiting both U.S. recording artists and the U.S. economy.

Unsuccessful arguments made for lack of performance rights for over-the-air broadcasts: promotional value for the recording artist and the public interest obligations put on broadcast platforms.

Neither argument is persuasive. If one party invests in and creates a resource with value to the public, governments should not let others appropriate that resource for their own commercial gain just by showing that the creator might therefore derive some incidental benefit. While airplay may indeed have some promotional benefit to the recording artist, the recording artist also confers benefits to the radio broadcasters by producing songs that people want to hear. Therefore, one party should not possess property rights while the other does not. Moreover, the artist now has multiple channels to exploit for promotional purposes, bringing to question the actual promotional value of the broadcast medium.

As for the argument that over-the-air broadcasters should be exempt from performance rights because they are saddled with public interest obligations that other platforms are not, such burden of public interest obligations should cause policymakers to re-think broadcast regulation, not punish performers.

Lack of public performance rights puts the U.S. at odds with laws in other countries. As a result, U.S. artists do not receive performance royalties abroad in reciprocation of the failure of the U.S. to compensate foreign artists. The lack of a general public-performance right for sound recordings unquestionably constitutes a net loss to U.S. artists, the U.S. music industry, the U.S. economy, and U.S. credibility as an advocate of reasoned, harmonized, and effect copyright policy.

Keywords: performance right, recording artists, copyright, radio broadcasting, broadcast regulation, songwriters, digital performance, digital millenium, over-the-air, public-interest

JEL Classification: H4, L5, L82, O34, O38

Suggested Citation

Sydnor, Thomas D., A Performance Right for Recording Artists: Sound Policy at Home and Abroad. Progress & Freedom Foundation Progress on Point Paper No. 15.2. Available at SSRN: https://ssrn.com/abstract=1120417 or http://dx.doi.org/10.2139/ssrn.1120417

Thomas D. Sydnor (Contact Author)

affiliation not provided to SSRN ( email )

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