A General Public Performance Right for Sound Recordings?

Spotted at The Hollywood Reporter:

Labels, Artists Move for Terrestrial Performance Right
May 09, 2007

By Susan Butler, Billboard

NEW YORK — Record label and artist groups are gearing up to lobby Congress for a performing right over terrestrial radio. Sources said the groups now laying the groundwork for the push are the RIAA, the American Assn. of Independent Music, the Recording Artists Coalition, the Recording Academy, musicians’ and vocalists’ unions AFM and AFTRA, and sound recording performance rights organization SoundExchange. . . . 

The National Assn. of Broadcasters is already gearing up for the fight. Calling any performance right for recordings a “tax” on broadcasters, NAB spokesman Dennis Wharton said there is a great value to record companies and artists through airplay on commercial radio stations. Broadcasters already generate enormous revenue for labels and artists through that airplay.

Now that the Senate and House Judiciary Committees have moved patent reform issues along, sources said that some committee members will begin considering whether it’s now time for U.S. copyright holders and performers to have this right.

It’s difficult to imagine that the fight would or will be over radio performances alone.  Congress could try to define “radio.”  Is there any sense in which that would be a good idea? 

A wonderfully minimalist statutory amendment would be deletion of the phrase “by means of a digital audio transmission” in Section 106(6) of the Copyright Act, and deletion of the phrase “and do not include any right of performance under section 106(4)” in Section 114(a).  The complex provisions of Section 114(d), governing public performance by digital audio transmission, could be left intact.  Voila:  a broad brush public performance right for sound recordings, subject to the existing licensing provisions that govern digital performances.

Not that I think that this would be wise.  In fact, the complex and frustrating licensing world that operators of Internet music services currently inhabit would not change at all, under this minimal hypothetical.  But “traditional” radio broadcasters would be in a world of hurt (unless and until suitable CROs emerged) — not to mention television broadcasters and everyone else who currently operates via clearances obtained from ASCAP, BMI, and SESAC. 

There is a sense in which fairness dictates that all parties who support businesses wholly or partly via recorded music should have to pay to acquire those inputs, not merely digital players, but it’s difficult to see why the solution should be to make the copyright world generally more challenging and complex and expensive, rather than less.  What’s more, a broad sound recording copyright would extend beyond music, and I can’t even imagine right now what kinds of new complexities would follow.

What a marvelously complex place the music business continues to be.