Lyle Lovett was back in Congress recently (but without his Large Band), testifying before the Senate Committee on the Judiciary regarding the scope of copyright’s public performance right for sound recordings. As the law stands now, there is no general public performance right for sound recordings. In lay terms, when a song gets played on the radio, the songwriter gets a royalty; the performer does not.
Lyle, on behalf of the music FIRST Coalition, wants to change that. The rhetorical argument is based partly on a form of unjust enrichment: When radio stations get rich by attracting listeners to popular recordings, they should share the wealth with the artists whose performances attracted the listeners. The argument is based partly on equity: Why should the composers get a royalty, yet the performers get nothing?
Over at Public Knowledge, when this issue (and the music FIRST Coalition) first surfaced last summer, Gigi Sohn blogged a set of sympathetic questions. First, strip away the notion that radio broadcasters are currently somehow “exempt” from a royalty obligation, and strip away the broadcasters’ response that imposing a royalty now would “tax” them and their listeners. Then, turning to the merits, she argues that the equity argument has traction — so long as there’s a mechanism for the performers, rather than the recording companies, to get the money. And the unjust enrichment argument has traction — so long as there’s enough breathing room to allow small and independent broadcasters (and webcasters) to continue to operate profitably. Will both of those things be part of any legislative change? And would any legislative change be prospective, or retrospective as well? Retrospectively adding to copyright’s “bundle of rights” might well be Constitutionally problematic.
If you believe that copyright law is a historically contingent response to material conditions, then the time is surely right to reevaluate the sound recording copyright. The current state of the performance right is an artifact of the confluence of historical conditions — among them, the state of the radio broadcast industry; the state of the music publishing and recording industries; the distinction between the songwriting and performing communities; the notion that radio airplay served primarily to promote sales of the things that generated the revenues that mattered (that is, royalties from copies of sheet music, originally, and records and CDs and now downloads, more recently). All of those things have changed considerably over the last several decades. music FIRST now contends that consumers who listen to terrestrial radio tend to buy less recorded music — rather than more.
I just hope that if this new right gets approved, compensation is arranged in the same way it is done for composers and lyricists. Everybody’s gotta read Terry Fisher’s Promises to Keep…and keep in mind David Nimmer’s work “On the Absurd Complexity of the Digital Audio Transmission Right.”