Performance Right Would Harmonize Copyright Policy

A performance-right for recording artists would correct a needless exception in U.S. copyright law, states Tom Sydnor in, "A Performance Right for Recording Artists: Sound Policy at Home and Abroad" (free .pdf file), a Progress on Point released today by The Progress & Freedom Foundation. In addition, Sydnor concludes, 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.

In the paper, Tom Sydnor, Director of the Center for the Study of Digital Property at The Progress & Freedom Foundation, explains that lack performance rights for over-the-air broadcasts is an exception in U.S. copyright law. He counters two often cited arguments for the discrepancy: promotional value for the recording artist and the public interest obligations put on broadcast platforms. Sydnor explains that 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. Sydnor also addresses 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. The author explains that the burden of public interest obligations should cause policymakers to re-think broadcast regulation, not punish performers.

Sydnor states that 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 international implications of the performance-right debate are critical," Sydnor explains. "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."

Sydnor concludes that the enactment of performance rights promote both sound copyright policy and the economic interest of the U.S. "It would also," he explains, "restore its moral authority as a proponent of effective and internationally harmonized protection of all the intellectual property rights that have helped make the United States a uniquely successful producer and exporter of both expression and innovation."