Yesterday was a busy day for Billy Corgan in Washington. Donning a suit and tie (pictures here), he first went before a House Commitee on the Judiciary for a hearing concerning the Performance Rights Act and then to deliver a letter in support of the controversial Ticketmaster/Live Nation merger. The point of this post is not to discuss the merger, I believe that the other two contributors to tMiM can do a much better job at that than I could. I would prefer to discuss the Performance Rights Act.
This Act’s argument is whether or not to allow performers the same rights that are granted to songwriters as more and more often they are not the same individual. The main argument for the committee to vote down this act is the claim that the promotional value of radio play outweighs the monetary compensation. This argument is broken down into two premises:
1. Major Premise: When large audiences can listen to new music on a try-before-you-buy basis, recording artists and record labels benefit because listeners who like the music may buy albums and concert tickets.
2. Minor Premise: Airplay on broadcast radio exposes large audiences to new music on a try-before-you-buy basis
Conclusion: Therefore, no performance right is warranted because the promotional value of radio airplay compensates recording artists for the performance of their works.
Although there are many ins and outs to this argument, these are the high points. Yes, we could go on all day long about the antiquity of copyright laws, the value of a performance compared to the value of a well written song but I have things to do this afternoon. In short, my point of view on this topic is as follows:
I compare being able to listen to a song on the radio to the little old lady that stands outside the bakery shop at the mall with samples of different kinds of cookies. I’m not going to buy one every time she gives me a sample, just like I’m not going to buy an album every time I hear a song on the radio but there are occasions that I will make a purchase. But, if she wasn’t out there I might never know which baked goods I will like and eventually want to buy.
In a recent study it was shown that 86% of people find out about new artists via the FM airwaves. We all know that radio is struggling, satellite and terrestrial radio alike. Making stations pay for the privilege to expose new bands to a desperate listening audience could be the demise of radio all together. If this act did pass who would determine what songs from what bands were worth? Would a Metallica song be the same cost as a Mumford & Sons song?
Although, the problem with the promotional compensation argument is that it’s completely speculative, there has been no and can be no research done to determine the value of radio play to a performer.
The Progress & Freedom Foundation has a excellent but lengthy argument for the passing of this act.
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Trying to get my arms around this one: meaning if we form a band and write all of our own stuff, we are both songwriter and performer? And as songwriter, we receive a nickel or so every time KBBB airs our track?
But if you write all of my stuff and — as a solo artist — I record it in the studio, you receive a nickel every time K-Blah Blah Blah airs our track, while I do not?
And this law would change all of that?
First let me know if I have my facts right, then I’ll figure out if I have some huge preference one way or the other.
I’m still unclear on some of the items but I am slowly making my way through the article from PFF.org and hope that it will clear a few things up for me. It seems that what they are trying to sell the performers on is that they don’t need to get paid by the radio station because they getting exposure and that exposure makes up for the loss of compensation. But, on the other hand the songwriter is getting paid when the radio plays the song, the performers goes on tour or makes an appearance, which obviously doesn’t make sense. But again this is my assumptions having not read the copyright laws.
The link that I put in for PFF.org has a good quote.
This is Tom Sydnor from the Progress & Freedom Foundation. Thanks for the kind words about the performance-right paper. Let me add a personal note: I used to work for the government, and I represented the United States in copyright-related negotiations with other nations. This quirk of U.S. law (no performance royalties for terrestrial broadcast, aka radio airplay) costs artists real money when their works are played oversees, (I’ve seen estimates of $100M/year).
Almost all other countries do pay recording artists for radio airplay BUT because the U.S. does not, they refuse to pay U.S. recording artists for radio airplay. Even in Free Trade Agreements, when the U.S. usually has enormous negotiating leverage, countries can generally preserve this right of retaliation because it is pefectly fair: they are merely doing to our recording artists in their country what we do to their recording arists in our country. As a result, and given how popular our artists are oversees, the lack of a performance right is, in effect, a decision to reduce the size of our GDP and increase the size of our trade deficit.
By the way, Billy Corgan’s testimony was really good–some of the best that I have seen from a famous recording artist or movie star. He has a future as a spokesperson for artists. –Tom
Tom,
I think what surprises me most is that Congress has mandated a fixed royalty per broadcast. Forget for a moment who receives the royalty: it is fixed. Not a minimum, not a maximum, not an assessment for tax purposes, but fixed. One size fits all, to boot: tracks by Britney, Arcade Fire, or Music for Dead Birds all earn 4c per broadcast, or whatever the sum may be.
Did I hear this correctly?
While we may argue on another day the logic of treating music legally as property, today that is the case. Today, legally speaking, music is property. Meaning all everyday consumption of music counts technically a lease. I’m no expert, but I can think of no other cases where so commonplace a lease is fixed in price by Congress. Does Congress tell you how much to pay for an apartment?
Fred, hi, you raise a fair point about the statutory rate. As my paper indicates, (p. 8 & n.23; p. 12 & n.31), I don’t like this either. But as a practical matter, I think that any right, even one that departs significantly from the ideal, would significantly improve upon the present non-right.
Frankly, I would prefer an exclusive right, and I sympathize with musicians who see a compulsory license as the government telling them what their art is worth—that’s how I see it too. That said, as a practical matter, I see no evidence to suggest that an exclusive right is achievable. Whenever copyrights have been withheld, either deliberately (as here) or by accident (as with mechanical reproductions of musical compositions or cable retransmission of broadcast television) some sort of compulsory license has resulted.
Moreover most other countries use a sort of compulsory licensing to provide a general performance right, and I can think of another example of a U.S. compulsory license in which the rate is set by statute; it’s the mechanical license for musical compositions, see § 115(c)(2). Here again, while I would prefer a different approach (like expanding § 114), something is still better than nothing and that the preferable-in-theory should not obstruct the achievable-in-fact.
At the end of the day, legislation must be enacted to secure a full performance right, and compromise is inherent in that process. Moreover, this is an intended consequence of the legislative process prescribed by the Constitution—compromise would be required even were there no lobbyists or “special interests.” Finally, recall that all Senators and Representatives count local broadcasters among their (valued) constituents.
Consequently, broadcasters will have a lot to say about what rate structure is ultimately implemented, and I would not be surprised if the fixed-in-the-statute approach was adopted because broadcasters have suggested (informally) that this is the approach that they dislike least. For musicians, I think the benefits of compromise are royalties today, and over time, a move toward more market-driven rates, for the reasons noted in note 31 of my paper.
Thanks for the comments, and for saving the copyrights-as-property debate for later. –Tom
This is certainly far more interesting to me than the Miley Cyrus-Radiohead flare-up, but it seems I can’t comment much further before I read the paper. I scanned it quickly and must have gotten the wrong impression altogether. You work for a think tank, so you must literally get that all the time: think tanks aren’t known for printing bumper stickers.
Believe me, I see eleventy bejillion dollars in federal debt, and see voters raising Cain every time our elected officials use the wrong brand of deoderant. I realize that we must work in the civic process we have, not in the one we see in some utopian oil painting. This is to say I would rather discard and replace a bad law instead of reworking it, but I hear you: that isn’t realistic.
I may have more to add when I’ve read it. Very many thanks for your time in and contribution to the blog.