Despairing of Disparities
Despairing of Disparities
Despairing of Disparities

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    Ann Chaitovitz recently published a piece on the Huffington Post arguing for public performance rights for recording artists. Currently, when a song is played on the radio, the songwriter gets paid. The actual singer doesn't.

    This disparity is certainly odd. The songwriter has a copyright in the song as he's written it (the “musical work”); the singer has a copyright in the recording of her singing the song (the “sound recording”). Someone wishing to make copies of the recorded song would have to have the permission of both, since both the performance and the song embodied in that performance are being copied. More to the point, both the songwriter's and the singer's copyrights grant them the same ability to stop unauthorized reproductions.

    But the rights that the law gives to songwriters and to recording artists aren't the same when it comes to public performances. Although songwriters (and authors of literary and dramatic works, among others) can claim compensation for broadcasts of their works, recording artists simply don't have a right to royalties from public performances of their recordings. (Oddly enough, this disparity disappears when the performance takes place via a “digital audio transmission.”)

    The reasons for this disparity stem more from vigorous lobbying over the years by terrestrial broadcasters, than any well-articulated distinction between the rights of performers and the rights of songwriters. Some have said that the promotional value of having the track played over the air compensates for this lack of payment. But then, as Chaitovitz points out, the rationales for this seem fairly thin after a little prodding.

    But all of the discussion above is approaching the issue from the idea that there is a disparity here that needs to be addressed.

    One might say that the disparity is justified. There could be an argument based on the idea that sound recordings are simply not as valuable to the public as musical works. After all, even if commercial performers are not incentivized to pick up their instruments and microphones, the music isn't lost—it's just waiting for someone else to take it up. In other jurisdictions, the rights of performers aren't considered copyrights, but “related rights,” with (slightly) different contours. But this doesn't seem to be the way that we've been treating the copyrights in sound recordings so far. I suspect it'd be hard to find lawmakers willing to believe, or certainly to say aloud, that the contributions of a performer should be less recognized than the contributions of a writer. It's an argument, though certainly less popular, seems more grounded than the promotional one. Besides, the law doesn't distinguish between the creativity necessary to take a photograph and that necessary to make a painting, so wouldn't engaging in that sort of exercise be futile here anyway?

    One might also say that while there's a disparity, it makes no practical difference. Certainly, there's no shortage of talented performers doing so right now, incentivized by royalties from album sales, merchandising profits, and other forms of compensation. But then, perhaps we're simply too content with what we have. Better performers might emerge with a different incentive structure, or (more likely), the performers we have would have better footing for contract negotiations and structures.

    But another, much larger concern with granting a public performance right for sound recordings is how it fits in with the actual goal of copyrights in the first place—incentivizing creation. In copyright law, the government is allowing artists to create monopolies—restraints on commerce and on speech, in exchange for the creation of new works. The ultimate goal of copyright law isn't to pay artists; paying artists is merely the means to the end of bringing more works out to the public.

    If Congress were to amend the copyright law to give recording artists public performance rights, it would be expanding the scope of the monopoly that performers have on their recordings. Would the public receive a fair exchange in value for this, in more or better music?

    It's actually a difficult question, and I think harder to answer “no” to than it might at first appear. Economics, like political science and meteorology, is disadvantaged by lacking controlled laboratory situations for comparisons. But in the end, it comes to a question of who bears the burden of proof—whether recording artists need to show the societal benefits that would emerge from this monopoly grant, or if skeptics need to show why recording artists should be treated differently from songwriters.

    On balance, it seems that if we've accepted the validity of the bargain, and we've not made a particular qualitative distinction between songwriters and performers, then there's no reason that songwriters shouldn't have a performance right.

    This does not mean, though, that parity should be sought for the sake of parity.

    In the UK, there's another disparity between composers and performers, one much-mentioned in recent months: the recording industry is lobbying for extended copyright terms in sound recordings. Currently, UK songwriters generally have a copyright term of life plus 70 years; recording artists have a term of fifty years. There's a movement to extend that fifty-year period to “at least 70 years.”

    As I've said before, I don't think that this extension is justified.

    So how do I reconcile my impulse to fairness with my opposition to this term extension? In the case of performance rights in the US, we have excepted recording artists from a large swath of copyright protection entirely. It's not merely a matter of adjusting the boundaries of that right, as is done with any number of limitations and exceptions. The disparity at issue is in the rights afforded to copyright holders generally.

    But it's one thing to ask whether performers deserve a copyright, and another thing altogether to say they deserve 70 years' worth. There's a long and well-documented debate about copyright terms, but I think that it bears repeating that current copyright terms are entirely too long already.

    That should be especially clear in the UK, where a University of Cambridge economic study commissioned by the comprehensive Gowers review of IP concluded that “a term extension will likely result in a net loss to UK society as a whole.” The study concluded:

    Thus, the case for an extension would have to be especially compelling to make it preferable to keeping term at its current length. This, combined with our conclusion that the case for term extension is, in fact, weak, means it would be particularly inadvisable, given our present state of knowledge, for a rational policy-maker to extend the term of copyright in sound recordings.

    While we might safely assume, as the framers of the constitution did, that authors and inventors deserve IP rights, we need not accept without evidence an arbitrary term of those rights, no matter what they might be for other citizens or other types of artists.

    And with compelling evidence that those terms are already too long, we should certainly not act in direct contradiction of that evidence to extend them.

    But isn't granting a performance right extending the term from 0 to life-plus-70?

    Ideally, no. And hopefully, Congress wouldn't foist over a century's worth of bait-and-switch on the public by making such a term retroactive. But it seems unlikely that legislation would specify a different prospective term than the existing copyright terms we have today.

    Congress should take up the problems caused by punishingly long copyright terms, though that seems unlikely in the current climate. Congress should also take up the rights of performers, and it seems likely that they will at least consider the issue soon. In politics, both practicalities and principle have to be accounted for, and so these issues should each be taken up on their individual merits. In the near term at least, it seems that copyright law bight best be improved in fits and starts, so maybe we shouldn't be holding our breaths for a complete overhaul this session.