Two Modest Proposals for Performance Rights
Two Modest Proposals for Performance Rights
Two Modest Proposals for Performance Rights

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    In my last post, I covered some of the worse arguments being made by broadcasters and record labels in the fight over performance rights. In this one, I'd like to address arguments each side should be making, if they were serious about their current positions.

    Proposal 1: for the Broadcasters

    The broadcasters argue that they shouldn't have to pay performers royalties because radio play drives up record sales.

    The record labels say that broadcasters perform the same function as webcasters and satellite radio, who do pay a royalty. Shouldn't there be parity?

    So here's what the broadcasters should be saying: If webcasters and satellite radio perform the same promotional function as terrestrial radio, they shouldn't have to pay the performance royalty either.

    Instead, what we see is traditional broadcasters stuck in the status quo–they accept too readily that they don't have to pay a performace fee, and they simultaneously accept too readily that satellite and webcasters do.

    It's great that the broadcasters support the Internet Radio Equality Act, but even as they do so, there are rumors that they're trying to cut separate deals with SoundExchange that could leave smaller webcasters out to dry. The update to this blog post on Wired indicates that broadcasters were trying to get special treatment for simulcasting–where a traditional broadcaster has a parallel webcasting station.

    In the narrower field of deciding appropriate webcasting rates, traditional broadcasters and webcasters seem to be getting along just fine. But when it comes to a more ambitious rewriting of the copyright law, the broadcasters seem more eager to protect their interests than to ensure sound, consistent, enforceable statutes.

    So why not do both, broadcasters? Do the math, and do it for webcasters and satellite, too. Then, if you feel the same way about the benefits all types of radio have for record sales, you should be able to say with a straight face that the performance royalty need not exist for any.

    Proposal 2: for the Labels

    On the other hand, the RIAA claims to be concerned about the rights of performers and artists. They want additional funds to flow from the broadcasters. But will that money actually reach the artists? Artists who receive no money after recording hit singles lack that money because they are exploited by unscrupulous labels. And an additional source of revenue won't keep bad apple labels from doing this–record contracts can just change to account for the new source of revenue and funnel it to the labels and away from the artists.

    So here's a challenge for the RIAA: if you want to ensure that the performers get compensated for performances, make the performance royalty unassignable. That way, no artists will be deprived of a stream of revenue, no matter how badly they get pressured by an exploitative label. Or at the least, require your member labels to pass the royalties on to the performers. If this is for the artists, and not the labels, that's exactly where the money should go.

    I think that the discussions around the performance right would make a lot more sense if the largest industry players on each side would start from these principled positions. Do these suggestions best represent the political self-interests of the broadcasters and the labels? Maybe not. But then, copyright law isn't intended to benefit industry groups–it's intended to benefit the public.