The Super Brawl: The History and Future of the Sound Recording Performance Right

On February 4, 2009, Senator Patrick Leahy introduced the “The Performance Rights Act” to the Senate, joined by Representative John Conyers in the House of Representatives. Thirty-eight years after sound recordings were first granted federal copyright protection against unauthorized reproduction and distribution, and more than ten years after gaining a limited digital performance right, legislation is pending that would once again expand the scope of sound recording copyrights to encompass terrestrial radio broadcasts - broadcasts that have historically been exempt from sound recording performance royalties.The fighters in this brawl are sophisticated heavyweights. In one corner of the ring are record labels - an industry in distress, which has consistently struggled to adapt to the digital market. In the other are the broadcasters - a media behemoth whose cries of “promotional compensation” seem increasingly unconvincing in our digital world. Standing on the sidelines are music fans that rely more and more on digital performances, unknowingly thinning record label wallets, and perhaps stalling creativity, in the process.Instead of (or in addition to) seeking remuneration from terrestrial radio stations, this paper suggests that sound recording copyright holders should seek to further expand their digital performance right to permit collection of royalties from websites which regularly perform user-generated audiovisual works. In consideration for an annual blanket fee, these performance-based sites would be secure against DMCA notice-and-takedown proceedings and infringement actions from participating sound recording copyright owners. Such a compromise would permit sound recording copyright holders to receive just compensation for their works performed online, save sites like YouTube millions in administrative and legal fees, and permit users to freely and fairly post sound recordings online.