Performance Royalties for Sound Recordings on Terrestrial Radio: A Private Solution to a Public Problem

J.P. Urban · 16 Vand. J. Ent. & Tech. 197

Abstract

US copyright law provides for a digital performance right in sound recordings but does not provide for a performance right in sound recordings when broadcast over terrestrial radio. Proponents of this asymmetry posit that the difference relates to the promotional value of terrestrial radio to record labels, but this rationale has eroded in recent years. The recording industry experienced a drastic decline at the turn of the millennium, and record labels have attempted many creative approaches to bridging the profit gap. Major labels and radio conglomerates of late have begun negotiating private contracts that effectively extend the benefits of a performance right to sound recordings broadcast over terrestrial radio. This Note argues that Congress should allow these private parties to continue experimenting with these agreements. As it stands, the government’s regulation of digital performance of sound recordings is creating negative consequences, and Congress should only intervene in the terrestrial radio arena if a holdout problem arises.