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Tuesday, August 4, 2009

Full Performance Rights for Recording Artists Are Still the Right Answer
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The question of whether recording artists should have performance rights as to analog broadcasts is again pending before the U.S. Senate. As a result, I had planned to revise or supplement my 2008 paper on performance rights, A Performance Right for Recording Artists: Sound Policy at Home and Abroad. But as I struggled to do so, I realized that I faced an intractable problem: I had nothing new to say. From every perspective--copyright policy, property-rights policy, technology policy, or raw national self-interest--a performance right for recording artists remained the obviously correct answer.

Granted, my 2008 paper on performance rights is highly imperfect. Indeed, re-reading it was no different than most re-readings of any year-old paper: its adequacies merely failed to offend while every misstep or circumlocution grated like a kneecap on concrete. Fortunately, the arguments for and against a full performance right for recording artists are so lopsided that even an analysis more flawed than mine would have been more than adequate.

The brute facts are painfully simple: enacting a general performance right for recording artists will grow the U.S. economy, reduce the U.S. trade deficit and eliminate or reduce discrimination against digital broadcast technologies. The United States is the world's most successful creator and exporter of popular music. Consequently, other nations annually withhold hundreds of millions of dollars in broadcasting-related performance royalties from U.S. artists because U.S. analog broadcasters fail to pay any performance royalties to foreign artists.

Both sound copyright policy and a due respect for property rights should thus compel the United States to correct this self-destructive gap in U.S. law. Enacting a full performance right for recording artists would immediately grow the U.S. economy and reduce our trade deficit.

Is it politically difficult to achieve this solution that would best serve the public interests of the United States? Absolutely--but only because this otherwise optimal solution would disserve a few private interests that happen to be important to every elected federal legislator. Nevertheless, the right answers are often politically inconvenient. Indeed, that is why we taxpayers expend so much effort trying to ensure that we elect the right people to represent us in Congress.

I agree that absolutely critical and extremely difficult questions can arise when we enquire how we can best reconcile the proven generative potential of copyright protection with the equally obvious generative potential of the Internet. But the question of a full performance right for recording artists is not one of them. It is a public-policy no-brainer that respects the legitimate interests of artists, the legitimate interests of the risk-taking venture capitalists known as "record labels," and the national interests of the United States.

I could say more, but on this issue, I see nothing more worth saying.

posted by Thomas Sydnor @ 10:00 PM | Capitalism , Copyright , Digital TV , IP , Internet , Trade

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