Congress Killed the Radio Star Revisiting the Terrestrial Radio Sound Recording Exemption in 2015

Abstract

For a right to exist under federal copyright law, it must be affirmatively granted in Section 106 of the Copyright Act and fall within the accepted subject matter listed in Section 105. The exclusive right that musicians have in their sound recordings is limited to the right to “perform the copyrighted work publicly by means of a digital audio transmission.” The peculiar wording of “digital audio transmission” exempts radio stations from paying for the right to use the sound recordings that make up all of their music programming.

Congress has tried to end this exemption several times, most recently in a failed attempt to pass the Performance Rights Act (“PRA”) of 2009. Since the failure of the PRA, two developments have further complicated the issue: a private deal by music industry giants—Clear Channel and Warner Music Group—and state copyright law suits over sound recording royalties for pre-1972 recordings. These events further compel the need for a full federal sound recording performance right.

This Note contends that the best way for Congress to finally institute a full performance right is to use the current congressional review of copyright law to eliminate the exemption. As the Copyright Office recently completed a comprehensive review of music licensing law, including this change in an already proposed omnibus music copyright bill presents the perfect opportunity to eliminate the exemption.