On the Radio: Public Performance Rights in Sound Recordings

On the Radio: Public Performance Rights in

Sound Recordings

Updated August 18, 2023

Congressional Research Service

https://crsreports.congress.gov

R47642

Congressional Research Service

SUMMARY

On the Radio: Public Performance Rights in

Sound Recordings

A copyright grants the authors of a creative work certain exclusive rights in their creation. The

scope of copyright in music depends on the type of work at issue and the particular use that is

made of the work. U.S. law has explicitly recognized copyright in musical works (i.e.,

composition of the songwriters and lyricists who write a piece of music) since the early 19

century. Congress also has long recognized an exclusive right of public performance for musical

works. This right means that persons wishing to perform a musical work publicly—for example,

a symphony orchestra, music club, or a radio station—generally must pay royalties to the

composers, songwriters, music publishers, or other owners of the musical-work copyright for that

performance.

In 1971, after decades of legislative efforts, Congress extended copyright to sound recordings (i.e., recorded performance of

a piece of music by musicians and singers). Although the issue was debated, Congress did not provide a public performance

right for sound recordings in the 1970s. In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act

(DPRSRA), which created a new exclusive right to publicly perform sound recordings. DPRSRA limited that right to

performances made “by means of a digital audio transmission.” Because over-the-air transmission by broadcast radio stations

falls outside the definition of “digital audio transmission,” radio stations do not need to pay royalties to the performers,

record labels, or other owners of the sound-recording copyright to publicly perform a sound recording.

Public performances of sound recordings fall into three broad categories—exempt transmissions, noninteractive digital

transmissions, and interactive digital services—based on the means of transmission (broadcast versus internet, satellite, or

cable) and the type of service (interactive versus noninteractive). Exempt transmissions do not require permission from or

payment to the sound-recording copyright holder. Broadcast transmissions by Federal Communications Commission (FCC)-

licensed radio stations, as well as certain transmissions to and within business establishments, are exempt. Noninteractive

digital transmissions (such as the internet service Pandora, the satellite service Sirius XM, and the cable service Stingray

Music) are subject to statutory licensing. These services do not need permission from the copyright holder to perform sound

recordings, provided they pay a royalty rate set by the Copyright Royalty Board (CRB). Interactive digital services (such as

Spotify and Apple Music) allow users to select particular sound recordings to be performed to them specifically. Interactive

services must obtain permission from copyright holders, usually through a negotiated license and royalty rate.

Two pieces of legislation introduced in the 118

Congress focus on public performance rights for sound recordings

transmitted by broadcast radio. The first, a nonbinding resolution known as Supporting the Local Radio Freedom Act (LRFA,

H.Con.Res. 13 and S.Con.Res. 5), would effectively declare support for maintaining the status quo. LRFA would resolve that

Congress should not impose any new performance royalty (or other fee, tax, or charge) for the public performance of sound

recordings by a local radio station via over-the-air broadcast or on any business for such public performance of sound

recordings via an over-the-air broadcast. The second, the American Music Fairness Act (AMFA, H.R. 791 and S. 253),

would expand the public performance right for sound recordings to include any audio transmission, including broadcast radio

transmissions. AMFA would subject performances by radio stations to the statutory license applicable to noninteractive

digital services and place caps on royalties for broadcast stations with annual revenue under $1.5 million in the preceding

year (unless owned by an entity with annual revenue over $10 million).

R47642

August 18, 2023

Kevin J. Hickey

Legislative Attorney

Dana A. Scherer

Specialist in

Telecommunications

Policy

On the Radio: Public Performance Rights in Sound Recordings 
 
Congressional Research Service 
Contents 
Introduction ..................................................................................................................................... 1 
Copyright in Musical Works and Sound Recordings ...................................................................... 2 
The Difference Between Musical Works and Sound Recordings ............................................. 2 
Exclusive Rights of the Copyright Holder for Musical Works Versus Sound 
Recordings ............................................................................................................................. 3 
Historical Development of Copyrights for Music ........................................................................... 4 
Musical Works ........................................................................................................................... 4 
Sound Recordings ..................................................................................................................... 5 
Reproduction and Distribution ............................................................................................ 5 
Public Performances ........................................................................................................... 6 
Ephemeral Recordings .............................................................................................................. 7 
Current Law Governing Public Performance of Sound Recordings ............................................... 8 
Exempt Transmissions .............................................................................................................. 9 
Nonexempt Transmissions ........................................................................................................ 9 
Interactive Services: Marketplace Negotiations ................................................................. 9 
Noninteractive Services: Statutory Licensing ................................................................... 10 
Ephemeral Recordings ............................................................................................................ 10 
Technological, Legislative, and Industry Developments: Effects on Recording Industry 
Revenues ..................................................................................................................................... 11 
Royalties for Statutory Licenses .................................................................................................... 12 
Rates for Noninteractive Services/Webcasters ........................................................................ 13 
Rates for Services Transmitting to Business Establishments .................................................. 14 
Legislation Introduced in the 118
th
 Congress ................................................................................ 14 
Supporting the Local Radio Freedom Act ............................................................................... 14 
American Music Fairness Act ................................................................................................. 15 
Policy Considerations .................................................................................................................... 17 
Potential Impact of AMFA on Radio Stations ......................................................................... 17 
Potential Impact on Broadcast Radio Newsroom Investment........................................... 17 
Potential Impact on Religious Radio Broadcasters ........................................................... 18 
Potential Impact on Business Establishments ......................................................................... 18 
Role of Broadcast Radio in Promoting Songs and Driving Record Industry Revenues ......... 19 
 
Figures 
Figure 1. Sound Recording Licensing Royalties from Noninteractive Services ............................ 11 
Figure 2. Recording Industry Revenue Trends .............................................................................. 12 
  
Appendixes 
Appendix A. Glossary ................................................................................................................... 21 
Appendix B. Chronology............................................................................................................... 26 
 

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service

Contacts

Author Information ........................................................................................................................ 27

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 1

Introduction

creations.

These rights can vary by the type of work at issue and its use. The public performance

right for sound recordings—a type of copyrightable work that protects the creativity of the

singers, musicians, and other performers that record a piece of music (collectively, performing

artists)—is an example.

Congress did not recognize any right of public performance for sound

recordings until 1995.

This right is limited to performances “by means of a digital audio

transmission.”

As a practical matter, this limitation means that entities (such as radio stations)

transmitting sound recordings via over-the-air broadcast do not need to pay royalties to

performing artists.

In contrast, entities making digital transmissions (e.g., streaming music

services and online radio stations, including simulcasts) generally must pay such royalties.

Whether to maintain this distinction or change it has been a long-standing area of congressional

debate. Supporting the Local Radio Freedom Act (LRFA)—H.Con.Res. 13 and S.Con.Res. 5 in

the 118

Congress—is a concurrent resolution that would effectively support the status quo on

public performance rights for sound recordings. LRFA would resolve that Congress is not to

impose any new performance royalty (or other fee, tax, or charge) for the public performance of

sound recordings by a radio station via over-the-air broadcast or by any business for such public

performance of sound recordings.

Resolutions similar to LRFA were introduced in past

Congresses.

In contrast, the American Music Fairness Act (AMFA)—H.R. 791 and S. 253 in the 118

Congress—would extend performance rights in sound recordings to broadcast radio

transmissions. In other words, AMFA would require broadcast radio stations to pay copyright

royalties to performing artists, record labels, and other sound-recording copyright owners for the

right to transmit music over the air.

While broadcast transmissions would generally be subject to

statutory royalty rate, the amount that radio stations pay would be capped based on the amount of

annual revenue the stations and their parent organizations generate.

Bills similar to AMFA were

also introduced in past Congresses.

See 17 U.S.C. § 106.

Compare id. § 106(4) (public performance rights for musical and other works) with § 106(6) (limited public

performance right for sound recordings).

See Digital Performance Right in Sound Recordings Act of 1995, P.L. 104-39, 109 Stat. 336 (codified as amended at

17 U.S.C. §§ 106(2), 114(d)–(j)).

See 17 U.S.C. § 106(6).

A “royalty” is a compensation to the owner of intellectual property for the right to use the work, often paid per copy

made or sold. Royalty, BLACK’S LAW DICTIONARY (11

ed. 2009).

H.Con.Res. 13, 118

Cong. (2023); S.Con.Res. 5, 118

Cong. (2023).

Similar concurrent resolutions introduced in previous Congresses, all named the “Local Radio Freedom Act,” include

the following: H.Con.Res. 33 and S.Con.Res. 9, 117

Cong. (2021); H.Con.Res. 20 and S.Con.Res. 5, 116

Cong.

(2019); H.Con.Res. 13 and S.Con.Res. 6, 115

Cong. (2017); H.Con.Res. 17 and S.Con.Res. 4, 114

Cong. (2015);

H.Con.Res. 16 and S.Con.Res. 6, 113

Cong. (2013); H.Con.Res. 21 and S.Con.Res. 7, 112

Cong. (2011);

H.Con.Res. 49 and S.Con.Res. 82, 111

Cong. (2009); H.Con.Res. 244 and, S.Con.Res. 82, 110

Cong. (2007).

See H.R. 791, § 2, 118

Cong. (2023); S. 253, § 2, 118

Cong. (2023).

H.R. 791, §§ 2(b), 4; S. 253, §§ 2(b), 4.

Similar bills introduced in previous Congresses include the following: American Music Fairness Act (AMFA) of

2022, H.R. 4130 and S. 4932, 117

Cong. (2022); Ask Musicians For Music Act of 2019, H.R. 5219 and S. 2932, 116

Cong. (2019); Fair Play Fair Pay Act of 2017, H.R. 1836, 115

Cong. (2017); Fair Play Fair Pay Act of 2015, H.R.

(continued...)

On the Radio: Public Performance Rights in Sound Recordings

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This report explains how U.S. copyright law currently protects sound recordings. It reviews the

history of exclusive rights that apply to certain digital public performances of sound recordings

and ephemeral copies of sound recordings. In addition, this report discusses past legislative

efforts around extending those public performance rights to broadcasters, business

establishments, and services transmitting to business establishments and the varying treatment of

ephemeral recording rights. It also discusses how these complex copyrights work in practice; that

is, how royalties are typically paid for various uses of sound recordings and to whom. This report

also examines LRFA and contrasts it with AMFA. Finally, the report analyzes the policy

implications of expanding copyright in sound recordings to include over-the-air broadcast radio

transmissions, including how AMFA—if enacted—might affect radio stations.

The Difference Between Musical Works and Sound Recordings

The first type, a musical work, covers the musical composition itself—for example, the melody of

a song and any accompanying lyrics.

The author—the initial copyright owner of a musical

work—is typically the composer(s), lyricist(s), or songwriter (collectively, songwriters.)

many cases, songwriters assign their musical-work copyrights to a music publisher.

Copies of a

musical work—the physical objects in which the work is “fixed” (i.e., recorded in some medium

for later perception)—may take the form of a digital or analog recording, a musical score, or a

written lyric sheet.

The second type of copyrightable work relating to music is a sound recording, which covers the

recorded performance of a musical work.

The author—the initial copyright owner of a sound

recording—is typically the performing artists who made a recording of a piece of music (e.g., the

singers, musicians, producers, or engineers). Copies of a sound recording—the physical objects in

which a sound recording is fixed, which copyright law calls “phonorecords”—take the form of a

digital or analog recording, such as a compact disc, digital file (e.g., MP3), or vinyl record.

1733, 114

Cong. (2015); Free Market Royalty Act, H.R. 3219, 113

Cong. (2013); Performance Rights Act, H.R. 848

and S. 379, 111

Cong. (2009).

17 U.S.C. § 102(a)(2); see generally U.S. COPYRIGHT OFF., CIRC. NO. 50, COPYRIGHT REGISTRATION FOR MUSICAL

COMPOSITIONS (revised Mar. 2021), https://www.copyright.gov/circs/circ50.pdf.

U.S. COPYRIGHT OFF., CIRCULAR 56A, MUSICAL COMPOSITIONS AND SOUND RECORDINGS (revised Mar. 2021),

https://www.copyright.gov/circs/circ56a.pdf; see also SONG PIONEER, Songwriter vs. Composer,

https://songpioneer.com/songwriter-vs-composer/ (last visited April 27, 2023).

See CRS Report R43984, Money for Something: Music Licensing in the 21st Century, by Dana A. Scherer, at 7–8. In

exchange, publishers (1) promote the use of the musical works by artists and other users (e.g., producers of movies,

television programs, and commercials); (2) administer copyrights and royalty payments; and (3) support the

composers’, lyricists’, and/or songwriters’ creative process. DONALD S. PASSMAN, ALL YOU NEED TO KNOW ABOUT THE

MUSIC BUSINESS 220–21 (10

ed. 2019).

See 17 U.S.C. § 101 (definitions of “fixed” and “copies”). In the case of a digital or analog recording, the material

object is termed a “phonorecord.” See id. (definition of “phonorecord”).

Id. §§ 101 (definition of “sound recording”), 102(a)(7); see generally U.S. COPYRIGHT OFF., CIRC. NO. 56,

copyrightable—for example, an audiobook or a podcast. See COPYRIGHT OFF. CIRC. 56, supra, at 1. This report focuses

on sound recordings of musical works.

17 U.S.C. § 101 (definition of “phonorecord”); see COPYRIGHT OFF. CIRC. 56, supra note 15, at 2 (“The term

‘phonorecord’ includes any type of object that may be used to store a sound recording, including digital formats.... ”).

On the Radio: Public Performance Rights in Sound Recordings

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recorded (although, in some cases, both works may be created and fixed at the same time).

In many cases, performing artists will contract with a record label and assign their sound-

recording copyrights to the label.

These transfers generally last for defined periods—for

example, for recording a set number of albums—and apply to defined geographic regions.

return, recording artists receive advanced payment (i.e., advances) from the labels to cover their

costs of recording and marketing the songs. The artists also receive a share of royalties from sales

and licenses of the sound recordings, as well as income they earn from touring, merchandising,

and sponsorships.

Exclusive Rights of the Copyright Holder for Musical Works

Versus Sound Recordings

Owners of copyrights in musical works generally have the exclusive right to reproduce the work;

create derivative works from it; distribute (i.e., sell) copies or phonorecords of the work; and

perform or display the copyrighted work publicly.

Owners of copyrights in sound recordings have more limited legal rights. Like the owners of

musical-work copyrights, sound-recording copyright owners have the exclusive right to

reproduce the recording, create derivative works from it, and distribute it.

However, the

reproduction and derivative-work rights for sound recordings are limited to duplication of the

actual sounds of the recording.

Additionally, sound-recording copyright owners do not have any

general exclusive right to perform the sound recording publicly. Instead, the public performance

right for sound recordings extends only to “digital audio transmissions.”

Generally, if a particular action is within the copyright owner’s exclusive rights, no other person

can take that action without authorization from the copyright owner.

For example, another

person generally may not make copies of or sell a sound recording without permission from the

Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1197 (10

Cir. 2005); TufAmerica, Inc. v. Codigo Music LLC, 162

F. Supp. 3d 295, 303 n.5 (S.D.N.Y. 2016).

Scherer, supra note 13, at 8–10.

Whether recording artists are “employees” of the labels under the “work made for hire” doctrine has been the topic of

considerable congressional debate. See Jon Pareles, Musicians Take Copyright Issue to Congress, N.Y. TIMES (May 25,

2000), http://www.nytimes.com/2000/05/25/movies/musicians-take-copyright-issue-to-congress.html. When sound

recordings are not works made for hire, recording artists may terminate the assignment of their copyrights to the record

labels after 35 years. 17 U.S.C. § 203; 2 PATRY ON COPYRIGHT § 5:44, Work Made for Hire (2021).

Id. § 106(1)–(5).

Id. § 106(1)–(3).

Id. § 114(b). The limitation of the reproduction right to duplication of the actual sounds of the recording means that

others may imitate a musical performance (e.g., Jimi Hendrix’s take on “The Star Spangled Banner”) without violating

the sound-recording copyright, so long as the sounds themselves are independently produced and fixed by the second

performer (rather than duplicated or sampled from the first recording). In contrast, the musical-work copyright reaches

beyond literal duplication—any “substantially similar” composition that copied from the original work will infringe.

See Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9

Cir. 2020).

17 U.S.C. §§ 106(6), 114(a). 17 U.S.C. § 114(j)(5) defines a “digital audio transmission” as “a digital transmission as

defined in Section 101, that embodies the transmission of a sound recording.” In turn, 17 U.S.C. § 101 defines a

“digital transmission” as “a transmission in whole or in part in a digital or other non-analog format” and “to transmit”

as “to communicate ... by any device or process whereby images or sounds are received beyond the place from which

they are sent.” The digital transmission definition excludes over-the-air broadcast transmissions.

Id. §§ 106, 501(a).

On the Radio: Public Performance Rights in Sound Recordings

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exclusive rights, such as the fair use doctrine, apply).

Persons who act without permission from

the copyright owner are said to infringe the copyright and may be sued in court for damages and

other legal remedies.

Permission from the copyright owner is generally called a license.

Licenses may take two

general forms. The first is a voluntary (or ordinary) license, in which the copyright owner grants

permission via a negotiated contract, typically in exchange for monetary compensation (e.g.,

royalties).

The second is a statutory license—also known as a “compulsory license”—where

permission is granted by law.

When Congress provides for a statutory license for some use of a

copyrighted work, a third party need not seek individual permission from the copyright owner but

can instead engage in the use and pay a royalty set by law, including by an agency known as the

(For examples of statutory licenses, see infra “Noninteractive

Services: Statutory Licensing” and Figure 1.)

Historical Development of Copyrights for Music

For nearly 200 years, Congress has amended music-related copyright laws, often in reaction to

and in anticipation of consumer trends, stakeholder interests, technological developments, court

decisions, overseas competition, and international copyright treaties, among other reasons. While

a full discussion of these factors is beyond the scope of this report, Appendix B provides a

chronology of key events. This section summarizes some of those events, focusing on public

performance rights in sound recordings.

Musical Works

Musical works have been protected explicitly by federal copyright law since 1831.

An exclusive

right of public performance was granted to musical works in 1897.

Given the many places in

which songs may be publicly performed and the fleeting nature of performances, individual

potential users.

and music publishers) therefore joined together to form performing rights organizations (PROs)

See id. §§ 106 (exclusive rights), 107–122 (exceptions and limitations).

Id. §§ 501–505.

License, BLACK’S LAW DICTIONARY (11

ed. 2019) (“A permission ... to commit some act that would otherwise be

unlawful.”).

A written, signed contract is required for transfers of copyright ownership and exclusive licenses but not for

nonexclusive licenses. 17 U.S.C. §§ 101, 204.

Compulsory License, BLACK’S LAW DICTIONARY (11

ed. 2019) (“A statutorily created license that allows certain

parties to use copyrighted material without the explicit permission of the copyright owner in exchange for a specified

royalty.”).

See, e.g., 17 U.S.C. § 115 (compulsory license to make and distribute phonorecords of musical works); id. ch. 8

(establishing the Copyright Royalty Board [CRB] to determine reasonable royalty rates for statutory copyright

licenses).

Act of Feb. 3, 1831, 21

Cong., 2d Sess., 4 Stat. 436 (extending copyright to “authors of ... musical composition[s]”).

Prior to 1831, sheet music could be registered and protected as a “book” under the Copyright Act of 1790. See

generally 1 PATRY ON COPYRIGHT § 1:19, The First Copyright Act—Generally, at n.21 (2021); Clayton v. Stone, 5 F.

Cas. 999, 1000 (C.C.S.D.N.Y. 1829).

Act of Jan. 6, 1897, 54

Cong., 2d Sess., 29 Stat. 481.

See Broadcast Music, Inc. v. CBS, 441 U.S. 1, 4–6 (1979) (recounting history of the formation of performing rights

organizations).

On the Radio: Public Performance Rights in Sound Recordings

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to license their works on a collective (i.e., “blanket”) basis.

The first PRO was the American

Society of Composers, Authors and Publishers (ASCAP), founded in 1914.

PROs generally

offer users—such as radio stations, television stations, and businesses establishments—a blanket

license that allows them to perform publicly any of the musical works in the PRO’s catalog for a

flat fee or a percentage of total revenues.

Sound Recordings

Reproduction and Distribution

Between 1926 and 1971, Members of Congress introduced at least 19 bills that would have

granted copyright protection for the reproduction, distribution, and/or public performance of

sound recordings.

It was not until 1971 that Congress provided federal copyright protection for

sound recordings, prohibiting the reproduction and distribution of sound recordings without the

The stated reason for the legislation was the increasing piracy of

records and tapes, which a House report estimated as causing losses “in excess of $100 million,”

and for which state laws offered inconsistent and limited legal remedies.

The 1976 general revision of the Copyright Act (1976 Act), which created the Copyright Act’s

Section 114 to address sound recordings, largely maintained the scope of the 1971 law.

The

1976 Act recognized sound recordings as a type of copyrightable work, and granted copyright

Broadcast Music, 441 U.S. at 5–6. Performing rights organizations (PROs) do not license performance rights for

dramatic musical works—music that serves to enhance the plot of dramatic work, as in musical theater or opera.

Instead, rights holders of dramatic musical works control the licensing themselves. American Society of Composers,

Authors and Publishers (ASCAP), Common License Terms Defined, https://www.ascap.com/help/ascap-licensing/

licensing-terms-defined (last visited May 30, 2023). Copyright law does not define the terms dramatic or nondramatic.

The delineation depends on the facts pertaining to a particular performance. Id.

Broadcast Music, 441 U.S. at 4–5.

Id. at 5. For more detail on PROs, see generally Scherer, supra note 13, at 18–22. As a result of antitrust litigation,

the licensing activities of ASCAP and another PRO—Broadcast Music, Inc. (BMI)—are subject to consent decrees

with the U.S. Department of Justice. See CRS In Focus IF11463, Music Licensing: The ASCAP and BMI Consent

Decrees, by Kevin J. Hickey and Dana A. Scherer. At a high level, these consent decrees require the PROs to obtain

only the nonexclusive right to license musical performances, to offer licenses on equal terms to similarly situated

applicants, and to accept any songwriter who meets minimum membership requirements. See id.

Matthew S. DelNero, Long Overdue? An Exploration of the Status and Merit of a General Public Performance Right

in Sound Recording, 6 VAND J. ENT. L. & PRAC. 181, 202–03 n. 11 (2003). See generally BARBARA A. RINGER,

https://www.copyright.gov/history/studies/study26.pdf (reviewing dozens of legislative proposals dating from 1906 to

grant federal copyright protection to sound recordings). Part of the controversy delaying legislative action was legal

uncertainty about whether sound recordings (which are not legible to a human eye) could be considered “Writings”

within the meaning of the Constitution’s Copyright Clause. See RINGER, supra, at 4–7; White-Smith Music Pub. Co. v.

Apollo Co., 209 U.S. 1, 17 (1908) (construing a “copy” of a musical composition under the Copyright Act of 1831 as

“a written or printed record of it in intelligible notation”). The Supreme Court eventually put this issue to rest in

Goldstein v. California, 412 U.S. 546, 561–62 (1973) (holding that recorded musical performances were included

within the term “Writings” as used in the Copyright Clause).

Sound Recording Act of Oct. 15, 1971, Pub. L. No. 92-140, 85 Stat. 391, 391. For sound recordings made before the

effective date of the 1971 Act—February 15, 1972—copyright protection was, until recently, available only under state

law. In 2018, however, Congress provided for federal copyright-like protections for pre-1972 sound recordings. See

generally CRS Legal Sidebar LSB10181, The Music Modernization Act: Extending Copyright Protection to Pre-1972

Sound Recordings, by Kevin J. Hickey.

See H.R. REP. NO. 92-487, at 2–3 (1971).

Act of Oct. 19. 1976 (1976 Act), P.L. 93-553, 90 Stat. 2541, 2545–46, 2560–61.

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owners the exclusive rights to reproduce, distribute, and create derivative works.

The

reproduction right continued to be limited to duplication of the actual sounds in the recording (as

it still is).

Public Performances

Although the issue was debated in Congress, the 1976 Act did not provide an exclusive right of

public performance for sound recordings.

The new Section 114 included a provision stating that

the rights of the sound-recording copyright owner “do not include any right of performance.”

Instead, the 1976 Act directed the Copyright Office to study whether the law should be amended

to provide an exclusive right of public performance.

In 1978, the Copyright Office submitted its report to Congress and generally supported a public

performance right for sound recordings.

Although there were several congressional hearings and

bills introduced in the late 1970s and 1980s,

as well as a second Copyright Office report

favoring a performance right in 1991,

there was no change in the law until 1995. In describing

events that prompted the 1995 change, the House Committee on the Judiciary stated as follows:

Trends within the music industry, as well as the telecommunications and information

services industries, suggest that digital transmission of sound recordings is likely to become

a very important outlet for the performance of recorded music in the near future....

However, in the absence of appropriate copyright protection in the digital environment, the

creation of new sound recordings and musical works could be discouraged, ultimately

denying the public some of the potential benefits of the new digital transmission

technologies.

Through the Digital Performance Right in Sound Recordings Act of 1995 (DPRSRA),

Congress

amended the copyright laws to create a new exclusive right to publicly perform sound recordings,

but only when performed “by means of a digital audio transmission.”

This new right was also

Id.

Id. at 2560; see also 17 U.S.C. § 114(a)–(b).

See generally Sidney A. Diamond, Sound Recordings and Phonorecords: History and Current Law, 1979 U. ILL.

L.F. 337, 358–59 (noting that earlier versions of the 1976 Act included a performance right for sound recordings,

subject to a compulsory license, that was abandoned because “its controversial nature threatened further delay of the

entire copyright revision”); H.R. REP. NO. 94-1476, at 106 (“The Committee considered at length the argument in favor

of establishing a limited performance right [for sound recordings], but concluded that the problem requires further

study.”).

Id. at 2560–61.

Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H.R. Comm. on the Judiciary, Performance

Rights in Sound Recordings, 95

Cong., 2d Sess., at 177 (Comm. Print June 1978), https://copyright.gov/

reports/performance-rights-sound-recordings.pdf.

See 4 PATRY ON COPYRIGHT § 14:81, The Right to Publicly Perform a Work—Sound Recordings—Generally (2021)

(citing to congressional hearings on the issue).

U.S. COPYRIGHT OFF., THE REPORT OF THE REGISTER OF COPYRIGHTS ON COPYRIGHT IMPLICATIONS OF DIGITAL AUDIO

TRANSMISSION SERVICES 160 (Oct. 1991), https://www.copyright.gov/history/

H.R. REP. NO. 104-274, at 12–13 (1995).

P.L. 104-39, 109 Stat. 336 (1995) (codified as amended at 17 U.S.C. §§ 106(2), 114(d)–(j)).

Id. at 336; 17 U.S.C. § 106(6).

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made subject to various limitations, exceptions, and statutory licenses, described in amendments

to Section 114.

For example, Congress exempted over-the-air transmissions by broadcast radio stations.

The

Senate Committee on the Judiciary reasoned that performers have “benefitted considerably from

airplay and other promotional activities provided by advertiser-supported, free over-the-air

broadcasting” and that Congress did not wish to alter “the mutually beneficial economic

relationship between the recording and traditional broadcasting industries.”

The committee also

distinguished traditional radio from then-emerging “on-demand” digital music services:

The Committee believes that copyright owners of sound recordings should enjoy protection

with respect to digital subscription, interactive and certain other such performances. By

contrast, free over-the-air broadcasts are available without subscription, do not rely on

interactive delivery, and provide a mix of entertainment and non-entertainment

programming and other public interest activities to local communities to fulfill a condition

of the broadcasters’ license. The Committee has considered these factors in concluding not

to include free over-the-air broadcast services in this legislation.... It is the Committee’s

intent to provide copyright holders of sound recordings with the ability to control the

distribution of their product by digital transmissions, without hampering the arrival of new

technologies, and without imposing new and unreasonable burdens on radio and television

broadcasters, which often promote, and appear to pose no threat to, the distribution of

sound recordings.

Congress also exempted certain transmissions to and within business establishments.

The

Senate committee’s report explained its intent to exempt from liability both “noninteractive

transmissions and retransmissions made to business establishments for use in the ordinary course

of their business, such as for background music played in offices, retail stores or restaurants,”

well as “storecasting” (i.e., transmission or retransmissions by businesses “on or around their

premises”).

DPRSRA also created a new statutory license for certain noninteractive public performances of

sound recordings by digital means.

This license, later amended and expanded in 1998 in the

Digital Millennium Copyright Act (DMCA),

is explained below.

Ephemeral Recordings

As early as the 1940s, broadcast radio stations have made temporary copies of sound recordings

to facilitate the transmission of music over the air. For example, stations may have recorded live

109 Stat. at 336–44; 17 U.S.C. § 114(d)–(j).

17 U.S.C. § 114(d)(1)(A).

S. REP. NO 104-128, at 15 (1995).

Id.

17 U.S.C. § 114(d)(1)(C)(ii), (iv).

S. REP. NO 104-128, at 23.

Id. at 22.

109 Stat. at 338; 17 U.S.C. § 114(d)(2).

P.L. 105-304, § 405; 112 Stat. 2860, 2890–2902 (1998) (codified at 17 U.S.C. §§ 112(f), 114(d)).

See infra “Noninteractive Services: Statutory Licensing.”

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 8

performances of orchestras but broadcast those performances at a later date.

In addition,

broadcast stations may retain copies of music broadcasts for archival purposes.

Thus, in contrast to a “permanent” reproduction of a sound recording available to the public for

sale, an “ephemeral” copy of a sound recording is a temporary copy used internally by

broadcasters and/or other entities that transmit music to the public. In 1976, Congress created a

separate statutory license to allow broadcast radio stations to make ephemeral recordings if the

stations were otherwise to transmit the work.

The Federal Communications Commission (FCC), the agency that licenses broadcast radio

stations, began to consider authorizing digital broadcast radio services in 1990.

In the DMCA,

Congress amended Section 112(a) to extend to broadcast radio stations the same ability to make

royalty-free ephemeral recordings for over-the-air digital transmissions as they had for over-the-

air analog transmissions.

Similarly to broadcast radio stations, the digital music services emerging in the 1990s also needed

to reproduce sound recordings for internal business and technical purposes (e.g., multiple copies

of sound recordings on different servers to transmit music to listeners at different bitrates and

qualities).

To allow this, the DMCA created a new, separate ephemeral recording statutory

license under Section 112(e).

Section 112(e) permits entities transmitting to business

establishments and entities relying on the Section 114 statutory license for noninteractive digital

audio transmissions to make multiple ephemeral copies of sound recordings, subject to certain

limitations.

Current Law Governing Public Performance of

Sound Recordings

Following DPRSA, organizations that publicly transmit performances of sound recordings via

digital audio transmissions generally must pay to license those performances.

Examples of

General Report on the Work of the Brussels Diplomatic Conference of the Revision of the Berne Convention

Presented by Marcel Plaisant, Rapporteur-General to the General Committee on June 25, 1948, and Approved in

Plenary on June 26, 1948, at 264, https://global.oup.com/booksites/content/9780198259466/15550028. The signatories

to this treaty agreed to make it a matter of individual nations’ laws “to determine the regulations for epithermal

recordings made by a broadcasting organization of means of its own facilities and used for its own broadcasts.” Article

11-bis (2), Brussels Act (1948), at WIPO Lex.

H.R. REP. NO. 94-1476, at 103 (1976).

17 U.S.C. § 112(a); H.R. REP. NO. 94-1476, at 47, 101 (1976). Under § 112(a) of the 1976 Act (P.L. 94-553), a

broadcast station may make a single ephemeral copy for its own transmission, within its “local service area.” The term

“local service area” is defined in § 111(f) of the 1976 Act (17 U.S.C. § 111(f)). However, this definition applies to

television stations rather than radio stations. For more information about this definition, see CRS Report R44473,

What’s on Television? The Intersection of Communications and Copyright Policies, by Dana A. Scherer. § 112(b), also

enacted in 1976, provides instructional broadcasters and educational groups with more extensive ephemeral recording

rights than those for commercial broadcaster stations. See 17 U.S.C. § 112(b).

Digital Audio Broadcasting Systems and Their Impact on Terrestrial Radio Broadcast Service, Notice of Proposed

Rule Making, MM Docket No. 99-325, 15 F.C.C.R. 1722, 1724 (1999), https://docs.fcc.gov/public/attachments/FCC-

99-327A1.pdf.

Digital Millennium Copyright Act (DMCA), P.L. 105-304, § 402 (codified at 17 U.S.C. § 112(a)).

H.R. REP. NO. 105-796, at 79, 89-90 (1998).

DMCA § 405(b) (codified at 17 U.S.C. § 112(e)).

See 17 U.S.C. § 112(e)(1). See also H.R. REP. NO. 105-796, at 89–90 (1998).

17 U.S.C. § 106(6).

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 9

digital audio transmission services include “webcasters” (e.g., broadcast radio stations

transmitting programming over the internet); digital subscription services (e.g., SiriusXM satellite

digital radio service and Music Choice cable network); and music streaming services (e.g.,

Pandora and Spotify).

In granting performance rights for the digital audio transmission of sound recordings in the

1990s, however, Congress exempted certain transmissions entirely and subjected others to

statutory licensing. This section reviews the law on which digital audio transmissions are exempt,

subject to statutory licensing, or subject to negotiated licensing, including provisions that permit

the creation of ephemeral recordings.

Exempt Transmissions

Generally, a radio broadcaster transmitting over the air need not pay to license public

performances of sound recordings for those broadcasts.

A radio broadcaster, however, must limit

retransmissions to a radius of 150 miles of its station’s transmitter, unless it is transmitting its

signal to another radio station to extend its over-the-air signal.

In addition, a digital music service that transmits to a business establishment for the use of music

in its ordinary course of business as background music need not pay a licensing fee for

performance of the sound recording (provided the business does not retransmit the music outside

its premises or immediate vicinity).

Nonexempt Transmissions

For nonexempt digital audio transmissions of sound recordings, the public performance royalty

rate depends largely on whether the service is interactive or noninteractive.

Interactive Services: Marketplace Negotiations

An interactive service, such as Spotify, enables members of the public to select particular sound

recordings to be performed to them.

These types of transmissions require a negotiated license

from the copyright owner to perform (i.e., stream) the sound recording to the public.

Thus,

public performance royalty rates for interactive services are set by contractual agreements

between rights holders (e.g., record companies) and the service.

(Under the Musical Works

Modernization Act, services like Spotify may obtain blanket licenses for “digital phonorecord

deliveries,” but these licenses are for the reproduction and distribution of the musical works, not

for the reproduction, distribution, or performance of the sound recording.

)

Id. § 114(d)(1)(A).

Id. § 114(d)(1)(B).

Id. § 114(d)(1)(C)(iv); see also S. REP. NO. 104-128, at 23–24. The Senate report noted that the bill was “[not]

intended to change current law as it applies to such public performances of copyrighted musical works under section

106(4).” Id. at 24.

17 U.S.C. § 114(j)(7).

Id. § 114(d)(3).

See Scherer, supra note 13, at 28.

P.L. 115-264, § 102, 132 Stat. 3676, 3677–3723 (codified at 17 U.S.C. § 115).

On the Radio: Public Performance Rights in Sound Recordings

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Noninteractive Services: Statutory Licensing

Digital audio transmissions by noninteractive services, where the user cannot select particular

sound recordings to be played to them on demand (e.g., Pandora), are generally subject to

statutory licensing.

These services do not require advance permission from the copyright owner

to perform a sound recording. Instead, the organizations receive a compulsory license to make the

performances in exchange for paying royalty rates set by the CRB. This category includes

subscription services, such as Sirius XM, and nonsubscription services, such as simulcasts of

broadcast radio transmissions online.

In a 2002 order setting royalty rates for noninteractive services, the Librarian of Congress, who

had ultimate authority over the forerunner to the CRB, the Copyright Arbitration Royalty Panel,

upon recommendation of the Register of Copyrights, determined that “the better interpretation of

the law is that the exemption [for public performances of sound recordings made within a 150

mile radius of the station’s transmitter] does not apply to radio retransmissions made over the

Internet.”

Therefore, radio stations that simulcast their over-the-air broadcasts over the internet

are subject to the statutory licensing scheme for the online simulcast.

Ephemeral Recordings

Two separate provisions allow radio stations and other transmitting entities to make ephemeral

copies of a sound recording to make an otherwise authorized transmission.

Under Section 112(a) of the DCMA, a radio broadcaster need not pay to make a single ephemeral

recording of a phonorecord necessary to transmit sound recordings over the air, provided it (1) is

the only organization that uses those recordings, (2) limits transmission to its local service area,

and (3) destroys the copy of the sound recording within six months from the first date of

transmission to the public, unless it is preserving the recording for archival purposes.

Section

112(a) is an exemption for copyright, so the broadcasters need not pay royalties to make these

ephemeral recordings.

Under Section 112(e), broadcasters—as well as webcasters, services transmitting music to

business establishments, and others relying on the statutory license for noninteractive services—

may make multiple ephemeral recordings in order to make licensed transmissions.

These

ephemeral copies must be used solely by the transmitting organization for their own

transmissions, and they generally must be destroyed within six months.

Unlike Section 112(a),

Id. § 114(d)(2).

Id. § 114(d)(2), (j)(6).

The Copyright Royalty Tribunal Act of 1993, P.L. 103-198, created two layers of review that result in a final order:

one by the Librarian of Congress (Librarian) and a second by the U.S. Court of Appeals for the District of Columbia

Circuit. The act directed the Librarian, on the recommendation of the Register of Copyrights, either to accept the

decision of the tribunal or to reject it. If the Librarian rejected it, the Librarian was required to substitute the Librarian’s

own determination. If the Librarian accepted it, then the determination of the tribunal became the determination of the

Librarian. The Copyright Royalty and Distribution Reform Act of 2004, P.L. 108-419, amended the rate-setting

procedures, which are now described in 17 U.S.C. § 803.

Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings and Ephemeral

Recordings, 67 Fed. Reg. 45,240, 45,256 (July 8, 2002). See also Bonneville Int’l Corp. v. Peters, 347 F.3d 485 (3d

Cir. 2003), aff’g 153 F. Supp. 2d 763 (E.D. Pa. 2001); Public Performance of Sound Recordings: Definition of a

Service, 65 Fed. Reg. 77,292, 77,295–300 (Dec. 11, 2000).

17 U.S.C. § 112(a).

Id. § 112(e)(1).

Id.

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Congressional Research Service 11

transmitters relying on Section 112(e) do need to pay copyright holders for this right under a

statutory license with rates set by the CRB.

Figure 1. Sound Recording Licensing Royalties from Noninteractive Services

Statutory Licenses for Sound Recordings

Source: Congressional Research Service (CRS).

Note: As described in “Royalties for Statutory Licenses,” SoundExchange is an agent representing record labels

and recording artists that collects and distributes royalties.

Technological, Legislative, and Industry

Developments: Effects on Recording Industry

Revenues

Figure 2 illustrates the relationship between technological, legislative, and industry developments

within the recording industry and the revenues generated by the industry. In particular, the mix of

revenues has shifted from predominately retail sales of physical products, such as vinyl records

and cassette tapes in the 1970s, to predominately wholesale licensing of sound recordings to on-

demand streaming services.

Id. § 112(e)(3)–(5).

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Figure 2. Recording Industry Revenue Trends

Adjusted for Inflation in 2022 Dollars

Figure is interactive in the HTML version of this report.

Source: CRS analysis of data provided by the Recording Industry Association of America, April 2023.

Notes: In 1999, the same year recording industry revenues reached an apex of $25.6 billion (in 2022 dollars),

two teenagers introduced a free, peer-to-peer file-sharing service called Napster, enabling computer users to

share each other’s record collections throughout the world. Courts eventually ruled that Napster’s service

violated copyright laws. A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000), aff’d, 239 F.3d

1004 (9

Cir. 2001). Despite Napster’s loss, total industry revenues, when adjusted for inflation, have declined

overall since 1999. For additional information, see Scherer, supra note 13.

Royalties for Statutory Licenses

For the services subject to statutory licensing, a nonprofit collective called SoundExchange acts

as a common agent for record labels to receive and distribute royalties. The CRB, in line with

previous decisions, formally designated SoundExchange as the collective for the period

beginning January 1, 2021, and ending December 31, 2025.

The CRB sets rates for public performances and ephemeral reproductions of sound recordings—

sometimes known as “Section 114” and “Section 112” licenses, respectively—which are paid to

SoundExchange.

In some cases, the CRB codifies (in rulemakings approved by the Librarian of

Congress) rates agreed to by interested parties.

The distribution of Section 114 royalties for

Determination of Rates and Terms for Digital Performance of Sound Recordings and Ephemeral Recordings to

Facilitate Those Performances (Web V), 86 Fed. Reg. 59,452, 59,589 (Oct. 27, 2021) [hereinafter Web V Proceeding].

See Scherer, supra note 13, at 25–27.

For example, in 2021, the CRB adopted rates based on negotiated settlements reached between SoundExchange and

public broadcasters and between SoundExchange and educational institutions. Web V Proceeding, supra note 86, at

59,453.

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 13

noninteractive digital services is set by statute: 50% to the copyright owner; 45% to the featured

performing artists; 2.5% to non-featured musicians; and 2.5% to non-featured vocalists.

(Section 112 royalties go the copyright owner, usually a record company.)

Rates for Noninteractive Services/Webcasters

The CRB set royalty rates for 2021 through 2025 at $0.0026 per performance for subscription

services and $0.0021 per performance for nonsubscription (advertising-supported) services,

with adjustments made to reflect inflation as measured by the Consumer Price Index.

The annual minimum fee for commercial webcasters is $1,000 per channel or station, capped at

$100,000 for each licensee. The annual minimum fee for noncommercial webcasters is $1,000 per

channel or station, which covers 159,140 aggregate tuning hours each month and $0.0021 per

performance for all transmissions in excess of 159,140 listening aggregate tuning hours.

This

benchmark of aggregate tuning hours stems from a 2004 survey conducted by National Public

Radio (NPR) in which it found that each of its stations averaged 218 simultaneous listeners.

Multiplying 218 listeners times 24 hours per day times the quotient of 365 days per year divided

by 12 months per year results in 159,140 aggregate tuning hours per month.

Five percent of royalties collected are to be applied to the ephemeral license, and the per-

performance rates are subject to yearly adjustments based on cost-of-living changes in the

Consumer Price Index.

17 U.S.C. § 114(g)(2).

In the context of these rate proceedings, a “performance” generally refers to the “public performance” (i.e., playing)

of a single song (e.g., the delivery of any portion of a single track from an album to a listener). 37 C.F.R. § 380.7

(2022).

Web V Proceeding, supra note 86, at 58,452; 37 C.F.R. § 380.10.

The term “aggregate tuning hours” means

the total hours of programming that the Licensee has transmitted during the relevant period to all

listeners within the United States from all channels and stations that provide audio programming

consisting, in whole or in part, of eligible nonsubscription transmissions or noninteractive digital

audio transmissions as part of a new subscription service, less the actual running time of any sound

recordings for which the Licensee has obtained direct licenses apart from 17 U.S.C. § 114(d)(2) or

which do not require a copyright license. By way of example, if a service transmitted one hour of

programming containing Performances to 10 listeners, the service’s ATH would equal 10 hours. If

three minutes of that hour consisted of transmission of a directly-licensed recording, the service’s

ATH would equal nine hours and 30 minutes (three minutes times 10 listeners creates a deduction

of 30 minutes). As an additional example, if one listener listened to a service for 10 hours (and

none of the recordings transmitted during that time was directly licensed), the service’s ATH would

equal 10 hours.

37 C.F.R. § 380.7.

Digital Performance Right in Sound Recordings and Ephemeral Recordings, 72 Fed. Reg. 24084, 24099 (May 1,

2007) (amending 37 C.F.R. § 380).

Id. n. 47.

The CRB, and by extension the Code of Federal Regulations, defines several terms, which in turn are the basis of the

amount of royalties they pay to license public performances. 17 C.F.R. §§ 380.7, 380.20, 380.30.

On the Radio: Public Performance Rights in Sound Recordings

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Rates for Services Transmitting to Business Establishments

In 2018, the CRB set rates for ephemeral recordings for services transmitting to business

establishments as a percentage of the services’ revenues, growing from 12.5% of revenues in

2019 to 13.5% of revenues in 2023.

The minimum fee for each calendar year is $20,000.

Legislation Introduced in the 118

Congress

LRFA, H.Con.Res. 13 and S.Con.Res. 5 in the 118

Congress,

a nonbinding resolution, would

effectively declare support for maintaining the status quo. Currently, broadcast radio stations and

businesses pay copyright owners of musical works (e.g., music publishers and songwriters) for

the right to publicly perform musical works,

and they are not required to pay copyright owners

of sound recordings (e.g., record labels and performers) to publicly perform their works.

By contrast, AMFA, H.R. 791 and S. 253 in the 118

Congress, would extend performance rights

in sound recordings to terrestrial broadcast radio.

As a bill, AMFA would become law if passed by Congress. As a concurrent resolution, LRFA

would express the collective sentiment of Congress but would not be presented to the President or

become law.

Supporting the Local Radio Freedom Act

LRFA contains a preamble explaining the resolution’s rationale, which declares the following:

“[T]he United States enjoys broadcasting and sound recording industries that are the envy

of the world, due to the symbiotic relationship that has existed among these industries for

many decades[.]”

“[F]or nearly a century, Congress has rejected repeated calls by the recording industry to

impose a performance fee on local radio stations for simply playing music on the radio and

upsetting the mutually beneficial relationship between local radio and the recording

industry[.]”

“[L]ocal radio stations provide free publicity and promotion to the recording industry and

performers of music in the form of radio air play, interviews with performers, introduction

of new performers, concert promotions, and publicity that promotes the sale of music,

concert tickets, ring tones, music videos and associated merchandise[.]”

“Congress found that ‘the sale of many sound recordings and the careers of many

performers benefited considerably from airplay and other promotional activities provided

by both noncommercial and advertiser-supported, free over-the-air broadcasting’[.]”

“[L]ocal radio broadcasters provide tens of thousands of hours of essential local news and

weather information during times of national emergencies and natural disasters, as well as

public affairs programming, sports, and hundreds of millions of dollars of time for public

Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to

Business Establishments (Business Establishments III), 83 Fed. Reg. 60362 (Nov. 26, 2018) (amending 37 C.F.R.

§ 384). See also 37 C.F.R. § 384.3.

As of July 28, 2023, H.Con.Res. 13 has 118 original cosponsors and 71 additional cosponsors; S.Con.Res. 5 has 19

original cosponsors and 4 additional cosponsors.

CLOUDCOVER MEDIA, Top 11 Licensing Questions: How to Play Legal Business in Music,

https://cloudcovermusic.com/blog/licensing-questions-legal-business-music/#legal-1 (last visited Aug, 30, 2022).

As of July 28, 2023, H.R. 791 has three original cosponsors and one additional cosponsor; S. 253 has three original

cosponsors.

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 15

service announcements and local fund-raising efforts for worthy charitable causes, all of

which are jeopardized if local radio stations are forced to divert revenues to pay for a new

performance fee[.]”

“[T]here are many thousands of local radio stations that will suffer severe economic

hardship if any new performance fee is imposed, as will many other small businesses that

play music including bars, restaurants, retail establishments, sports and other entertainment

venues, shopping centers and transportation facilities[.]”

“[T]he hardship that would result from a new performance fee would hurt American

businesses, and ultimately the American consumers who rely on local radio for news,

weather, and entertainment; and such a performance fee is not justified when the current

system has produced the most prolific and innovative broadcasting, music, and sound

recording industries in the world.”

100

LRFA then resolves that Congress is not to “impose any new performance fee, tax, royalty, or

other charge relating to the public performance of sound recordings on a local radio station for

broadcasting sound recordings over the air, or on any business for such public performance of

sound recordings.”

101

American Music Fairness Act

As explained above, current law provides a limited public performance right for sound recordings

via digital audio transmission. AMFA would expand the public performance right for sound

recordings to reach any “audio transmission,” whether digital, analog, or another format.

102

AMFA would eliminate the current exemption that applies to broadcast transmissions for FCC-

licensed radio stations.

103

By deleting “digital” from the definition of “eligible nonsubscription

transmissions” in Section 114, the bill would include terrestrial radio broadcasts in the statutory

licensing scheme currently applicable to noninteractive, nonsubscription digital audio

transmissions.

104

AMFA would direct the CRB to institute proceedings to set royalty rates for

nonsubscription broadcast transmissions as soon as possible after enactment.

105

AMFA would cap on a sliding scale the royalty rates for individual broadcast stations that have

annual revenues of less than $1.5 million and that are owned, operated, and/or indirectly

controlled by an organization—whether operating for-profit or not-for-profit—with annual

revenues of less than $10 million.

106

Thus, certain flat annual royalty rates would apply to smaller

broadcasters.

100

LRFA, H.Con.Res. 13.

101

Id.

102

AMFA § 2(a).

103

Id. § 2(b).

104

Id. § 2(b)–(c).

105

Id. § 3.

106

Id. § 4(ii). (Providing that the royalty rate for nonsubscription broadcast transmissions by an individual terrestrial

broadcast station is a flat rate if, among other conditions, “(I) the revenue of the operation of that individual station was

less than $1,500,000 during the immediately preceding calendar year; [and] (II) the aggregate revenue of the owner and

operator of the broadcast station and any person directly or indirectly controlling, controlled by, or under common

control with such owner or operator, from any source, was less than $10,000,000 during the immediately preceding

calendar year.... ”

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 16

AMFA does not include provisions specific to business establishments publicly performing sound

recordings within their premises or music services transmitting to those establishments.

107

AMFA

also does not directly address whether a broadcast station would retain its limited exemption from

paying for a single ephemeral recording under 17 U.S.C. § 112(a).

108

Supporters of public performance rights for sound recordings transmitted via broadcast radio

generally, including the U.S. Copyright Office and the U.S. Patent and Trademark Office,

109

and

AMFA specifically, have made the following arguments:

• The United States is one of the only developed countries in the world that does

not require broadcast radio stations to compensate performers for the right to play

their music.

110

By making these rights reciprocal, AMFA would help ensure that

performers receive compensation when their music is played by broadcast

stations internationally.

111

• The bill would create regulatory parity between broadcast radio stations and their

digital competitors (i.e., streaming services, satellite radio, and online radio

services), which pay performance royalties for sound recordings.

112

• As more people discover music online, the rationale that broadcasters provide

free promotion for artists, which enables them to increase sales of recorded music

and concert tickets, is less valid today than it was in the 1990s.

113

Nevertheless,

the bill would require the CRB to factor in any promotional benefits from radio

airplay when setting copyright royalty rates.

114

• The bill contains provisions intended to ensure that small commercial broadcast

radio stations, as well as public, college, and other noncommercial stations, pay

reduced royalty fees.

107

Because the performance right that AMFA would create applies only to “audio transmissions,” nonbroadcast

performances of sound recordings by businesses like restaurants or nightclubs would ordinarily fall outside of the right

because they are not “received beyond the place from which they are sent.” See 17 U.S.C. § 101 (definition of

“transmit”).

108

AMFA would, however, amend § 112(e) by striking the phrase “a digital audio transmission” and inserting the

phrase “an audio transmission.” Broadcasters who create multiple ephemeral recordings for the purpose of an over-the-

air transmission would be subject to the same statutory licensing scheme that applies when they reproduce multiple

ephemeral copies of a phonorecord for the purpose of streaming.

109

Letter from Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, and Kathi Vidal,

Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, to the

Honorable Dick Durbin, Chairman, Senate Committee on the Judiciary; the Honorable Chuck Grassley, Ranking

Member, Senate Committee on the Judiciary; The Honorable Jerrold Nadler, Chairman, House Committee on the

Judiciary; the Honorable Jim Jordan, Ranking Member, House Committee on the Judiciary; September 22, 2022,

https://copyright.gov/laws/hearings/joint-performance-right-letter-signed.pdf.

110

Press Release, Rep. Darrell Issa, Rep. Issa and House and Senate Colleagues Reintroduce Bill to Ensure Artists Fair

Pay for Radio Airplay (Feb. 2, 2023), https://issa.house.gov/media/press-releases/rep-issa-and-house-and-senate-

colleagues-reintroduce-bill-ensure-artists-fair.

111

RECORDING ACADEMY, Advocacy: Why the American Music Fairness Act Will Give Music Creators What They

Deserve (June 24, 2021), https://www.grammy.com/advocacy/news/why-american-music-fairness-act-will-give-music-

creators-what-they-deserve. See also World Intellectual Property Organization (WIPO) Performances and Phonograms

Treaty (WPPT), art. 4, Dec. 20, 1996, 2186 U.N.T.S. 245, 36 I.L.M. 76; (1997) (2014).

112

See Issa Press Release, supra note 110.

113

New Radio Royalty Bill Shifts Tactic to Focus on Big Groups. Music Industry Concedes Radio Helps Promotion,

INSIDERADIO (June 25, 2021), http://www.insideradio.com/new-radio-royalty-bill-shifts-tactic-to-focus-on-big-groups-

music-industry-concedes-radio/article_3520ac50-d52c-11eb-9836-6b4dbd4d2e8b.html (quoting Rep. Peter Doyle).

114

Id. (quoting Rep. Darrell Issa).

On the Radio: Public Performance Rights in Sound Recordings

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Opponents of AMFA—who also support LRFA—when arguing against AMFA’s enactment,

reiterate points outlined within LRFA’s preamble (described in “Supporting the Local Radio

Freedom Act”).

115

Policy Considerations

Potential Impact of AMFA on Radio Stations

In some instances, a broadcast station may pay a rate set by the CRB, even if the station generates

less than $1.5 million per year in revenue, because its parent organization—which may be in one

or more lines of business other than radio broadcasting—generates more than $10 million in

revenues per year.

In the case of noncommercial stations,

116

the CRB may set lower rates than it might for

commercial stations, just as it currently does for webcasters (see “Noninteractive Services”). The

CRB set lower rates for noncommercial webcasters than it did for commercial webcasters. In

addition, broadcast licensees may separately negotiate royalty rates that the CRB subsequently

adopts. For example, the CRB set rates for stations affiliated with College Broadcasters, Inc.

(CBI), the Corporation for Public Broadcasting (CPB), and NPR based on their negotiated

agreements with SoundExchange.

117

Potential Impact on Broadcast Radio Newsroom Investment

According to the National Association of Broadcasters, imposing any additional royalty fees on

broadcast radio stations would “financially cripple local radio stations, harming the millions of

listeners who rely on local radio for news, emergency information, weather updates and

entertainment every day.”

118

Evidence regarding the extent to which local radio serves as a sole or key source of news is

inconclusive. According to a 2022 survey from Pew Research Center, “Americans turn to

[broadcast] radio and print publications for news far less frequently than to digital devices and

television.”

119

About 13% of U.S. adults surveyed said they received news “often” from broadcast

radio, compared with 51% who said they received news often from digital devices and 36% who

said they received news often from television.

120

The relatively low employment of news employees by radio stations in comparison to other

media also reflects the role of radio in providing news and information. In comparison to

broadcast television stations and newspapers, radio stations employ relatively few people who

115

NATIONAL ASSOCIATION OF BROADCASTERS, Advocacy: A Performance Tax Threatens Local Jobs,

https://www.nab.org/advocacy/issue.asp?id=1889&issueid=1002. See also Press Release, Senator Maggie Hassan,

Senators Hassan and Barrasso Introduce the Bipartisan Local Radio Freedom Act (Mar. 9, 2023),

https://www.hassan.senate.gov/news/press-releases/senators-hassan-and-barrasso-introduce-the-bipartisan-local-radio-

freedom-act.

116

Public broadcasting stations that generated at least $100,000 but less than $1.5 million in the preceding calendar

year would pay $100 per year, pursuant to § 4(a) of AMFA.

117

Web V Proceeding at 59,589, supra note 86.

118

NAT’L ASS’N OF BROADS., Advocacy: A Performance Tax Threatens Local Jobs, https://www.nab.org/advocacy/

issue.asp?id=1889&issueid=1002 (last visited Aug. 30, 2022).

119

Naomi Forman-Katz & Katerina Eva Matsa, News Platform Factsheet, PEW RSCH. CTR. (Sept. 20, 2022),

https://www.pewresearch.org/journalism/fact-sheet/news-platform-fact-sheet/.

120

Id.

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 18

report on and produce local news stories. The Bureau of Labor Statistics estimates that of the

47,100 news analysts, reporters, and journalists employed nationwide in 2021 (most recent data

available), about 2,000 (4.2%) were employed by radio broadcasters.

121

This total represents less

than the number employed by television broadcasters (14,500 or 30.8%) and newspapers (13,500

or 28.7%) and the number who were self-employed (7,800 or 16.5%).

Potential Impact on Religious Radio Broadcasters

Because many religious broadcast licensees operating as nonprofits are not required by the

Internal Revenue Service to disclose their revenues publicly, the Congressional Research Service

cannot readily predict whether they would fall below the benchmarks that would enable them to

pay flat royalty rates if AMFA were enacted, in lieu of rates set by the CRB. To qualify for the flat

fees, the owner or operator of a station would be required to submit to a nonprofit collective

designated by the CRB (e.g., SoundExchange) a written and signed certification of eligibility.

122

In the CRB’s Webcaster V ratemaking proceeding, of the four entities representing

noncommercial entities that participated, three entered into negotiated settlements with

SoundExchange. The other entity, National Religious Broadcasters Noncommercial Music

Licensing Committee (NRBNMLC), participated actively.

123

NRBNMLC subsequently appealed

the CRB’s rate, claiming that it is too high. NRBNMLC also argues that the CRB violated the

Religious Freedom Restoration Act and the First Amendment of the U.S. Constitution by

discriminatorily charging religious radio stations more than secular, NPR-affiliated stations,

which reached a separate settlement for lower rates.

124

The CRB contends that NRBNMLC has

not sufficiently supported its proposal that its stations pay the same rate as public radio stations

with evidence or expert testimony. The case, National Religious Broadcasters Noncommercial

Music License Committee v. CRB, et al., remains pending at the U.S. Court of Appeals for the

District of Columbia Circuit.

125

Potential Impact on Business Establishments

LRFA stipulates businesses would not pay any additional royalties to record labels and artists for

transmitting music within their establishments. AMFA, as introduced in the 118

Congress, does

not appear to apply to services that transmit to business establishments or to a business that

transmits music within its premises and/or the immediately surrounding vicinity, as the bill leaves

intact those current statutory exemptions.

126

121

U.S. BUREAU OF LAB. STAT., Employment Projections; National Employment Matrix-Occupation; 27-3023 News

Analysts, Reporters, and Journalists; Employment by Industry, Occupation, and Percent Distribution, 2021 and

Projected 2031, https://data.bls.gov/projections/nationalMatrix?queryParams=27-3023&ioType=o (last visited April

27, 2023).

122

AMFA, § 4(a).

123

Web V Proceeding, supra note 86, at 59,565.

124

Katie Buehler, DC Circuit Wary of Webcaster Royalty Rate Challenges, LAW360 (Feb. 17, 2023),

https://www.law360.com/articles/1575601/dc-circ-wary-of-webcaster-royalty-rate-challenges.

125

National Religious Broadcasters Noncommercial Music License Committee v. CRB, No. 21-1243 (appeal filed Nov.

24, 2021).

126

AMFA § 2(b) (striking 17 U.S.C. § 114(d)(1)(A) but not § 114(d)(1)(C)).

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 19

Role of Broadcast Radio in Promoting Songs and Driving Record

Industry Revenues

Music industry professionals and observers differ in their views of broadcast radio’s role in

promoting new songs and driving record industry revenues. As the trade publication Variety stated

in a 2021 article, “During the many decades when physical sales drove the music business, radio

promotion was crucial—and accounted for a huge percentage of major label budgets.”

127

For several decades, in a practice widely known as “payola,” record labels paid radio stations and

disc jockeys to play songs, and the stations failed to notify the public.

128

Notably, for about 60

years during that period—the mid-1920s through the mid-1980s—two major broadcast radio

networks and station owners, NBC and CBS, were subsidiaries of corporations that also owned

record labels: RCA Records

129

and CBS Records, respectively.

130

According to a 1959 statement

submitted by ASCAP to the House Special Committee on Legislative Oversight, both NBC and

CBS used their broadcast facilities, in conjunction with payola, to favor promotion of their own

record labels’ songs over those of competitors.

131

According to a 2022 article from the trade

publication Billboard, several promotions executives its reporter interviewed stated that it is still

common for record labels to pay in money or goods to convince a radio station to add a song to

its playlist or increase the frequency of airplay.

132

Regarding the importance of radio airplay, Billboard reports the following:

While radio rarely breaks hits in the streaming era outside of country music, it remains

important in building recognition at a mass scale, as well as raising awareness in local

markets for artists on tour. Radio airplay charts continue to be a metric of success in the

music industry internally, and airplay remains one of the components of the Billboard

charts.

133

A promotion executive at an independent label quoted in the report claimed that promotional

costs prevent smaller record labels from getting airplay for their songs: “[t]he airwaves are

127

Geoff Mayfield, As Streaming Dominates the Music World, is Radio’s Signal Fading, VARIETY (Feb. 10, 2021),

https://variety.com/2021/music/news/radio-signal-fading-streaming-1234904387/.

128

For more about the historical practice and federal government agencies’ efforts to combat it, see Richard Kielbowicz

and Linda Lawson, Unmasking Hidden Commercials in Broadcasting: Origins of the Sponsorship Identification

Regulations, 1927 – 1963, FED. COM. L.J. 347–350, 327 (2004), Elias Leight, Want to Get on the Radio? Have

$50,000?, ROLLING STONE (Aug. 6, 2019), https://www.rollingstone.com/pro/features/radio-stations-hit-pay-for-play-

867825/.

129

RADIO CORPORATION OF AMERICA, Our Legacy, https://www.rca.com/us_en/our-legacy-266-us-en. William K.

Knoedelseder Jr., GE Agrees to Sell Its 75% Interest in Record Firm: W. German Conglomerate Would Become Sole

Owner of RCA/Ariola Operations, LOS ANGELES TIMES (Sept. 10, 1986), https://www.latimes.com/archives/la-xpm-

1986-09-10-fi-13152-story.html.

130

COMPANIESHISTORY.COM, CBS Corporation, https://www.companieshistory.com/cbs/. Geraldine Fabrikant, CBS to

Sell Record Unit to Sony, New York Times (Nov. 19, 1987) https://www.nytimes.com/1987/11/19/business/cbs-to-sell-

record-unit-to-sony.html.

131

Letter from Burton Lane, President, American Guild of Authors and Composers, to Robert W. Lishman,

Subcommittee Counsel (Oct. 29, 1959), in Investigation of Television Quiz Shows, pts. 1&2: Hearings Before the Spec.

Subcomm. On Legislative oversight of the House Comm. On Interstate and Foreign Commerce, 86

Cong. 1142, 1145–

1147 (1959).

132

Elias Leight, Why Indie Artists Are a Rarity: ‘If You Don’t Pay, You Don’t Move Up, BILLBOARD, Sept. 19, 2022,

https://www.billboard.com/pro/indie-labels-radio-pay-for-play/.

133

Id.

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 20

designed not to be built for all.... You can only come to the table if you’re spending the right

amount of money and you know the right people.”

134

Id.

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 21

Appendix A. Glossary

The following is a list of definitions relevant to music licensing contained in the Copyright Act

and the Code of Federal Regulations (C.F.R.).

Glossary

Term

Definition

Source(s)

Aggregate

Tuning Hours

(ATH)

Total hours of programming that the Licensee has transmitted

during the relevant period to all listeners within the United

States from all channels and stations that provide audio

programming consisting, in whole or in part, of eligible

nonsubscription transmissions or noninteractive digital audio

transmissions as part of a new subscription service, less the

actual running time of any sound recordings for which the

Licensee has obtained direct licenses apart from 17 U.S.C.

§ 114(d)(2) or which do not require a license under Title 17,

United States Code. By way of example, if a service transmitted

one hour of programming containing Performances to 10

listeners, the service’s ATH would equal 10 hours. If three

minutes of that hour consisted of transmission of a directly

licensed recording, the service’s ATH would equal nine hours

and 30 minutes (the product of three minutes times 10 listeners

creates a deduction of 30 minutes). As an additional example, if

one listener listened to a service for 10 hours (and none of the

recordings transmitted during that time was directly licensed),

the service’s ATH would equal 10 hours.

37 C.F.R. § 380.7

Broadcast

Transmission

A transmission made by a terrestrial broadcast station licensed

as such by the Federal Communications Commission.

17 U.S.C. § 114(j)

Business

Establishment

Service

Service making transmissions of sound recordings under the

limitation on exclusive rights specified by 17 U.S.C.

§ 114(d)(1)(C)(iv).

37 C.F.R. §§ 370.1, 384.2

Collective

Collection and distribution organization that is designated by the

37 C.F.R. §§ 370.1, 380.7,

384.2

Commercial

Webcaster

Licensee, other than a Noncommercial Webcaster,

Noncommercial Educational Webcaster, or Public Broadcaster,

that makes Ephemeral Recordings and eligible digital audio

transmissions of sound recordings pursuant to the statutory

licenses under 17 U.S.C. § 112(e) and § 114(d)(2).

37 C.F.R. § 380.7

Digital Audio

Transmission

Digital transmission, as defined in 17 U.S.C. § 101, that embodies

the transmission of a sound recording. This term does not

include the transmission of any audiovisual work.

17 U.S.C. § 114(j)(5);

37 C.F.R. § 380.7

Digital

Transmission

Transmission in whole or in part in a digital or other non-analog

format.

17 U.S.C. § 101

Display

To show a copy of a work, either directly or by means of a film,

slide, television image, or any other device or process or, in the

case of a motion picture or other audiovisual work, to show

individual images nonsequentially.

17 U.S.C. § 101

Dramatic

Musical Work

Musical work created for use in a motion picture or a dramatic

work, including musical plays and operas.

U.S. COPYRIGHT OFF.,

COMPENDIUM OF U.S.

PRACTICES § 802.2(A) (3d

ed. Jan. 2021),

https://www.copyright.go

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 22

Term

Definition

Source(s)

v/comp3/ [hereinafter

COMPENDIUM]

Ephemeral

Recording

For purposes of enforcing Section 112 of the Copyright Act of

1976, as amended (17 U.S.C. § 112), a reproduction of a sound

recording made for the sole purpose of facilitating statutory

licensees’ permitted transmissions of performances of sound

recordings.

37 C.F.R. § 384.2

Establishment

Store, shop, or any similar place of business open to the general

public for the primary purpose of selling goods or services in

which the majority of the gross square feet of space that is

nonresidential is used for that purpose, and in which

nondramatic musical works are performed publicly.

17 U.S.C. § 101

Food Service or

Drinking

Establishment

Restaurant, inn, bar, tavern, or any other similar place of

business in which the public or patrons assemble for the primary

purpose of being served food or drink, in which the majority of

the gross square feet of space that is nonresidential is used for

that purpose, and in which nondramatic musical works are

performed publicly.

17 U.S.C. § 101

Gross Square

Feet of Space

Establishment’s entire interior space, and any adjoining outdoor

space used to serve patrons, whether on a seasonal basis or

otherwise.

17 U.S.C. § 101

Infringe

To violate the exclusive rights of a copyright owner, as provided

by the Copyright Act of 1976, as amended.

17 U.S.C. § 501

License

Authorization given by a copyright owner to use their work,

usually in exchange for payment.

BLACK’S LAW DICTIONARY

(11

ed. 2019)

Musical Work

(Musical

Composition)

For purposes of copyright registration, original works of

authorship consisting of music and any accompanying words.

Music is a succession of pitches or rhythms, or both, usually in

some definite pattern.

COMPENDIUM § 802.1

Noncommercial

Educational

Webcaster

A webcaster that . . .

Is directly operated by or is affiliated with and officially

sanctioned by, and the digital audio transmission operations

of which are staffed substantially by students enrolled at, a

domestically accredited primary or secondary school,

college, university or other post-secondary degree-granting

educational institution;

Is not a ‘public broadcasting entity’ (as defined in 17 U.S.C.

118(f)) qualified to receive funding from the Corporation

for Public Broadcasting pursuant to its criteria; and

Takes affirmative steps not to make total transmissions in

excess of 159,140 Aggregate Tuning Hours (ATH) on any

individual channel or station in any month, if in any previous

calendar year it has made total transmissions in excess of

159,140 ATH on any individual channel or station in any

month.

37 C.F.R. § 380.20

Noncommercial

Webcaster

Webcaster that—(I) is exempt from taxation under Section 501

of the Internal Revenue Code of 1986 (26 U.S.C. 501); (II) has

applied in good faith to the Internal Revenue Service for

exemption from taxation under Section 501 of the Internal

Revenue Code and has a commercially reasonable expectation

that such exemption shall be granted; or (III) is operated by a

State or possession or any governmental entity or subordinate

37 C.F.R. § 380.7 (which

states term has same

meaning as in 17 U.S.C.

§ 114(f)(4)(E), but

excludes a

Noncommercial

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 23

Term

Definition

Source(s)

thereof, or by the United States or District of Columbia, for

exclusively public purposes; but excludes a Noncommercial

Educational Webcaster or Public Broadcaster.

Educational Webcaster

or Public Broadcaster)

Nondramatic

Musical Work

Musical work that was not created for use in a motion picture or

a dramatic work, such as a ballad intended for distribution solely

on an album or an advertising jingle intended solely for

performance on the radio.

COMPENDIUM § 802.2(A)

Nonsubscription

Transmission

Service

A service that makes noninteractive nonsubscription digital audio

transmissions that are not exempt under Section 114(d)(1) of

Title 17 of the United States Code and are made as part of a

service that provides audio programming consisting, in whole or

in part, of performances of sound recordings, including

transmissions of broadcast transmissions, if the primary purpose

of the service is to provide to the public such audio or other

entertainment programming, and the primary purpose of the

service is not to sell, advertise, or promote particular products

or services other than sound recordings, live concerts, or other

music-related events.

37 C.F.R. § 380.7 (which

states term has same

meaning as in 17 U.S.C.

§ 114(j))

Originating

Public Radio

Station

Noncommercial terrestrial radio broadcast station that—

(1) Is licensed as such by the Federal Communications

Commission;

(2) Originates programming and is not solely a repeater

station;

(3) Is a member or affiliate of NPR, American Public Media,

Public Radio International, or Public Radio Exchange, a

member of the National Federation of Community

Broadcasters, or another public radio station that is

qualified to receive funding from CPB pursuant to its

criteria;

(4) Qualifies as a “noncommercial webcaster” under 17

U.S.C. § 114(f)(4)(E)(i); and

(5) Either—

(i) Offers website Performances only as part of the

mission that entitles it to be exempt from taxation

under Section 501 of the Internal Revenue Code

of 1986 (26 U.S.C. § 501); or

(ii) In the case of a governmental entity (including a

Native American Tribal governmental entity), is

operated exclusively for public purposes.

37 C.F.R. § 380.30

Perform

To recite, render, play, dance, or act a work, either directly or

by means of any device or process or, in the case of a motion

picture or other audiovisual work, to show its images in any

sequence or to make the sounds accompanying it audible.

17 U.S.C. § 101

Performing

Rights Society

(a.k.a.

Performing

Rights

Organization)

Association, corporation, or other entity that licenses the public

performance of nondramatic musical works on behalf of

Composers, Authors and Publishers (ASCAP), Broadcast Music,

Inc. (BMI), and SESAC, Inc.

17 U.S.C. § 101

Phonorecords

Material objects in which sounds, other than those accompanying

a motion picture or other audiovisual work, are fixed by any

method now known or later developed, and from which the

sounds can be perceived, reproduced, or otherwise

17 U.S.C. § 101

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 24

Term

Definition

Source(s)

communicated, either directly or with the aid of a machine or

device. The term “phonorecords" includes the material object in

which the sounds are first fixed.

Public

Broadcasters

For purposes of enforcing Sections 112 and 114 of the Copyright

Act, National Public Radio, American Public Media, Public Radio

International, and Public Radio Exchange, and up to 530

Originating Public Radio Stations as named by the Corporation

for Public Broadcasting (CPB). CPB shall notify SoundExchange

annually of the eligible Originating Public Radio Stations to be

considered Public Broadcasters per this definition (subject to the

numerical limitations set forth in this definition). The number of

Originating Public Radio Stations treated per this definition as

Public Broadcasters shall not exceed 530 for a given year without

SoundExchange’s express written approval, except that CPB shall

have the option to increase the number of Originating Public

Radio Stations that may be considered Public Broadcasters as

provided in 37 C.F.R. § 380.31(c).

37 C.F.R. § 380.30

Public

Performance

To perform a work at a place open to the public or at any place

where a substantial number of persons outside of a normal circle

of a family and its social acquaintances is gathered; or to transmit

or otherwise communicate a performance of the work: (1) to a

place open to the public; or (2) to the public, by means of any

device or process. Members of the public may be capable of

receiving the performance: (1) in the same place or separate

places and (2) at the same time or at different times.

17 U.S.C. § 101

Publication

Distribution of copies or phonorecords of a work to the public

by sale or other transfer of ownership, or by rental, lease, or

lending. The offering to distribute copies or phonorecords to a

group of persons for purposes of further distribution, public

performance, or public display, constitutes publication. A public

performance or display of a work does not of itself constitute

publication.

17 U.S.C. § 101

Report of Use

Report required to be provided by a Service that is transmitting

sound recordings pursuant to the statutory license set forth in

Section 114(d)(2) of Title 17 of the United States Code or

making ephemeral phonorecords of sound recordings pursuant

to the statutory license set forth in Section 112(e) of Title 17 of

the United States Code, or both.

37 C.F.R. § 370.1

Royalty

Compensation to the owner of intellectual property for the right

to use the work, often paid per copy made or sold.

BLACK’S LAW DICTIONARY

(11

ed. 2009)

Service

Entity engaged in either the digital transmission of sound

recordings pursuant to Section 114(d)(2) of Title 17 of the

United States Code or making ephemeral phonorecords of

sound recordings pursuant to Section 112(e) of Title 17 of the

United States Code or both. The definition of a Service includes

an entity that transmits an AM/FM broadcast signal over a digital

communications network such as the Internet, regardless of

whether the transmission is made by the broadcaster that

originates the AM/FM signal or by a third party, provided that

such transmission meets the applicable requirements of the

statutory license set forth in 17 U.S.C. § 114(d)(2). A Service

may be further characterized as either a subscription service,

satellite digital audio radio service, nonsubscription transmission

service, business establishment service or a combination of

those.

37 C.F.R. § 370.1

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 25

Term

Definition

Source(s)

Sound

Recordings

Works that result from the fixation of a series of musical,

spoken, or other sounds, but not including the sounds

accompanying a motion picture or other audiovisual work,

regardless of the nature of the material objects, such as disks,

tapes, or other phonorecords, in which they are embodied.

17 U.S.C. § 101

Statutory

License

A license created by law that allows others to make specified

uses of copyrighted material without the explicit permission of

the copyright owner in exchange for a specified royalty. Because

the copyright owner must grant a license, statutory licenses are

sometimes called “compulsory licenses.” In some instances, a

compulsory license has a statutory rate. In other instances, the

rates are negotiated or set by the CRB.

BLACK’S LAW DICTIONARY

(11

ed. 2019);

COMPENDIUM § 101.3(D),

Glossary at p.3

Transmit

To communicate a [P]erformance by any device or process

whereby images or sounds are received beyond the place from

which they are sent.

17 U.S.C. § 101

Work Made for

Hire

A work: (1) prepared by an employee within the scope of his or

her employment; or (2) specially ordered or commissioned for

use as a contribution to a collective work, as a part of a motion

picture or other audiovisual work, as a translation, as a

supplementary work, as a compilation, as an instructional text, as

a test, as answer material for a test, or as an atlas, if the parties

expressly agree in a written instrument signed by them that the

work shall be considered a work made for hire.

17 U.S.C. § 101

Webcaster

A person or entity that has obtained a compulsory license under

Section 112 or 114 [of the Copyright Act of 1976, as amended]

and the implementing regulations therefor to make eligible

nonsubscription transmissions and ephemeral recordings.

Small Webcaster

Settlement Act of 2002,

P.L. 107-321, § 4(E)(iii)

(codified at 17 U.S.C. §

114 note).

Noninteractive, nonsubscription service streaming music over

the internet.

Public Performance of

Sound Recordings:

Definition of a Service, 65

Fed. Reg. 77,292, 77,296

(Dec. 11, 2000).

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service 26

Appendix B. Chronology

Chronology of Key Dates Related to U.S. Enactment and Enforcement of Copyrights

for Musical Works and Sound Recordings

1790

United States enacts first federal copyright law, the Copyright Act of 1790. 1 Stat. 124.

1831

Congress amends copyright law to explicitly protect musical compositions. 4 Stat. 436.

1856

Congress enacts amendment to the Copyright Act, 11 Stat. 138, that adds, for the first time in the

United States, a public performance right for authors of dramatic works (i.e., playwrights)

“designed or suited for public representation.” Rather than creating a separate playwright

protection distinct from general copyright protection, the law treats public performance as an

additional exclusive right.

1883

U.S. authors form the American Copyright League to lobby Congress to enact adoption of

international copyright law and abolish any legal discriminations between U.S. and foreign authors

of dramatic works. The league becomes influential in shaping copyright legislation that subsequently

includes composers.

1885

In Carte v. Duff (a.k.a. The Mikado Case), 25 F. 183 (C.C.S.D. N.Y. 1885), the circuit court for the

Southern District of New York finds that the music of an opera (or operetta) originally written for

an orchestra is not a dramatic work under the 1856 amendment to the Copyright Act. Public

performance rights thus do not apply to musical works.

1895

The American Music Publishers Association of the United States forms as a trade organization to

promote the interests of publishers and composers and lobbies Congress to amend copyright laws

to add public performance rights for authors and publishers of musical works, including dramatic

musical works.

1897

Congress enacts an amendment to the Copyright Act, 29 Stat. 489, that adds a public performance

right for authors of dramatic and musical works, with statutory damages and injunctions as

available remedies for violations of that right.

1909

Congress enacts a general revision of the Copyright Act, 35 Stat. 1075, that gives authors of

musical works (i.e., composers) exclusive rights to reproduce those musical works mechanically.

This establishes first statutory (“compulsory”) copyright license, requiring composers to license

musical works for mechanical reproductions to others in exchange for $0.02/part (e.g., a player

piano roll).

1914

Composers found the American Society of Composers, Authors, and Publishers (ASCAP) to issue

and collect royalties for public performance licenses of nondramatic musical works.

1930

Immigrant composer Paul Heinecke founds the Society of European Stage Authors and Composers

(SESAC) to administer public performances of nondramatic musical works on behalf of European

composers.

1939

Radio broadcasters found and finance Broadcast Music Inc. (BMI) to compete with ASCAP, thereby

enabling them to pay lower fees for the right to publicly perform musical works.

1940

Disagreements with ASCAP over proposed royalty rates prompt three-quarters of the 800 radio

stations in existence to boycott ASCAP-affiliated musical works.

1941

The U.S. Department of Justice threatens to sue ASCAP and BMI for violating antitrust laws.

ASCAP and BMI enter into consent decrees. Rates charged by ASCAP and BMI must be approved

by district court judges in the Southern District of New York.

1971

Congress enacts a 1971 amendment to the Copyright Act (P.L. 92-140), the first copyright law that

specifically applies to sound recordings. Record labels and performing artists may sue for

unauthorized duplication and reproduction of phonorecords (physical objects in which sound

recordings are fixed).

On the Radio: Public Performance Rights in Sound Recordings

Congressional Research Service R47642 · VERSION 6 · UPDATED 27

1976

Congress enacts the Copyright Act of 1976 (P.L. 94-553), a comprehensive revision and

reorganization of copyright laws. Section 112 of the act permits broadcast radio stations to make

“ephemeral recordings” of phonorecords (temporary reproductions), without risking infringement,

under limited circumstances. The act also establishes a new royalty tribunal to set rates for

mechanical licenses, in lieu of the $.02/part fee codified in 1909. Newly created Section 114 covers

sound recordings.

1995

Congress enacts the Digital Performance Right in Sound Recordings Act (DPRSRA; P.L. 104-39),

creating an exclusive right for copyright owners of sound recordings, subject to certain limitations,

to perform publicly their sound recordings by means of digital audio transmissions. Among the

limitations on the performance right was the creation of a new statutory license for nonexempt,

noninteractive digital subscription transmissions (e.g., cable music channels).

1998

Congress enacts the Digital Millennium Copyright Act (DMCA; P.L. 105-304), expanding the scope

of statutory licenses for public performances of sound recordings (amending § 114). The DMCA

enables eligible nonsubscription transmissions (e.g., Pandora) and digital satellite radio services

(e.g., Sirius-XM) to publicly perform sound recordings pursuant to a statutory license.

The DMCA amends Section 112 to create a new statutory license for the making of ephemeral

recordings by certain transmitting organizations. Entities that transmit performances of sound

recordings to business establishments, pursuant to the limitations set forth in Section

114(d)(1)(C)(iv), may make an ephemeral recording of a sound recording for purposes of a later

transmission.

Author Information

Kevin J. Hickey

Legislative Attorney

Dana A. Scherer

Specialist in Telecommunications Policy

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

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