Samuel E. Meredith
87 Geo. Wash. L. Rev. 1518
Imagine yourself getting into your car and tuning in to a local radio station so you can listen to Cardi B’s latest track while you drive to work. Now imagine yourself doing the same thing, only this time you choose to listen to satellite radio. From your perspective, there is likely little difference between these two scenarios. And yet, for Cardi B—an artist who has made her fondness for checks quite clear—the difference could be rather meaningful. Indeed, thanks to a gaping loophole in the Copyright Act, the satellite transmission of the sound recording in the above example would trigger a royalty obligation while the traditional broadcast transmission would not.
If you find this disparity between “digital” outlets and traditional broadcasters puzzling, you are not alone; legislators have tried multiple times to rectify the problem. As a policy matter, these proposals certainly have appeal. After all, why should the source of a transmission determine whether the copyright owner of a sound recording is entitled to a royalty?
As a practical matter, however, successfully closing the gap between digital and terrestrial outlets would require close attention to a myriad of small but important details. One such detail is how the Copyright Royalty Board (“CRB”) would administer a public performance right in sound recordings that encompasses both digital and terrestrial outlets. An analysis of how the CRB has fared in administering the digital public performance right that currently exists shows that the CRB will need some fine-tuning in order to effectively administer a broader public performance right. Specifically, to properly fulfill this responsibility, the CRB would need a more robust staff and greater access to economic expertise.
