On the Radio: Public Performance Rights in
August 18, 2023
Sound Recordings
Kevin J. Hickey
A copyright grants the authors of a creative work certain exclusive rights in their creation. The
Legislative Attorney
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.,
Dana A. Scherer
composition of the songwriters and lyricists who write a piece of music) since the early 19th
Specialist in
century. Congress also has long recognized an exclusive right of public performance for musical
Telecommunications
works. This right means that persons wishing to perform a musical work publicly—for example,
Policy
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 118th 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).
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Contacts
Author Information ........................................................................................................................ 27

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On the Radio: Public Performance Rights in Sound Recordings

Introduction
Copyright law grants the authors of original creative works a set of exclusive rights in their
creations.1 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.2 Congress did not recognize any right of public performance for sound
recordings until 1995.3 This right is limited to performances “by means of a digital audio
transmission.”4 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.5 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 118th 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.6 Resolutions similar to LRFA were introduced in past
Congresses.7
In contrast, the American Music Fairness Act (AMFA)—H.R. 791 and S. 253 in the 118th
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.8 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.9 Bills similar to AMFA were
also introduced in past Congresses.10

1 See 17 U.S.C. § 106.
2 Compare id. § 106(4) (public performance rights for musical and other works) with § 106(6) (limited public
performance right for sound recordings).
3 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)).
4 See 17 U.S.C. § 106(6).
5 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 (11th ed. 2009).
6 H.Con.Res. 13, 118th Cong. (2023); S.Con.Res. 5, 118th Cong. (2023).
7 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, 117th Cong. (2021); H.Con.Res. 20 and S.Con.Res. 5, 116th Cong.
(2019); H.Con.Res. 13 and S.Con.Res. 6, 115th Cong. (2017); H.Con.Res. 17 and S.Con.Res. 4, 114th Cong. (2015);
H.Con.Res. 16 and S.Con.Res. 6, 113th Cong. (2013); H.Con.Res. 21 and S.Con.Res. 7, 112th Cong. (2011);
H.Con.Res. 49 and S.Con.Res. 82, 111th Cong. (2009); H.Con.Res. 244 and, S.Con.Res. 82, 110th Cong. (2007).
8 See H.R. 791, § 2, 118th Cong. (2023); S. 253, § 2, 118th Cong. (2023).
9 H.R. 791, §§ 2(b), 4; S. 253, §§ 2(b), 4.
10 Similar bills introduced in previous Congresses include the following: American Music Fairness Act (AMFA) of
2022, H.R. 4130 and S. 4932, 117th Cong. (2022); Ask Musicians For Music Act of 2019, H.R. 5219 and S. 2932, 116th
Cong. (2019); Fair Play Fair Pay Act of 2017, H.R. 1836, 115th Cong. (2017); Fair Play Fair Pay Act of 2015, H.R.
(continued...)
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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.
Copyright in Musical Works and Sound Recordings
The Difference Between Musical Works and Sound Recordings
Copyright law recognizes two distinct types of copyrightable works relating to musical creativity.
The first type, a musical work, covers the musical composition itself—for example, the melody of
a song and any accompanying lyrics.11 The author—the initial copyright owner of a musical
work—is typically the composer(s), lyricist(s), or songwriter (collectively, songwriters.)12 In
many cases, songwriters assign their musical-work copyrights to a music publisher.13 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.14
The second type of copyrightable work relating to music is a sound recording, which covers the
recorded performance of a musical work.15 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.16 In

1733, 114th Cong. (2015); Free Market Royalty Act, H.R. 3219, 113th Cong. (2013); Performance Rights Act, H.R. 848
and S. 379, 111th Cong. (2009).
11 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.
12 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).
13 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 (10th ed. 2019).
14 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”).
15 Id. §§ 101 (definition of “sound recording”), 102(a)(7); see generally U.S. COPYRIGHT OFF., CIRC. NO. 56,
COPYRIGHT REGISTRATION FOR SOUND RECORDINGS (revised Mar. 2021). Nonmusical sound recordings are also
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.
16 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.... ”).
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copyright terms, a sound recording is considered a derivative work of the musical work being
recorded (although, in some cases, both works may be created and fixed at the same time).17
In many cases, performing artists will contract with a record label and assign their sound-
recording copyrights to the label.18 These transfers generally last for defined periods—for
example, for recording a set number of albums—and apply to defined geographic regions.19 In
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.20
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.21 However, the
reproduction and derivative-work rights for sound recordings are limited to duplication of the
actual sounds of the recording.22 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.”23
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.24 For example, another
person generally may not make copies of or sell a sound recording without permission from the
copyright owner (unless one of the exceptions to and limitations on the copyright owner’s

17 COPYRIGHT OFF. CIRCULAR 56A, supra note 12; 1 NIMMER ON COPYRIGHT § 2.10[b] (2022); see also Palladium
Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1197 (10th Cir. 2005); TufAmerica, Inc. v. Codigo Music LLC, 162
F. Supp. 3d 295, 303 n.5 (S.D.N.Y. 2016).
18 Scherer, supra note 13, at 8–10.
19 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).
20 Id. § 106(1)–(5).
21 Id. § 106(1)–(3).
22 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 (9th Cir. 2020).
23 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.
24 Id. §§ 106, 501(a).
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exclusive rights, such as the fair use doctrine, apply).25 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.26
Permission from the copyright owner is generally called a license.27 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).28 The second is a statutory license—also known as a “compulsory license”—where
permission is granted by law.29 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
Copyright Royalty Board (CRB).30 (For examples of statutory licenses, see infra “Noninteractive
Services: Statutory Licensing” a nd 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 1831.31 An exclusive
right of public performance was granted to musical works in 1897.32 Given the many places in
which songs may be publicly performed and the fleeting nature of performances, individual
copyright owners found it difficult to detect unauthorized uses and negotiate licenses with
potential users.33 Copyright owners of nondramatic musical works (e.g., songwriters, composers,
and music publishers) therefore joined together to form performing rights organizations (PROs)

25 See id. §§ 106 (exclusive rights), 107–122 (exceptions and limitations).
26 Id. §§ 501–505.
27 License, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A permission ... to commit some act that would otherwise be
unlawful.”).
28 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.
29 Compulsory License, BLACK’S LAW DICTIONARY (11th 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.”).
30 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).
31 Act of Feb. 3, 1831, 21st 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).
32 Act of Jan. 6, 1897, 54th Cong., 2d Sess., 29 Stat. 481.
33 See Broadcast Music, Inc. v. CBS, 441 U.S. 1, 4–6 (1979) (recounting history of the formation of performing rights
organizations).
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to license their works on a collective (i.e., “blanket”) basis.34 The first PRO was the American
Society of Composers, Authors and Publishers (ASCAP), founded in 1914.35 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.36
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.37 It was not until 1971 that Congress provided federal copyright protection for
sound recordings, prohibiting the reproduction and distribution of sound recordings without the
copyright holder’s permission.38 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.39
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.40 The
1976 Act recognized sound recordings as a type of copyrightable work, and granted copyright

34 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.
35 Broadcast Music, 441 U.S. at 4–5.
36 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.
37 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,
COPYRIGHT LAW REVISION NO. 26: THE UNAUTHORIZED DUPLICATION OF SOUND RECORDINGS 21–37 (1957),
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).
38 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.
39 See H.R. REP. NO. 92-487, at 2–3 (1971).
40 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.41 The
reproduction right continued to be limited to duplication of the actual sounds in the recording (as
it still is).42
Public Performances
Although the issue was debated in Congress, the 1976 Act did not provide an exclusive right of
public performance for sound recordings.43 The new Section 114 included a provision stating that
the rights of the sound-recording copyright owner “do not include any right of performance.”44
Instead, the 1976 Act directed the Copyright Office to study whether the law should be amended
to provide an exclusive right of public performance.45
In 1978, the Copyright Office submitted its report to Congress and generally supported a public
performance right for sound recordings.46 Although there were several congressional hearings and
bills introduced in the late 1970s and 1980s,47 as well as a second Copyright Office report
favoring a performance right in 1991,48 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.49
Through the Digital Performance Right in Sound Recordings Act of 1995 (DPRSRA),50 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.”51 This new right was also

41 Id.
42 Id. at 2560; see also 17 U.S.C. § 114(a)–(b).
43 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.”).44 Copyright Act of Oct. 19, 1976, § 101; 90 Stat. 2541, 2560 (codified at 17 U.S.C. § 114(a)).
44 Copyright Act of Oct. 19, 1976, § 101; 90 Stat. 2541, 2560 (codified at 17 U.S.C. § 114(a)).
45 Id. at 2560–61.
46 Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H.R. Comm. on the Judiciary, Performance
Rights in Sound Recordings, 95th Cong., 2d Sess., at 177 (Comm. Print June 1978), https://copyright.gov/
reports/performance-rights-sound-recordings.pdf.
47 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).
48 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/
Copyright%20Implications%20of%20Digital%20Audio%20Transmission%20Services.pdf.
49 H.R. REP. NO. 104-274, at 12–13 (1995).
50 P.L. 104-39, 109 Stat. 336 (1995) (codified as amended at 17 U.S.C. §§ 106(2), 114(d)–(j)).
51 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 114.52
For example, Congress exempted over-the-air transmissions by broadcast radio stations.53 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.”54 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.55
Congress also exempted certain transmissions to and within business establishments.56 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,”57 as
well as “storecasting” (i.e., transmission or retransmissions by businesses “on or around their
premises”).58
DPRSRA also created a new statutory license for certain noninteractive public performances of
sound recordings by digital means.59 This license, later amended and expanded in 1998 in the
Digital Millennium Copyright Act (DMCA),60 is explained below.61
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

52 109 Stat. at 336–44; 17 U.S.C. § 114(d)–(j).
53 17 U.S.C. § 114(d)(1)(A).
54 S. REP. NO 104-128, at 15 (1995).
55 Id.
56 17 U.S.C. § 114(d)(1)(C)(ii), (iv).
57 S. REP. NO 104-128, at 23.
58 Id. at 22.
59 109 Stat. at 338; 17 U.S.C. § 114(d)(2).
60 P.L. 105-304, § 405; 112 Stat. 2860, 2890–2902 (1998) (codified at 17 U.S.C. §§ 112(f), 114(d)).
61 See infra “Noninteractive Services: Statutory Licensing.”
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performances of orchestras but broadcast those performances at a later date.62 In addition,
broadcast stations may retain copies of music broadcasts for archival purposes.63
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.64
The Federal Communications Commission (FCC), the agency that licenses broadcast radio
stations, began to consider authorizing digital broadcast radio services in 1990.65 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.66
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).67 To allow this, the DMCA created a new, separate ephemeral recording statutory
license under Section 112(e).68 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.69
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.70 Examples of

62 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.
63 H.R. REP. NO. 94-1476, at 103 (1976).
64 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).
65 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.
66 Digital Millennium Copyright Act (DMCA), P.L. 105-304, § 402 (codified at 17 U.S.C. § 112(a)).
67 H.R. REP. NO. 105-796, at 79, 89-90 (1998).
68 DMCA § 405(b) (codified at 17 U.S.C. § 112(e)).
69 See 17 U.S.C. § 112(e)(1). See also H.R. REP. NO. 105-796, at 89–90 (1998).
70 17 U.S.C. § 106(6).
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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.71 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.72
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).73
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.74 These types of transmissions require a negotiated license
from the copyright owner to perform (i.e., stream) the sound recording to the public.75 Thus,
public performance royalty rates for interactive services are set by contractual agreements
between rights holders (e.g., record companies) and the service.76 (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.77)

71 Id. § 114(d)(1)(A).
72 Id. § 114(d)(1)(B).
73 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.
74 17 U.S.C. § 114(j)(7).
75 Id. § 114(d)(3).
76 See Scherer, supra note 13, at 28.
77 P.L. 115-264, § 102, 132 Stat. 3676, 3677–3723 (codified at 17 U.S.C. § 115).
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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.78 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.79
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,80
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.”81 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.82 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.83 These
ephemeral copies must be used solely by the transmitting organization for their own
transmissions, and they generally must be destroyed within six months.84 Unlike Section 112(a),

78 Id. § 114(d)(2).
79 Id. § 114(d)(2), (j)(6).
80 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.
81 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).
82 17 U.S.C. § 112(a).
83 Id. § 112(e)(1).
84 Id.
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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.85
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 col ects 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.

85 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 bil ion (in 2022 dol ars),
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 (9th 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, 2025.86
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.87 In some cases, the CRB codifies (in rulemakings approved by the Librarian of
Congress) rates agreed to by interested parties.88 The distribution of Section 114 royalties for

86 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].
87 See Scherer, supra note 13, at 25–27.
88 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.
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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.89
(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,90
with adjustments made to reflect inflation as measured by the Consumer Price Index.91
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.92 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.93
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.94
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.95

89 17 U.S.C. § 114(g)(2).
90 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).
91 Web V Proceeding, supra note 86, at 58,452; 37 C.F.R. § 380.10.
92 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.
93 Digital Performance Right in Sound Recordings and Ephemeral Recordings, 72 Fed. Reg. 24084, 24099 (May 1,
2007) (amending 37 C.F.R. § 380).
94 Id. n. 47.
95 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.
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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 2023.96 The minimum fee for each calendar year is $20,000.
Legislation Introduced in the 118th Congress
LRFA, H.Con.Res. 13 and S.Con.Res. 5 in the 118th Congress,97 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,98 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 118th Congress, would extend performance rights
in sound recordings to terrestrial broadcast radio.99
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

96 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.
97 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.
98 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).
99 As of July 28, 2023, H.R. 791 has three original cosponsors and one additional cosponsor; S. 253 has three original
cosponsors.
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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.... ”
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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).
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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.
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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 118th 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)).
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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 Records129 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, 86th 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.
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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

134 Id.
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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
Total hours of programming that the Licensee has transmitted
37 C.F.R. § 380.7
Tuning Hours
during the relevant period to all listeners within the United
(ATH)
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.
Broadcast
A transmission made by a terrestrial broadcast station licensed
17 U.S.C. § 114(j)
Transmission
as such by the Federal Communications Commission.
Business
Service making transmissions of sound recordings under the
37 C.F.R. §§ 370.1, 384.2
Establishment
limitation on exclusive rights specified by 17 U.S.C.
Service
§ 114(d)(1)(C)(iv).
Collective
Col ection and distribution organization that is designated by the
37 C.F.R. §§ 370.1, 380.7,
Copyright Royalty Judges.
384.2
Commercial
Licensee, other than a Noncommercial Webcaster,
37 C.F.R. § 380.7
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).
Digital Audio
Digital transmission, as defined in 17 U.S.C. § 101, that embodies
17 U.S.C. § 114(j)(5);
Transmission
the transmission of a sound recording. This term does not
37 C.F.R. § 380.7
include the transmission of any audiovisual work.
Digital
Transmission in whole or in part in a digital or other non-analog
17 U.S.C. § 101
Transmission
format.
Display
To show a copy of a work, either directly or by means of a film,
17 U.S.C. § 101
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.
Dramatic
Musical work created for use in a motion picture or a dramatic
U.S. COPYRIGHT OFF.,
Musical Work
work, including musical plays and operas.
COMPENDIUM OF U.S.
COPYRIGHT OFFICE
PRACTICES § 802.2(A) (3d
ed. Jan. 2021),
https://www.copyright.go
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Term
Definition
Source(s)
v/comp3/ [hereinafter
COPYRIGHT OFF.
COMPENDIUM]
Ephemeral
For purposes of enforcing Section 112 of the Copyright Act of
37 C.F.R. § 384.2
Recording
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.
Establishment
Store, shop, or any similar place of business open to the general
17 U.S.C. § 101
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.
Food Service or
Restaurant, inn, bar, tavern, or any other similar place of
17 U.S.C. § 101
Drinking
business in which the public or patrons assemble for the primary
Establishment
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.
Gross Square
Establishment’s entire interior space, and any adjoining outdoor
17 U.S.C. § 101
Feet of Space
space used to serve patrons, whether on a seasonal basis or
otherwise.
Infringe
To violate the exclusive rights of a copyright owner, as provided
17 U.S.C. § 501
by the Copyright Act of 1976, as amended.
License
Authorization given by a copyright owner to use their work,
BLACK’S LAW DICTIONARY
usually in exchange for payment.
(11th ed. 2019)
Musical Work
For purposes of copyright registration, original works of
COPYRIGHT OFF.
(Musical
authorship consisting of music and any accompanying words.
COMPENDIUM § 802.1
Composition)
Music is a succession of pitches or rhythms, or both, usually in
some definite pattern.
Noncommercial
A webcaster that . . .
37 C.F.R. § 380.20
Educational
Is directly operated by or is affiliated with and officially
Webcaster
sanctioned by, and the digital audio transmission operations
of which are staffed substantially by students enrol ed at, a
domestically accredited primary or secondary school,
col ege, 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.
Noncommercial
Webcaster that—(I) is exempt from taxation under Section 501
37 C.F.R. § 380.7 (which
Webcaster
of the Internal Revenue Code of 1986 (26 U.S.C. 501); (II) has
states term has same
applied in good faith to the Internal Revenue Service for
meaning as in 17 U.S.C.
exemption from taxation under Section 501 of the Internal
§ 114(f)(4)(E), but
Revenue Code and has a commercially reasonable expectation
excludes a
that such exemption shall be granted; or (III) is operated by a
Noncommercial
State or possession or any governmental entity or subordinate
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Term
Definition
Source(s)
thereof, or by the United States or District of Columbia, for
Educational Webcaster
exclusively public purposes; but excludes a Noncommercial
or Public Broadcaster)
Educational Webcaster or Public Broadcaster.
Nondramatic
Musical work that was not created for use in a motion picture or COPYRIGHT OFF.
Musical Work
a dramatic work, such as a ballad intended for distribution solely
COMPENDIUM § 802.2(A)
on an album or an advertising jingle intended solely for
performance on the radio.
Nonsubscription A service that makes noninteractive nonsubscription digital audio 37 C.F.R. § 380.7 (which
Transmission
transmissions that are not exempt under Section 114(d)(1) of
states term has same
Service
Title 17 of the United States Code and are made as part of a
meaning as in 17 U.S.C.
service that provides audio programming consisting, in whole or
§ 114(j))
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.
Originating
Noncommercial terrestrial radio broadcast station that—
37 C.F.R. § 380.30
Public Radio
(1) Is licensed as such by the Federal Communications
Station
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
(i ) In the case of a governmental entity (including a
Native American Tribal governmental entity), is
operated exclusively for public purposes.
Perform
To recite, render, play, dance, or act a work, either directly or
17 U.S.C. § 101
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.
Performing
Association, corporation, or other entity that licenses the public
17 U.S.C. § 101
Rights Society
performance of nondramatic musical works on behalf of
(a.k.a.
copyright owners of such works, such as the American Society of
Performing
Composers, Authors and Publishers (ASCAP), Broadcast Music,
Rights
Inc. (BMI), and SESAC, Inc.
Organization)
Phonorecords
Material objects in which sounds, other than those accompanying 17 U.S.C. § 101
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
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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
For purposes of enforcing Sections 112 and 114 of the Copyright 37 C.F.R. § 380.30
Broadcasters
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).
Public
To perform a work at a place open to the public or at any place
17 U.S.C. § 101
Performance
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.
Publication
Distribution of copies or phonorecords of a work to the public
17 U.S.C. § 101
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.
Report of Use
Report required to be provided by a Service that is transmitting
37 C.F.R. § 370.1
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.
Royalty
Compensation to the owner of intellectual property for the right BLACK’S LAW DICTIONARY
to use the work, often paid per copy made or sold.
(11th ed. 2009)
Service
Entity engaged in either the digital transmission of sound
37 C.F.R. § 370.1
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.
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Term
Definition
Source(s)
Sound
Works that result from the fixation of a series of musical,
17 U.S.C. § 101
Recordings
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.
Statutory
A license created by law that allows others to make specified
BLACK’S LAW DICTIONARY
License
uses of copyrighted material without the explicit permission of
(11th ed. 2019);
the copyright owner in exchange for a specified royalty. Because
COPYRIGHT OFF.
the copyright owner must grant a license, statutory licenses are
COMPENDIUM § 101.3(D),
sometimes called “compulsory licenses.” In some instances, a
Glossary at p.3
compulsory license has a statutory rate. In other instances, the
rates are negotiated or set by the CRB.
Transmit
To communicate a [P]erformance by any device or process
17 U.S.C. § 101
whereby images or sounds are received beyond the place from
which they are sent.
Work Made for
A work: (1) prepared by an employee within the scope of his or
17 U.S.C. § 101
Hire
her employment; or (2) special y 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.
Webcaster
A person or entity that has obtained a compulsory license under
Small Webcaster
Section 112 or 114 [of the Copyright Act of 1976, as amended]
Settlement Act of 2002,
and the implementing regulations therefor to make eligible
P.L. 107-321, § 4(E)(i i)
nonsubscription transmissions and ephemeral recordings.
(codified at 17 U.S.C. §
114 note).
Noninteractive, nonsubscription service streaming music over
Public Performance of
the internet.
Sound Recordings:
Definition of a Service, 65
Fed. Reg. 77,292, 77,296
(Dec. 11, 2000).
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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 rol ).
1914
Composers found the American Society of Composers, Authors, and Publishers (ASCAP) to issue
and col ect 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).
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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 Mil ennium 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
Dana A. Scherer
Legislative Attorney
Specialist in Telecommunications Policy

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