When the owner of a public space plays recorded music, she must obtain a license for the public performance of the copyrighted musical work. American copyright laws require the owner to only obtain one license for the song copyright, whereas in other countries, owners are required to obtain an additional license for the recording copyright, which is considered separate from the song. However, for some American owners, even the one required license can be waived. This strange quirk of the US copyright system stems from a 1990s law that exempts restaurants smaller than 3750 square feet and shops smaller than 2000 square feet from having to obtain any license for public performances of recorded music if they play music from the TV or radio, as opposed to from a CD. The exemption was immediately met with criticism. In 2003, after the World Trade Organization decided that the US law violates international intellectual property treaties, the US paid compensation to a European songwriters fund for the lost royalties. However, the law was not repealed and no compensatory payments have been made since. A recent report found that each year, the exemption costs US songwriters $109 million and European songwriters $44 million each year in lost royalties. Songwriters have deemed this “an unacceptable negative impact on authors,” and many songwriters are now asking the European Commission to pressure the US to finally repeal the law and conform to international copyright rules.
Prudence Ng is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2019).