Popular Radio, July, 1922, pages 208-210:
DOES BROADCASTING A SONG CONSTITUTE
"A Public Performance for Profit?"
If so "Who Will Pay the Piper"?--and How?--Ask the Music Publishers, Authors and Composers
By E. C. MILLS
DOES the singing of a song over the radio--more particularly the singing of a song of which the words and music are copyrighted--constitute a "public performance"? And if it does, is that performance "for profit"? And if it is for profit, who makes that profit and can the owner of the copyright collect payment for such a public performance?
These are only some of the questions that the amazing development of the radio and the extension of broadcasting programs have raised so suddenly that the song-writers and publishers have scarcely had time to determine just how their legal rights as well as their pocket books are being affected. According to the opinion recently rendered by Nathan Burkan of the American Society of Composers, Authors and Publishers, the singing of a copyrighted song by radio does in effect constitute a public performance for profit, and the owners of the copyright are entitled to revenue therefrom. Just how royalties may be collected, however, has not yet been determined.
A copyright on a song (or on any musical composition) vests in its proprietor three distinct rights:
(1) The right to print and multiply printings of the work;
(2) The right to control the mechanical reproduction thereof (such as phonograph records and player-piano rolls), and
(3) The right to publicly perform or license the public performance (for profit) of the copyrighted work.
All of these rights are exclusive.
These rights are based upon the Copyright Act of 1909; it and the preceding Acts granting Copyright having been enacted pursuant to a clause in the original Constitution of the United States which provides that Congress should have the power, for the encouragement of the arts and sciences, to enact such legislation. The broadcasting by radio of concerts, for the entertainment of thousands (and soon, apparently millions) of owners of receiving apparatus, is, in the opinion of the authors, composers and publishers, a public performance for profit.
It is true that the listeners-in on these concerts do not pay to the broadcasting stations any fee for the service; nor does it seem immediately practicable to arrange any basis upon which broadcasting stations might charge a fee to the owners of receiving apparatus.
If broadcasting is to be continued however, it is obvious that it must pay commercial profits to those who operate the stations. Under the present conditions these profits must flow from the sale of receiving sets. If broadcasting does not pay as a commercial enterprise, it will be discontinued. As an alternative, it may be supported by the municipal, state or Federal governments.
If broadcasting pays as a commercial venture of a private concern, and the broadcasting of copyrighted musical compositions constitutes a part of its service, then obviously the music that is being used for purposes of profit and those who create such music are entitled to share in such profits.
Radio has developed in such an amazing and spectacular manner that it promises to become the greatest factor the world has ever known for the dissemination of information and education of the whole people. The position of musical copyright proprietors, including authors, composers and publishers, is now and will be in the future to lend their support to any cause or purpose which promises so much for mankind's benefit, and they therefore do not oppose radio, nor would they handicap or hamper its logical development.
On the other hand, the widespread use of music in broadcasting is bound to affect the earnings of the authors and publishers, it is even now decreasing them materially and promises to do so to a much greater extent. Fair and just recognition of the music writers of the country will make it necessary that they be reimbursed in some way by the radio which at present is reducing their earnings.
A basis for the charging of royalties upon such copyrighted music as is used in these broadcasted concerts has not yet been worked out. The copyright owners have felt that they should not place any obstacle in the way of the development of this art which promises so much. But in due course a plan for charging the broadcasting stations for the use of the product from which they derive their profit will presumably be worked out.
If the contention of the music publishers that the broadcasting of copyright music in the prevalent manner is a "public performance for profit" is correct, then a technical infringement of copyright is committed every time such a composition is broadcasted without a license from the copyright proprietor. The publishers are in communication with the various broadcasting station proprietors, and have every reason to believe that their position in the matter is one of entire fairness, and that they will frankly recognize the rights of copyright proprietors in this matter and work out a plan of compensation on a fair basis.