The unconstitutionality of PRA


The US Constitution addresses copyright law, and it codifies the protection of intellectual property for the benefit of the creator, whether that person is known as author, poet, composer or inventor. It says nothing about protecting the rights of distributors. So why, asks Jerry Bowyer at, are recording companies getting half the take of the Performance Rights Act?

Bowyer refers back earlier than the Constitution, to English Common Law. If Person A got Person B to take dictation of a poem on somebody else’s piece of paper, Person A may not own the paper but still owns the poem.

The recording companies are likened to stenographers. The artists creates and performs the music; the recording company simply preserves it as a stenographer would, using some form of recording equipment rather than a quill and ink as might have been used in the English Common Law poem example above.

The recording companies, which put the recording on plastic, can then sell the plastic, but one way or the other the royalty on the intellectual property goes to the creator.

Bowyers credits James Madison for getting this concept into the Constitution, and observes that “…the Madisonian concept of copyright holds that if you want to encourage people to create new music, then you pay those people directly, for a limited time, for the right to use it and not grant a monopoly to any one distributor. That way the incentives exist for both the creation of intellectual property and for its widest possible propagation.”

He said the PRA model does nothing to incentivize the creation of new music, it would in many cases simply transfer money from radio companies to recording companies for the right to play music that was written long before PRA existed.

RBR/TVBR observation: We have always felt that the Act should be called the International Conglomerate Welfare Act or something, and it is interesting to learn that the Founding Fathers would tend to agree. Should PRA pass into law, opponents, it will be time to start your attorneys and take it down in the courts, all the way to SCOTUS if necessary.