Jerry Bowyer

A friend of mine in the radio business called me recently to ask what I think about the "performance tax" issue. If you are a regular listener to talk radio, you've probably heard ads decrying a plan to impose a "tax on radio."

In essence, it is an imposed royalty; the government would force radio stations to cut a check to an entity, which would send those funds to record companies. A government board of Copyright Royalty Judges would send the check, as opposed to a negotiation between the businesses themselves. Most of the money would go to the record companies that distribute the music, not to the songwriters and singers who created the music.

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The law would not cover everyone, including DJs in public venues, restaurants and bars. But large commercial radio stations would pay a lot; the Congressional Budget Office estimates that short-run costs would be around $70 million, and without knowing where the government will set the royalties, it's impossible to calculate how high that number could rise. Oddly enough, Public Radio would pay only a token amount for the use of the music.

So what do I think about this? I told my friend, "I'm for free markets and property rights."

"Yeah, but some of the Republican congressman who have signed on to this idea are saying that this is property rights," he said.

I found myself wondering if any of these men and women who have taken an oath on the United States Constitution ever read the thing. The power to create copyrights, patents and other forms of intellectual property protection is granted to the Congress in Article 1, Section 8, Clause 8 of our Constitution.

"... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries ..."

Note that the founder's position on the question of intellectual property was quite clear: it belonged to the creator of the property, the "author" or the "inventor." Not to the distributor. This is not a casual textual oversight; it was a deliberate decision. They deliberately created a system, which would reward people for creating intellectual property and still encourage the widest possible dissemination of the intellectual property. Jefferson actually opposed the creation of patents and copyrights, arguing that intellectual property was different than physical property since it could be given to an infinite number of people, unlike a parcel of land, and still not diminish the amount held by the owner.

Jerry Bowyer

Jerry Bowyer is a radio and television talk show host.