Traffic Jam on the Music Highway: Is it a Reproduction or a Performance?

The American copyright system separately protects the sounds in music recordings and the words and music of the underlying musical composition upon which they are based; separate rights are further defined for the reproduction and public performance of both the recording and the composition. The consequences of copyright fragmentation are now quite disturbing, as digital technology produces a breakdown and conflation of legal categories that were meaningful in the analog era; the same act of digital transmission can be viewed under U.S. law as reproduction and distribution of copies on the one hand and public performance or display of the work on the other. Since these rights are controlled by different parties and agents, the complexity of the system leads to a "copyright thicket". This article attempts to break the gridlock with an economic analysis based on the need for allocative efficiency, transaction minimization, administrative streamlining, and technological innovation.