One Hundred Countries Belong to a 1961 Treaty on Paying Musicians for Airplay. The United States Is Not One of Them.

by Amara Diallo · September 2, 2026

Culture & Entertainment Writer, The Globe Ledger

When a commercially released recording is played on the radio, two different copyrights are in play. One belongs to the song as a composition — the notes and the words. The other belongs to the particular recorded performance of it. Nearly every country treats the first as generating a payment to writers and publishers. Far fewer treat the second as generating a payment to the performers and the record producer, and whether a given country does so is determined by which treaties it has joined and what it said when it joined them.

The instrument that established the second right internationally is the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome on 26 October 1961 and usually called the Rome Convention. WIPO's summary of the convention describes its Article 12 mechanism directly: where a phonogram published for commercial purposes is used for broadcasting or communication to the public, a single equitable remuneration must be paid by the user to the performers, to the producers of the phonograms, or to both.

Who is in, and who is not

The WIPO Lex database of contracting parties listed 100 members of the Rome Convention when consulted for this article on 2 September 2026. The database carries no as-of stamp of its own, which is a reason to quote the date of consultation rather than the bare number. The United States is not one of the hundred.

That absence is not an oversight of ratification backlog. It reflects a substantive gap in United States law that predates the convention's modern relevance. In a 1995 statement to Congress, the Register of Copyrights set out the position plainly: United States law does not grant a general public performance right in sound recordings, and the Sound Recording Act of 1971, which brought recordings into federal copyright, did not add one. The 1971 statute was aimed at unauthorised duplication rather than at performance.

The Rome Convention is also unusual in its administration. WIPO's summary notes that it is jointly administered by WIPO, the International Labour Organization and UNESCO, which staff an intergovernmental committee of twelve contracting states. It also restricts eligibility: only states already party to the Berne Convention or the Universal Copyright Convention may join. And under Article 16 it permits countries to lodge reservations against particular provisions, including the secondary-use payment itself — so even a party to Rome is not automatically a country where broadcast airplay pays performers.

The 1996 treaty, and the American declaration

The modern successor instrument is the WIPO Performances and Phonograms Treaty, concluded in 1996. WIPO Lex listed 115 contracting parties on 2 September 2026, the most recent accession shown being Cameroon in January 2025. Its Article 15(1) restates the Rome principle in almost the same terms: performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public.

Article 15(3), however, allows any contracting party to file a notification with the Director General of WIPO declaring that it will apply paragraph (1) only to certain uses, or limit it in some other way, or not apply it at all. WIPO's summary of the treaty adds the consequence: where a country makes such a reservation, other parties may deny it reciprocal national treatment.

The United States ratified the WPPT on 14 September 1999, with entry into force for it on 20 May 2002, according to WIPO Lex. The WIPO notification recording that ratification also records a declaration made under Article 15(3). In it the United States stated that it would apply Article 15(1) only in respect of certain acts of broadcasting and communication to the public by digital means for which a direct or indirect fee is charged, together with other retransmissions and digital phonorecord deliveries, as provided under United States law.

So the United States is a party to the treaty containing the airplay payment, and simultaneously on record as not applying it to broadcasting generally. Both statements are accurate, and neither is a loophole in the ordinary sense — Article 15(3) exists precisely so that states in this position can join.

What the domestic statute says

The declaration tracks American law closely. The Digital Performance Right in Sound Recordings Act of 1995 added a new exclusive right at section 106(6) of the Copyright Act: in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. The right was created narrow. Section 114(d)(1) immediately limits it, listing categories of transmission that are not an infringement of section 106(6), and the first of them is a nonsubscription broadcast transmission — which is what an ordinary over-the-air radio station makes.

The citation for that exemption is worth getting right, because it has moved. As the 1995 Act was passed, the nonsubscription broadcast transmission sat at section 114(d)(1), subparagraph (A), clause (iii), alongside two other clauses. In 1998 that whole subparagraph was struck out and replaced: the current United States Code carries the exemption at section 114(d)(1)(A) with no internal clauses at all. Anyone checking the older citation against today's statute will not find what the older citation described, though the exemption itself came through the rewrite intact.

The design has not changed either. This is a right defined by transmission technology rather than by the act of public performance, so that a digital subscription transmission can trigger a payment while a terrestrial broadcaster playing the identical recording to a larger audience does not.

The reciprocity effect

The consequence reaches beyond American borders, and the Register of Copyrights identified it in 1995 while the digital right was still a bill. United States performers and producers would benefit, the Register wrote, if Congress granted public performance rights in their sound recordings, enabling them to claim their fair share of foreign royalties. She was careful about how far a narrow right would get them: because the House bill was narrower than the Senate's, she noted, it was even less clear whether so limited a right would qualify American authors for royalties on performances of their works, where payment is based on reciprocity.

The underlying mechanism is set out in WIPO's own summary of the WPPT rather than in the Register's statement: where a Contracting Party makes a reservation, the other Contracting Parties are permitted to deny it national treatment, to the extent of that reservation. Reciprocity is a permission granted to the other states, not an automatic penalty, and what any individual collecting society does with that permission is a matter of national law and its own rules.

That money is not trivial as a category, though it is a minority of the industry. IFPI's Global Music Report 2026 puts global recorded music trade revenues for 2025 at US$31.7 billion, up 6.4 per cent, and separately reports performance rights revenue of US$2.9 billion, up 0.3 per cent and in its fifth successive year of growth. IFPI puts streaming above US$22 billion, or 69.6 per cent of the global total, on 837 million paid subscription accounts. All of those are IFPI's own figures for 2025, published in 2026. Performance rights are therefore roughly a tenth of the business as IFPI measures it, and among its slowest-growing lines — but they are the line most directly determined by treaty membership rather than by consumer behaviour.

What this is not

Two clarifications matter. First, none of this means American radio pays nobody. Composition rights are governed by a separate framework, and songwriters and publishers are paid for broadcast airplay in the United States as elsewhere. What is absent is the payment to the performers on the record and to the producer of the recording.

Second, the Rome Convention and the WPPT are not enforcement bodies. Neither WIPO nor the ILO nor UNESCO collects a royalty, audits a broadcaster or penalises a state. They administer texts, maintain the register of who has joined and what they declared on joining, and provide the legal reference against which national collecting societies decide whom to pay. The operative machinery is entirely national. The treaties simply determine which national machinery is obliged to point outward — and, in the case of a declaration under Article 15(3), which is not.