Yesterday, the Subcommittee on Courts, the Internet and Intellectual Property held a hearing about whether, and how, artists should be compensated when their works are performed on the radio. As much as the prospect of a scintillating debate about performance rights and statutory licenses can draw a crowd, I'm guessing that the pull of star-power may have made the room a little more crowded…
Singer/songwriters Judy Collins, Sam Moore, and Paul W. Hodes (D-NH), spoke on behalf of recording artists, and argued in favor of artists being compensated when their work is performed over terrestrial radio. As Judy Collins said, “People love music, not commercials,” and gave a brief, impromptu performance of “Amazing Grace” to show how performances bring songs to life. Sam Moore mentioned several of his colleges who had gone from topping the charts to being unable to pay for medical bills several decades later as a result of not being properly compensated for their work, and highlighted how incredibly successful artists can still have difficultly making ends meet.
The panelists speaking on behalf of artists argued that they should be compensated for their performance rights, which is one of many rights that a musician or recording company may have (in addition to the rights in the recording and the rights in the composition of the work itself). Though other platforms such as satellite and internet radio are required to pay the statutory performance fees, terrestrial radio has historically been grandfathered out of paying the fees because the performance right came into existence after radio broadcasts.
Charles Warfield, President and COO of ICBC Broadcast Holdings spoke on behalf of broadcasters, and asserted that the broadcaster's exemption has been in place for years, and there is no reason to change it. He cited a report produced by Critical Mass Media that concluded that of those using any audio medium, more spend over two hours a day listening to FM radio, and claimed that since artists are promoted for free over the air, which boosts record sales, broadcasters should not be required to pay a “tax” for playing their songs.
Marybeth Peters, the Register of Copyrights supported the radio broadcasters paying some kind of performance royalty. She noted that many other countries have systems where artists are compensated for their performances depending on the size of the broadcasting entity and the frequency with which a song is played, and assured the Subcommittee that artists could, and should, be paid reasonable statutory fees for their work. She said that such a statutory framework could easily be designed so that smaller broadcasters wouldn't be forced to go out of business, and artists would still be properly compensated.
Throughout the hearing, some representatives expressed twinges of regret for the encumbered, outdated stack of statutes that has become our current copyright regime. The general consensus is that if copyright law were written from scratch today, it would not resemble the system that we have now. Since re-writing copyright law from scratch seems to be out of the question, examining it and working to adapt it to the 21st century may be the next best thing.
Stay tuned, Sherwin will be posting some of his thoughts on the topic soon.