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Even before American music icons Sam Moore and Judy Collins had a chance to plead for a change in copyright law, the chairman of the House Intellectual Property subcommittee on Tuesday let it be known that he wants to tackle the issue.
Rep. Howard Berman, D-Calif., told a standing-room-only hearing that he wants to develop legislation that would pay performers and the record labels a royalty for music played on traditional radio.
“I’ve wanted to hold this hearing for a very long time, not only because of my constituents but because as a policy matter it is time for Congress to re-evaluate the limitations of the current performance right for sound recordings,” Berman said.
“I will come right out and indicate my bias — I have supported the expansion of the performance right for over 20 years, with two caveats: One is that by extending this right it does not diminish the rights and revenues of the creators of musical works, and second, that terrestrial broadcasters large and small remain a viable source of music.”
The U.S. is one of the few countries that exempts over-the-air radio from paying a copyright royalty to performers. Songwriters and music publishers get a payment, artists such as Collins and Moore and their labels do not.
There is a performance royalty for music delivered over the Internet, satellite and cable. The digital royalty is split 50-50 between performer and label, and a similar formula could be developed for terrestrial radio, with the first steps taken by the House Judiciary Committee and the IP subcommittee.
“This is about basic fairness and equity,” said Moore, half of the hit duo Sam & Dave. “American broadcasters earn billions playing our records. All we ask is to receive what artists in every other developed county around the world receive when their recordings are broadcast: fair compensation for the performance of our work.”
Collins showed the committee a note from songwriter Stephen Sondheim that thanked her for making “Send in the Clowns” a hit.
“It’s been a privilege to help (songwriters) make a living,” she said, “but I’d like to do that for myself.”
Radio broadcasters have a different take.
ICBC Broadcast Holdings president Charles Warfield called the royalty a “tax” on listeners and urged the committee to keep the system as is. Broadcasters contend that the promotional benefit performers and labels get from airplay is more valuable than cash.
“We oppose a performance tax because compensation to the record labels and artists is provided under the current system, and the effort to upset the careful balance, envisioned by Congress and beneficial parties for the past 80 years, is misguided,” he said. “The existing model works for one very significant reason: The promotional value that the record labels and artists receive from free airplay on local stations drives consumers to purchase music.”
Few on the committee appeared to buy the “tax” idea, and some sounded offended that the industry would make such a claim. “This is patently not accurate,” said Rep. Sheila Jackson Lee, D-Texas.
There is no legislation on the issue now before Congress, but insiders expect Berman to produce a bill by the fall. A companion bill also is expected in the Senate.
Register of Copyrights Marybeth Peters told the committee that the change needs to be made, not only to make American law fairer but also to allow artists and labels to recoup royalties from other countries. When an American song is played in France, England or Germany, artists don’t get a royalty because there is no performance right in the U.S. A performance royalty is paid to European artists.
“The U.S. has limited its obligation for protection to only certain digital transmissions and specifically has exempted over-the-air broadcasts,” Peters said. “With respect to the lack of protection for over-the-air broadcasts of sound recordings, the United States stands out as the most prominent industrialized country without this protection.”
She cited a recent industry estimate that U.S. performers and labels lose about $70 million a year in potential foreign performance royalties.
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