On June 11, 2008, the House Subcommittee on Courts, the Internet and Intellectual Property held hearings on proposed legislation that would extend the copyright law’s performance right to radio broadcasts of sound recordings. Witnesses representing musicians testified that such a new right was needed to close a “loophole” under which radio stations did not have to pay their “fair share” to copyright holders. A 1995 amendment to the Copyright Act made digital radio transmissions subject to the performance right. However, several attempts to extend the right to traditional analog radio have failed. Now, bills are pending in both the House (H.R. 4789) and the Senate (S. 2500) to make all audio transmissions of sound recordings subject to a performance right.

When introducing the legislation late last year, Representative Howard Berman of California explained that songwriters and music publishers “rightly do get paid when their song is played on the radio, but the artist whose voice or musical talent brings in the ad revenue for the station never receives a penny from the station.” Representative Berman explained that broadcasters in almost all other countries in the world pay such a performance right, “except for China, Iran, North Korea, and Rwanda.” He also explained that cable, satellite and Internet radio services already pay a fee determined by the Copyright Royalty Board for a statutory license to broadcast music, and the proposed legislation would simply extend that to terrestrial broadcasters such as AM and FM radio stations.

In the June 11 hearings, Nancy Sinatra testified on behalf of recording artists by asking the rhetorical question, “Why is the broadcasting exemption allowed to rob us of our hard-earned income?” Thomas Lee, president of the American Federation of Musicians and speaking on behalf of a number of other musicians’ groups, said, “Radio is not the only industry that uses recorded music to make money. But it is the only one with a free pass to pay performers nothing. That’s unfair any way you cut it.”

Understandably, the broadcast industry witnesses weighed in with a very different point of view. They asserted that the performance right revenue would, under typical recording contracts, go not to the artists themselves but to record companies. In their view, the proposed legislation is little more than the recording industry’s search for “new revenue streams to make up for” the losses it has suffered with the emergence of digital technologies. Broadcaster Charles Warfield testified that, “Prior to 1995, U.S. copyright law did not recognize any right of public performance in sound recordings,” and explained that the advent of digital broadcasting brought about “very specific concerns about copying and piracy issues.” Warfield bluntly characterized the issue as follows: “The simple reality is that broadcasters are not responsible for the financial woes of the recording industry.”

Indeed, it will be telling if Congress passes in 2008 legislation extending performance rights to technologies that have been around for nearly a century—almost from the birth of audio transmission via radio waves. Commentators suggest that such a move would not fix a longstanding inequity, but would instead signal a continuing expansion of copyright law. As reported in the Winter 2008 edition of this publication, Canada is also currently struggling with the decision of whether to expand its copyright protection in what some have been calling the “U.S. style,” or to resist the trend and maintain its current balance between the rights of copyright holders and those of users.