News broke yesterday that the US Department of Commerce has declared its support of the Performance Right Act, which would compensate performing artists and sound copyright holders for the over-the-air broadcast of their work.
In a letter to chairman of the Senate Judiciary Committee chairman Sen. Patrick Leahy (D-VT.), Commerce general counsel Cameron Kerry stated that a performance right for terrestrial radio would provide "fair compensation to America's performers and record companies," and that it is "a matter of fundamental fairness to performers." According to the statement, the right would also "provide a level playing field for all broadcasters to compete in the current environment of rapid technological change, including the Internet, satellite and terrestrial broadcasters."
Currently, terrestrial radio broadcasters have an exemption that means they don't have to pay the performing artist or sound copyright owner (usually the label, but it can also be the artist) for over-the-air spins. It's important to remember that there's already a performance right for digital broadcasts, including webcasters, satellite radio and those non-video music channels on the high end of your cable TV dial.
In other words, when you hear Aretha Franklin singing "Respect" on regular radio, she doesn't receive any money, but Otis Redding's estate (he wrote the tune) and the publisher get paid. Pretty much the rest of the world has a performance right for terrestrial radio — notable exceptions include Iran and North Korea.
The debate about paying performers for airplay is an old one, but things are really starting to heat up lately. There's been some feisty — and, to be honest, contentious — back-and-forth between the National Association of Broadcasters (who vehemently oppose a performance right) and the MusicFIRST Coalition (a pro-performance right group whose members include indie and major labels, musicians unions and individual artists).
We're not gonna get into the whole "he-said/she-said" debate, so instead we'll tell you why we have always supported a performance right for terrestrial radio.
First of all, it would compensate performing artists directly. The money owed to the artist goes straight to the artist — it doesn't get held by the record company against the artists' debt to the label. This is a major advancement in artist compensation that didn't exist until the performance right for digital was enacted in 1995. And remember, there are an increasing number of artists who own their own sound copyrights, and even more whose masters will revert back to them at some point. Think of it this way: if you're the songwriter, performer sound copyright owner and you control your own publishing, that's the whole royalty pie.
There are a lot of artists who may not get airplay here in the states (a whole bunch of jazz and r&b musicians come immediately to mind) that do get broadcast in, say, Europe. Yet these American performers — some of whom are unable to tour and could certainly use the extra income — don't get to collect the revenue earned from these plays. Why? Because the US lacks a "reciprocal right" with pretty much the rest of the world. It's hard to imagine any other industry where the labors of American workers are given away to the rest of the world for free.
Then there's the fact that terrestrial radio gets an unfair advantage compared to other broadcast mediums. Webcasters are doing incredible work in breaking new artists even as commercial radio playlists become more conservative — why should over-the-air broadcasters get a pass? Here at FMC, we're big on level playing fields — if terrestrial radio pays performers, it might spur them to be more competitive, which would hopefully mean more focus on local and independent music on the airwaves. Hey, we can dream, right?
But back to the Deptartment of Commerce letter. A lot of folks are saying that this demonstrates that the Obama administration backs the Performance Right Act. Well, they certainly don't oppose it. Keep in mind that administrations (and Commerce Depts) since the '70s have supported a performance right for terrestrial radio, so this stance isn't exactly new. Still, if you believe like we do that performing artists deserve to be compensated for their work, it's welcome news.
As always, we'll be keeping a close eye on this issue. For more information on what a performance right would mean for musicians, have a look at our handy fact sheet. And why not hear it from the artists perspective? The amazing Erin McKeown recently did a blog post on this very issue — check it out here.