The history of public performance rights in the US Copyright Act helps comprehend why sound recordings and musical works have different public performance rights.
As a result of an increase in illegal duplication of records and tapes in 1971, Congress passed a law granting exclusive reproduction and distribution rights to copyright holders only.
Sound recording copyright holders were denied the ability to limit public performance at that time because broadcasters and jukebox operators were opposed to any amendments in the Copyright Act that would need extra royalty payments.
Copyright Act 1976
By January 8, 1978, Congress had ordered the US Copyright Office to produce a report. In the wake of this, sound recordings now enjoy a public performance right.
The Register of Copyrights proposed that sound recordings be granted music public performance rights in that research. Congress ignored the Register’s suggestion at the time.
In the early 1990s, advances in music transmission technology allowed copyright holders of sound recordings to obtain public performance rights.
In addition to on-demand digital cable music services, record labels feared users might record digital audio transmissions, reducing the need to buy conventional sound recording mediums.
Sound Recordings Act of 1995
Until now, copyright owners of sound recordings have never been able to perform their works in public until via digital audio transmission.
No new authority to supervise digital public performances was granted to regulate over-the-air radio broadcasts.
There is no doubt that the sale of many sound recordings, as well as the careers of many performers, have benefitted both noncommercial and advertiser backed free over the air radio. The radio industry prospered as prerecorded music became available.
Copyright Act of Digital Millennium
A new law, the Digital Millennium Copyright Act, was passed in 1998 to make this right more explicit (webcasters). Websites, satellite radio stations, and cable networks that transmit audio content digitally must now pay royalties to those companies that have the rights to the audio content they broadcast.
Because of the digital nature of audio transmission, terrestrial radio stations that stream their programs online must compensate the owners of the sound recording rights. Only radio stations that transmit copyrighted sound recordings over the air must be compensated by music copyright owners.
According to the proposed public performance rights Act, analogue, non-subscription AM and FM radio stations can broadcast a sound recording without obtaining permission from or paying royalties to the copyright holder, performers, and musicians.
The bill would expand the non-subscription transmission public performance rights license to cover terrestrial broadcast stations. The new statutory license requires radio stations to pay a fee based on their revenue and whether they are commercial or not.
The proposed law also exempts certain uses of music, such as religious broadcasts and incidental music use by non-music stations.
The House bill or the proposed act divides the statutory royalty revenue among the following recipients:
- The copyright owners would get 50%
- 45% would go to the featured artist or musician
- 2.5 % to backing musicians, and
- 2.5 % to background performers and vocalists.
- Royalties would be collected and paid directly to the featured artist or band.
- Finally, the proposed royalty will not alter existing royalties paid to publishers, songwriters, and composers.
The proposed public performance rights Act would entail both financial and administrative costs, in the form of royalties for the use of sound recordings.
Events that took place recently
In April of 2015, Congressman Jerry Nadler presented an act ensuring fair play and pay for the artists. Artists in the United States, finally, were compensated for their work when it was broadcast on the radio thanks to the measure.
AM/FM recordings would have a performance right if this legislation were to pass. College and community radio have received the most protection from performance legislation to date.
In addition, the bill calls for equitable and transparent splits between creators and performers, as well as direct payments to performers. Since then, it has been introduced again in 2017.
A new public performance rights music licensing system will be debated by Congress and the NAB as they continue negotiations with the music business.
It is important for musicians to support the Fair Play Fair Pay Act and/or AM/FM radio public performance rights in Congress.