Last Congress, the House Judiciary Committee launched a comprehensive review of the Copyright Act to examine how the law is faring in the digital age and to determine if any changes are needed to reward creativity and keep pace with technological advancement. Chairman Bob Goodlatte (R-Va.) recently indicated that the review is moving to the next phase, and that he would soon bring people together to discuss potential reforms. As the committee prepares to take action, it is increasingly clear that music licensing reform must be at the top of the agenda.
If Congress were to start with a blank sheet of paper, none of us would write the law the way it stands today. Thanks to special-interest exemptions, short-term reactions to changing technologies and congressional gridlock, the law that governs royalty payments is inconsistent and unfair, disadvantaging new technologies and massively shortchanging artists and musicians.
Internet broadcasters like Pandora pay royalty rates set to reflect what would have been negotiated in the free market, while cable and satellite providers pay a lower, below-market rate under a “grandfathered” provision that predates the development of internet radio.
There is pending litigation over royalty payments to artists who recorded many of our culture’s greatest musical classics before 1972 for the likes of Aretha Franklin, The Byrds and The Temptations.
And, of course, terrestrial radio gets a free ride and an advantage over its digital competitors. Performing artists, background musicians and other rights holders of sound recordings receive absolutely no compensation when their music is played over the air on AM/FM radio. The bottom line is that terrestrial radio profits from the intellectual property of recording artists for free. Almost every other country compensates performing artists for radio play. The shortlist of countries that don’t includes Iran, North Korea and the United States. It is a disgrace that needs to be remedied, and it is well past time that we align ourselves with the rest of the free world.
That is why there is growing support for the Fair Play Fair Pay Act, legislation I introduced with my colleague, Vice Chairwoman of the Energy and Commerce Committee Marsha Blackburn (R-Tenn.), to create a uniform system where radio services compete on a level playing field, and all performing artists are fairly compensated. This bipartisan bill would, once and for all, establish a performance right on terrestrial radio, create platform parity by requiring all radio services to pay artists under a free market based standard, and ensure that legacy artists are compensated for pre-1972 recordings.
The Fair Play Fair Pay Act is supported by a broad left-right coalition of groups ranging from the AFL-CIO to the Taxpayers Protection Alliance. More and more artists, as diverse as Elton John, REM, Common, Annie Lennox and Martha Reeves, are speaking out in support of the legislation. And at a recent Fair Play Fair Pay Day on Capitol Hill, music creators led by T Bone Burnett and Rosanne Cash traveled to Washington to make clear that any action on copyright reform must ensure that all artists are fairly compensated for their work no matter when it is was recorded or where it is played. Notably, they were joined by local broadcasters. In addition, the National Federation of Community Broadcasters and the Alliance for Community Media announced their support for the bill.
Truly local broadcasters recognize that the Fair Play Fair Pay Act protects small, local and public broadcasters by capping terrestrial royalties at affordable rates. Stations with less than $1 million in annual revenue would pay $500 per year, noncommercial public radio stations would pay $100 a year, and religious and incidental uses of music would not have to pay any royalties at all. That’s right. Just $100 or $500 per year. That’s less than the cost of a trip to Washington to lobby against artists. The Fair Play Fair Pay Act is the true local radio freedom act. No longer will smaller broadcasters be used as pawns in an immoral fight.
Copyright law can be technical and complicated. But the solution can be simple. As the Judiciary Committee advances to the next stage of its copyright review, the broad bipartisan coalition in support of the Fair Play Fair Pay Act stands ready to ensure that intellectual property law rewards innovation, spurs a diverse economy and consistently upholds the constitutional rights of creators.
Nadler has served the state of New York since 1992. He sits on the Judiciary and Transportation Committees, and is a member of the Congressional Arts Caucus and Congressional Progressive Caucus.