WASHINGTON -- America’s performing rights organizations have mounted a broad campaign in the courts and Congress to expand the definition of "public performance." The goal is to ensure that artists and publishers are paid a copyright royalty whenever music is sold or played online, even if the occasion is purely promotional or was previously considered private consumption.
If the PROs succeed, consumers would pay a music copyright fee every time they buy a ringtone of a licensed song for their cellphones. And they would pay another, separate fee every time they subsequently listen to that purchased ringtone. Consumers would also pay a fee every time they listen to a 30-second online sample before purchasing a copyrighted tune on iTunes or Amazon.
Consumers would pay fees for listening to streaming audio download transmissions used in Internet radio formats, as well, and pay a fee every time they view or purchase a downloaded movie or TV show (assuming the audiovisual work in question has copyrighted music on the soundtrack).
Under current law, consumers (and/or music providers and buyers) already pay mechanical and synchronization rights in most of the above instances. But until now these cases have been considered private consumption rather than public performance -- more like watching a TV show at home, rather than hearing a song played over the loudspeakers at a ballpark.
Accordingly, public performance copyright fees have not applied to such uses, or have been very limited. The PROs, which include ASCAP, BMI and SESAC, want to change that. They lost an opening round in federal court this month, but the main event will take place on Capitol Hill when lawmakers decide whether to change U.S. copyright law to provide a broader definition of public performance.
On Oct. 14, a U.S. District Court ruled against the American Society of Composers, Authors and Publishers on a case involving ringtones. ASCAP had sued Verizon Wireless over music copyrights for ringtones that it sells to users of its phones and network.
A mechanical copyright fee was already built into the consumer’s purchase price, but ASCAP wanted consumers to pay an additional fee every time a ringtone played to signal an incoming call, arguing this constituted public performance. The judge said Verizon proved to her satisfaction that ASCAP was wrong.
But the PROs have launched their main campaign for expanded public performance rights and fees in Congress. On March 10, a coalition of music trade groups, which includes the National Music Publishers Association, sent a letter to Rep. John Conyers (D-MI), chairman of the House Judiciary Committee. The letter asked Congress to grant the music industry a "Performing Right in Audio-Visual Downloads," arguing that such an expansion of the definition of public performance would bring U.S. copyright law into conformity with those in other countries.
In the letter, music industry members noted that public consumption of entertainment programming is shifting from mass-market -- open-airwaves broadcast and cable transmission -- to individual Internet downloading, which is considered private consumption and does not generate a public performance royalty. The PROs are concerned that as this shift from mass-market to individual consumption accelerates, less money will be paid to artists, composers, arrangers and publishers.
"Copyright should be technology neutral," the coalition argued in its letter. "We believe Congress intended the current law to be platform neutral."
Critics say the PROs are simply losing a turf battle as public performance channels lose ground to private consumption technologies, and that the music industry is guilty of trying to "double dip" when its members are already getting paid mechanical and synch royalties.
Defenders of the PRO's initiative say the music industry is losing money that it is rightfully owed. Musicians cannot afford to keep working for relatively trivial sums that accrue from many digital performance applications under current copyright law and practice, they claim.
To date, no hearings have been set and it appears that no specific legal language has been drafted to amend current U.S. Copyright Law as desired by the PROs. The coalition’s March 10 letter said that the PROs "look[ed] forward to working" with congressional staff on the issue.