Defending Against Songwriters' Efforts to Legislate Double-Dip Royalties
For more than a decade songwriters and music publishers have asserted that public performance rights apply (under current law) or should apply (through “clarifying legislation”) to all transmissions of music, regardless of whether the transmission results in performance that is actually rendered in an audible fashion that can be heard, or is instead merely a digital file that resides on a storage medium to be (perhaps) performed privately at some time in the future. These efforts have been rebuffed repeatedly, most recently by a U.S. District Court in New York that ruled against ASCAP’s claim that digital downloads of sound recordings implicate the public performance right.
In a recent recent letter, songwriter and music publisher representatives requested legislation to expand the scope of the public performance right so that it will apply to digital downloads of audiovisual works.
DiMA Position
Current law states clearly that public performance rights are implicated only if a composition is actually performed (in a manner that is audible), and if such performance is public. The delivery of a music or audiovisual download is a transmission which substitutes for a traditional physical product such as a CD or DVD, and producers of downloads are obligated to pay synchronization and distribution royalties to songwriters and music publishers, but should not also be required to be double-dip performance royalties when either no performance occurs, or any performances occur after the delivery and are private performances of a reproduction that is in the possession of the consumer.
In a responsive letter, DiMA and six technology/entertainment industry organizations urged Congress to reject this legislative proposal.
Status
Songwriter/music publisher organizations are continuing to seek Congressional support for their proposal, and are requesting introduction of legislation. The House Judiciary Committee is considering holding a hearing on this issue.
Resources
1995 Report on Intellectual Property and the National Information Infrastructure Copyright law section. See page 70 for performance rights discussion.
2001 Copyright Office Section 104 Report and Hearing Transcript Relevant pages: 162-169
March 10, 2009 Letter to Chairman Conyers and Ranking Member Smith
April 30, 2009 Letter to Chairman Conyers and Ranking Member Smith
DiMA Public Performance Amicus Brief
December 2001 House Judiciary Committee Hearing