June 17, 2009

Mike Masnick, a reliable RIAA critic, recently posted another piece about the Performance Rights Act.  The case he makes is colorful (the PRA is called both “silly” and “ridiculous” before the first graph is even finished), well written and grounded in enough truth to appear compelling, but ultimately a distorted and misleading review of the facts and history.  Masnick appears to cherry-pick the facts (or purported facts) most helpful to his argument and avoid the rest.

There’s no need to “forget” history.  We should happily review the record.  Let’s take a look at what RIAA CEO Jay Berman said about “The Performance Rights in Sound Recordings Act of 1995” at a March 9, 1995 hearing before the Senate Judiciary Committee:

“We began this process, Mr. Chairman, over 23 years ago when we sought the same right enjoyed by all other copyright owners, a full performance right.  Last Congress, this effort was limited to digital transmissions.  Today, we are seeking an even more constricted bill that applies only to digital subscription and interactive services.  It specifically excludes radio broadcasting, performances of sound recordings in bars and restaurants and other businesses, and it is subject in some part to statutory licensing.  If this is the price of gaining a minimum level of protection for the future, we are willing to pay it…

“…It is difficult to justify why the bundle of rights enjoyed by the copyright owner of a sound recording should not include a right enjoyed by all other copyright owners – the right to license public performances.  This disparate treatment and injustice have always harmed record companies and performers.  It is particularly harmful to older performers whose recordings are still popularly broadcast but whose records no longer sell.”

So, what happened?  The broadcasters sought a carve out and we grudgingly acquiesced in the interest of getting a “minimum level of protection” for digital broadcasts.  

Masnick likes to throw in “RIAA” or “Recording Industry” in headlines to generate clicks.  Fair enough (we too have signed up for RIAA Google alerts!).  But, who does this bill really help?  Read the actual language:  50 percent of the royalties would flow directly to the artist; 50 percent to the copyright owner, which is often the record label, but can also be the artist (for example, Billy Corgan, who testified in support of the PRA earlier this year, owns the rights to Smashing Pumpkins songs.  For the case of indie labels, who make up some of the lead members of the coalition supporting this bill through their trade organization A2IM, they often share ownership with the artist.  So, the overwhelming majority of these royalties would flow to artists.

Speaking of artists, yes, this legislation would benefit Britney Spears.  But more importantly, it would finally provide some recognition to the slew of Motown greats whose hits have been routinely played on radio but who earn nothing and who derive little promotional value from radio airplay (see Berman comments above for further proof).  Or performers like Jack Ely, 65, who’s never seen a dime from radio stations airing his “Louie Louie” for more than 40 years.  Or any one of the thousands of other artists who support this bill.  Are we so blinded by the fact that because a famous artist might earn a return that industry critics reflexively oppose ANY fair compensation for the thousands of other working-class musicians and label employees who help bring music to life and help radio earn billions?  

Again, if you read the bill, it specifically calls on a Copyright Royalty Board to examine the promotional value of radio airplay in determining what a fair royalty rate should be.  We don’t discount the promotional value of radio.  But can we reasonably conclude that the precise value of radio airplay is exactly equal to the $16 billion in advertising that radio stations earned from playing music last year?   That makes no sense.  All we are asking for is a basic right, a right that exists in virtually every industrialized country in the world and a right the music community has sought for some 80-plus years.

Jonathan Lamy