Washington Update

June 2009


Public Performance in an Audiovisual Download – This is NMPA’s top legislative priority.  Many songwriters and composers collect a public performance royalty any time their music is included in a movie, television show, or any audiovisual work.  However, when the audiovisual work is digitally distributed as a download, no public performance royalty is paid.  NMPA is working with ASCAP, BMI, SESAC, NSAI, and SGA to ask Congress to clarify in the law that a musical work public performance royalty should be paid on Audiovisual downloads.  

No legislation has been introduced, but Chairman Conyers (D- MI) has committed to hold a House Judiciary Committee hearing.  

Constitutionality of the Copyright Royalty Board – Royalty Logic filed a motion with the DC Court of Appeals (Intercollegiate Broadcast System v. Copyright Royalty Board) claiming that the webcasting decision made by the Copyright Royalty Board (CRB) must be vacated because the CRB is unconstitutional because its creation was a violation of the “Appointments Clause” since the board was appointed by the Librarian of Congress (part of the Legislative branch) instead of the executive branch.  The Department of Justice filed a brief defending the constitutionality of the CRB, and oral arguments have been heard.  The court is expected to make its decision on this issue any day now.  This is very important because if the court rules that the CRB is unconstitutional, then all of the CRB’s decisions could be vacated, including the Section 115 rate decision.  

Because of the potential chaos in the marketplace, NMPA has asked Congress to codify our rate decision if the CRB is found to be unconstitutional.  

Sound Recording Performance Right – On May 13, 2009, the House Judiciary Committee passed the Performance Rights Act, H.R. 848, which creates a public performance right for sound recordings in terrestrial broadcast radio.  The vote was 21-9.  NMPA worked with Congressman John Conyers (D-MI), Chairman of the House Judiciary Committee and sponsor of the Performance Rights Act, and his staff to include important songwriter protection language in the bill, ensuring that songwriters are not harmed in the process of fairly compensating performers and record labels.  The next step is consideration by the full House of Representatives.  The Senate has a similar bill (S. 379) that has not yet been reported out of the Senate Judiciary Committee.  NMPA will continue to work with the Senate to make sure songwriters are not adversely affected.  
Additionally, legislation opposing the Performance Rights Act has been introduced in the form of a nonbinding resolution, The Local Radio Freedom Act (H.Con.Res 49 and S.Con.Res 14), and currently has 231 cosponsors in the House (which is a majority) and 15 cosponsors in the Senate.  The bill states that Congress should not impose any new sound recording performance fees on local radio stations.  No action has been taken on the bills.  

Digital Radio/Satellite Radio – Senator Feinstein intends to incorporate her provisions from the PERFORM Act in the Performance Rights Act this year.  Senator Leahy has asked her to lead negotiations to develop a rate standard that would apply across all music compulsory licenses.  It is Feinstein’s position that the 801(b) factors should apply to all platforms, but that 801(b) needs to be updated and modified.  NMPA submitted comments and new language that focused on changing 801(b) to reflect the 'fair market value' standard and asked that evidence outside the regulated market be considered in setting the musical work standard.  Senator Feinstein's next steps will be to hold stakeholder round table discussions of the different proposals.  

Piracy and Privacy - The House Government Reform Committee has re-launched its investigation into piracy and privacy issues (such as leaking important government files through file sharing software) and has sent letters to Eric Holder, Attorney General; John Leibowitz, the Chairman of the FTC; and LimeWire. NMPA has been in touch with the Committee staff on this issue.  The Committee plans to hold hearings eventually.

Orphan Works – Orphan works legislation passed the Senate in the 110th Congress, and Senator Leahy will push this legislation this Congress.  In the House, Chairman Conyers will be the lead on orphan works legislation (instead of Cong. Berman), and we have met with Cong. Conyers’ staff to discuss our position on orphan works and to stress that it is very important to include protections for copyright owners.

Anti-Piracy Enforcement – Combating piracy remains a top priority to the content industry, even though the PRO IP Act was enacted in 2008.  Many compromises were made to pass the bill, so we expect another enforcement bill to be introduced at some point in the 111th Congress to cover all issues that dropped off during negotiations.  We expect that Senator Leahy will continue to push for granting DOJ civil enforcement.

PRO IP Act Appropriations – We are working to secure appropriations to fund the law enforcement provisions in the newly enacted PRO IP Act.