Friday, April 7, 2017

Congressman Darrell Issa introduces the PROMOTE Act

By Emmanuel Legrand
Congressman Darrell Issa

More copyright-related bills have popped up in the past few days in Washington, DC than in the prior two years. "It's a great time for people in the music industry," enthused a lobbyist from the music community that we spoke to at the Grammy on the Hill event in DC on April 5. Indeed there is the feeling that after over two years of hearings, consultations, reports, the times they are a-changin' on the Hill.

First, we had the initiative from Bob Goodlatte, Chairman of the Committee on the Judiciary at the House of Representatives, with the the Register of Copyrights Selection and Accountability Act (H.R. 1695), requiring the Register of Copyrights to be nominated by the President of the United States and subject to confirmation by the US Senate.

Then came the re-introduction of the Fair Play Fair Pay Act, which calls for performance rights on sound recordings for terrestrial radio stations. And now there's the PROMOTE Act of 2017 (H.R 1914), which very much looks like a mirror to the Fair Play Fair Pay Act, since it would allow performing artists to opt out of having their music played on the radio if the performing artist is not being paid an agreed-upon performance royalty.

Fixing inequities

PROMOTE was introduced by Congressman Darrell Issa (R-Calif.), Chairman of the House Judiciary Subcommittee for Courts, Intellectual Property and the Internet along with Subcommittee member Rep. Ted Deutch (D-Fla.) and is described as a "bipartisan legislation that would fix a decades-old inequity in copyright law that allows terrestrial radio stations to play music without compensating performers." It would grant grant owners of copyright in sound recordings the exclusive right to prohibit the broadcast transmission of the sound recordings by means of terrestrial radio stations."

One observer called it "the nuclear option" for broadcasters. If the Fair Play Fair Pay Act fails to pass but PROMOTE does, radio stations could face the risk of having performers withdrawing their works from broadcasting consideration. Certainly not the best scenario.

As Congressman Issa puts it, the PROMOTE Act "calls the bluff of both sides in the debate over performance rights." He added, "The terrestrial stations playing these works without compensating the artists argue that airtime provides exposure and promotional value, while the artists argue the status-quo allows radio stations to profit on artists' performances without providing any due compensation.Our bill puts forward a workable solution that would allow those who would otherwise be paid a performance right to opt out of allowing broadcasters to play their music if they feel they’re not being appropriately compensated. This is a win-win that helps solve this decades' long problem in a way that’s fair to both parties."  

“We have been told for years that AM/FM radio provides valuable promotion to recording artists, but those artists have never been given the opportunity to decide for themselves," said Congressman Deutch. "It should be the artist’s choice whether to offer their music for free in exchange for promotional play, or to instead opt out of the unpaid use of their music."

Calling the bluff

The proposed legislation receive some positive responses from the music industry. “Kudos to Chairman Issa and Rep. Deutch, who are calling the broadcasters’ bluff on this bogus claim that ‘promotion’ somehow justifies taking music for free," said RIAA Chairman & CEO Cary Sherman. "All of radio’s competitors — who also arguably ‘promote’ — pay music creators for their work. The PROMOTE Act gets back to the basic notion of consent before property is taken. We look forward to working with the Chairman, Rep. Deutch, and their colleagues on finally resolving the performance rights loophole.”

The Executive Director of the musicFIRST coalition, Chris Israel, said: "Music creators rightly expect to be fairly compensated for their work, regardless of whether their songs are played on satellite radio services like Sirius XM, Pandora, Spotify, YouTube or AM/FM radio. Unfortunately, this is not always the case. The US is the only developed country where music creators have no say when it comes to traditional AM/FM radio stations playing and profiting from their hard work, but without receiving a dime. Congressman Issa’s PROMOTE Act addresses this glaring inequity by empowering music creators to seek fair compensation when their works are played on terrestrial radio."

The National Association of Broadcasters, which represents some 10,000 radio stations in the USA, has opposed the bill, as it did for the Fair Play Fair Pay Act. “NAB has significant concerns with this legislation that would upend the music licensing framework that currently enables broadcasters to serve local communities across the country, and would result in less music being played on the radio to the detriment of listeners and artists," said NAB Executive Vice President of Communications Dennis Wharton, who said that the NAB will continue to push for the Local Radio Freedom Act, which is supported by close to 200 Members of Congress, and "recognises the tremendous benefits of free, promotional airplay for musicians and labels."

The PROMOTE Act can be found here.

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