Maria Pallante, director of the U.S. Copyright Office, says that it is past time for the U.S. to recognize a "full public performance right for sound recordings," including bringing pre-1972 recordings under federal copyright protection. She also says it is time to make unauthorized online content streaming a felony, and to review anticircumvention exceptions.
That is according to her testimony for a hearing Wednesday in the House Judiciary Committee.
The Copyright Office made that recommendation in a report last year, which also called for greater parity among competing platforms. Music publishers argue that they are being seriously undercompensated for digital airplay on sites like Pandora .
Earlier this month, Reps. Jerrold Nadler (D-N.Y.), Marsha Blackburn (R-Tenn.), John Conyers, Jr. (D-Mich.) and Ted Deutch (D-Fla.) introduced a bill that would create a public performance right (broadcasters call it a tax).
Currently, broadcasters pay a blanket license to music rights groups, but argue that airplay is a fair exchange, and valuable compensation, for individual performances.
It also creates, or attempts to according to its sponsors, cross-platform parity for payments through a "willing seller, willing buyer" standard judges could use to arbitrate rates, and requires royalty payments for some, but not all, pre-1972 recordings not currently recognized as getting compensation.
Pallante also says changing the law to make it harder for online pirates to distribute content is "warranted and overdue."
According to the testimony, Pallante will also push for the Administration's longstanding position that Congress should make unauthorized streaming of content a felony, just as unauthorized downloads are. "Currently, criminals who engage in unlawful internet streaming can only be charged with a misdemeanor, even though those who unlawfully reproduce and distribute copyrighted material can be charged with a felony," she points out. "This distinction makes no sense."
Pallante says anticircumvention provisions—preventing workarounds to encryption and other digital protection regimes—in the law need review, but are not yet ripe for legislative action.
"Various legislative proposals have been introduced in an effort to address a number of these concerns, and last year Congress passed the Unlocking Consumer Choice and Wireless Competition Act to broaden the exemption for cellphone unlocking," she said. "It may be time for a broader review of the impact and efficacy of Section 1201 and its exemption process."
She pointed out that her office was reviewing twenty-seven proposed exemptions, "with respect to which we have so far received almost 40,000 comments from the public."
Following the hearing, the MusicFirst coalition Executive Director Ted Kalo talked about the significance of Pallante's support for a performance right bill.
"Register Pallante is an independent expert who speaks for no industry or special interest, only for good policy. Her endorsement of the Fair Play Fair Pay Act [which would establish that right] as a smart framework for overdue reform establishes a fundamental truth — this bill is a wise and critically necessary step forward to make music licensing work better for creators, radio services, and fans alike."
According to the coalition, Pallante called the lack of an AM/FM performance right "indefensible" and "embarrassing."
"The Register's words were music to musicians' ears. We wholeheartedly agree that music creators are struggling with outmoded laws that have not kept step with the digital age, and the time has come for Congress to ensure fair market pay for all music creators across all platforms," said Daryl P. Friedman, chief advocacy & industry relations officer for the Recording Academy. "Music makers have been waiting for a copyright update for decades; hundreds from the music community told Congress as much at this month's GRAMMYs on the Hill. We now look forward to working with the Committee to bring music compensation laws into the 21st century."
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