What’s a public performance?
p2pnet news view Music:- What, exactly, is the definition of a public performance?
Composers, music publishers, and songwriters want to know so they can get more out of music.
And they want the US congress to do their work for them.
They’ve, “told federal lawmakers that regardless of whether music is distributed to consumers via TV, DVDs or digital download, they need legislative help to ensure they get their fair share,” says CNet News.
The story quotes David Israelite, president and CEO of the National Music Publishers Association, in a March 10 letter to members of the Senate Judiciary Committee sent by “trade groups representing songwriters, composers, and publishers” and including Broadcast Music (BMI), the American Society of Composers, Authors & Publishers (ASCAP), and Songwriters Guild of Americ.
Addressed to entertainment industry stalwarts John Conyers and Lamar Smith, it’s below »»»
Dear Chairman Conyers and Ranking Member Smith:
We are keenly aware of your deep appreciation of the central role that has been played by intellectual property in driving the U.S. economy; that the creation of American music has spread American culture to the far corners of the globe, and at the same time earned significant amounts for the U.S. in our increasingly globalized economy. In fact, America’s music remains one of the bright spots in our balance of payments. We thank you for all of your past support on behalf of the over 750,000 songwriters, composers and copyright owners who are concerned about the continued economic viability of songwriting and composing in America. Your legislative actions consistently have shown a commitment to a strong copyright regime conducive to continuation of our success in this creative part of the world economy. We know, too, that you are committed to fairness as legislation is considered in the area of copyright. We suggest that the concern for fairness also should apply to providing America’s music creators with rights equivalent to those enjoyed by their counterparts in other countries with strong copyright regimes.
To that end, we respectfully present for your consideration the following description of two of our legislative priorities in the 111th Congress. While there are two priorities listed below that reflect the urgent needs and concerns of songwriters, composers and music publishers, the most important of the following priorities is the Performing Right in Audio-Visual Downloads.
While there are two priorities listed below that reflect the urgent needs and concerns of songwriters, composers and music publishers, the most important of the following priorities is the Performing Right in Audio-Visual Downloads.
Performing Right for Musical Works in Audio-Visual Downloads:
“Public performance” and “distribution of copies” are two distinct rights granted to copyright owners, providing two separate revenue streams on which they depend for their livelihoods. Technological changes, however, have blurred the differences inherent in the methods of delivery of copyrighted entertainment programming, including audiovisual entertainment, to consumers. Songwriters and composers now receive public performing right royalties for their musical works when they are transmitted as part of audiovisual broadcast and cable programming. However, as delivery of such content shifts to online platforms, and often in the form of transmissions via digital downloads, these music creators are concerned that they will not receive compensation for the performances of their works as they would from broadcast, satellite and cable distribution. The mere choice by a consumer to view his or her favorite movie or television show in a non-linear, time- or space-shifted fashion, whether “streamed” online or from a downloaded digital file accessed while commuting or viewing in a coffee shop, should not determine whether a songwriter or composer of the music accompanying such programming receives public performing right royalties. This is a critical issue because public performing right royalties comprise the largest source of compensation for most of our professional songwriters and composers of musical works. And, it is an especially serious matter with respect to television programs and movies, because songwriters and composers do not receive “mechanical” royalties when audiovisual works containing their music are distributed. If a public performing right is not recognized in the digital delivery of such program files, songwriters and composers may receive no royalties at all.
There is no question that copyright should be technology neutral. Technology should not be used to strip rights from songwriters, composers and music publishers. The choice of certain audiovisual delivery systems or methods over others should not result in a diminution of creators’ rights or royalties. A federal trial court recently held, however, that there is no copyright protection for the public performance right when a work containing music is digitally transmitted for future playing or viewing. It has been and continues to be our position that all transmissions implicate the public performing right, and we are optimistic that this right will be vindicated on appeal and the original intentions of the 1976 Copyright Act be fulfilled. 1 However, the ruling presently poses grave risks of unintended consequences to the livelihoods of songwriters and composers of the musical works embodied in or accompanying audiovisual works. Accordingly, a clarification to the copyright law that articulates that the public performing right is implicated in digital downloads of motion pictures or other audiovisual works embodying a musical composition is necessary to ensure compensation for songwriters and publishers of such works, and to promote “platform parity” between the various competing services. We believe Congress intended the current law to be platform neutral. The conflicting interpretations demand clarification, for without it, performing right income of songwriters, and composers of the musical works embodied in or accompanying audiovisual works.
Accordingly, a clarification to the copyright law that articulates that the public performing right is implicated in digital downloads of motion pictures or other audiovisual works embodying a musical composition is necessary to ensure compensation for songwriters and publishers of such works, and to promote “platform parity” between the various competing services. We believe Congress intended the current law to be platform neutral. The conflicting interpretations demand clarification, for without it, performing right income of songwriters, composers and publishers is seriously threatened, as is the incentive that has placed America’s music at the pinnacle of world popularity. Moreover, the clarification would ensure that U.S. copyright law moves closer to harmonization with foreign laws and treaty obligations – which overwhelmingly provide copyright protection for this right. If U.S. law does not provide this copyright protection, foreign performing right organizations may very well claim that they are not required to pay U.S. songwriters and composers, since their creators are not paid when their works are performed in the U.S. It is important to note that the RIAA has informed Congress by letter of May 14, 2008 (copy attached) that, in the interests of supporting harmonization of U.S. law with international practices, it would not oppose such legislation if it were to be proposed.
Protections for Copyright in any Government Effort to Expand Broadband Service:
Much attention is being paid by both the government and private interests to the need for “building out” the Internet to accommodate new broadband services. While a robust and widely available broadband Internet is a laudable and important goal, we must not ignore that an unintended and highly negative by-product of providing faster and greater connectivity could well lead to a significant increase in already rampant Internet piracy. As Congress addresses the issue of broadband expansion, we strongly urge that proper intellectual property and technological protection for songwriters and music publishers be incorporated into any such legislation.
We look forward to working with you and your staff on these important issues and on other legislation when necessary to protect the interest of the songwriters, composers and music publishers.
1 In particular, the legislative history sets forth the intended definition of a public performance via a transmission. As stated in the House Report: “[T]he definition of ‘publicly’ in section 101 makes clear that the concepts of public performance and public display include not only performances and displays that occur initially in a public place, but also acts that transmit or otherwise communicate a performance or display of the work to the public by means of any device or process. The definition of ‘transmit’ – to communicate a performance or display ‘by any device or process whereby images or sound are received beyond the place from which they are sent’ – is broad enough to include all conceivable forms and combinations of wired or wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds comprising a performances or display are picked up and conveyed is a ‘transmission,’ and if the transmission reaches the public in [any] form, the case comes within the scope of clauses (4) and (5) of
section 106.” H. R. Rep. No. 94-1476, 94th Cong., 2d Sess. 64 (1976), reprinted in 1976 U.S.C.C.A.N. 5659.
Stay tuned.
CNet News – Music publishers: ‘Copyright should be technology neutral’, October 7, 2009
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October 12th, 2009 at 1:45 pm
Obushma and congress is gonna love this and sign it into law without any public discussion or debate as usual.
October 12th, 2009 at 2:18 pm
lets all say goodbye to the u.s of fucking a.
its gone about that i dont even listen to music anymore due such examples as this.
October 14th, 2009 at 9:39 am
Lets clarify the doublespeak.
As to:
“concerns of songwriters, composers and music publishers” it would have been more truthful
“100% of publishers and 1 percent of songwriters and composers”. This is because 99% of songwriters and composers get nothing or almost nothing for the performance of their songs.
Aso to
““Public performance” and “distribution of copies” are two distinct rights granted to copyright owners, providing two separate revenue streams on which they depend for their livelihoods.”
Wrong. Copies as in sheet music are no longer streams of income for 99% of songwriters and composers.
Copies as in records (CD/DVD) are really recorded performances. These are also poor streams of income for songwrites and performance. Well over 99% of songwriters and composers never get a single work performed in a rcording studio in their lifetime. Only the rigtly connected ones
have any success and can make a living from songwriting and composing.
As to
“has spread American culture to the far corners of the globe” why not say the truth, why not rephrase that to “has allowed american publishers to capture the the great music produced in the third world for the benefit of American corporations at almost no cost thus contributing to reduce our cash flow problems.
As to “American culture” and “that has placed America’s music at the pinnacle of world popularitywhy”….sure American pop has spread to the world, where it is ridiculed as being the worst in the world for the last 50 years. Remember RAP.
The incomes that songwriters and composers get can never be called “livelyhood”, unless the purpose is to make fun of these artists or collecting money in the streets and living under a bridge are great ways of making a living and living.
As to
“we must not ignore that an unintended and highly negative by-product of providing faster and greater connectivity could well lead to a significant increase in already rampant Internet piracy.”
Ah, they got it at last…. technology is overtaking copyright protections possible only in the horse and buggy era.
Which means that a new system is required to pay songwrites and composies and that system must not include the bloodsucher scheeming midlemen, the record makes, the music publishers, the broadcastes, teater owners, etc.
A PUBLIC PAYMENT SYSTEM IS THE WAY OUT OF THE ABYSS CREATED BY THE BUSINESS SIDE OF MUSIC.
October 15th, 2009 at 1:22 am
“A PUBLIC PAYMENT SYSTEM IS THE WAY OUT OF THE ABYSS CREATED BY THE BUSINESS SIDE OF MUSIC.”
In other words, if the labels and promoters refuse to pay everyone, then the PUBLIC should be made to!??
Thanks for playin’
8 0
October 15th, 2009 at 8:01 am
To Devil’s Advocate.
A public payment system means that for music, no one pays royalties for copyrights to, say publishers and other copyright holders or to record companies for digital copies of music and sheet music. That would mean huge savings to the public.
As to radio, television, theater performance, music uses would pay a reasonable amount (as a or tax) to a government fund.
Since the public would save money in front payments the public could not mind to pays some reasonable amount of the savings to (as a tax) to the government fund.
Then government would pay songwriters and performing artists through a visible to the-public, artists and songwriter but yet to be defined system.
I recently had a discussion with a performance rights organization executive about the secrecy as to which songwriter was paid what. The explanation: He said the information was confidential, meaning “we hide it so no knows what we do so no one compares the data and no one asks questions”. This is what we must defeat and an open public system is a possibility to do it. If we trust government for security, for heath, for education why not for music. We certainly don’t trust big business.