Statement of Marybeth Peters
The Register of Copyrights
before the
Committee on the Judiciary

United States Senate
111^th Congress 1^st Session

August 4, 2009

The Performance Rights Act and Parity among Music Delivery Platforms

I appreciate the opportunity to submit my views in support of S.379, the Performance Rights Act. I believe that this legislation is long overdue and I urge the Committee to approve it. The Copyright Office has a long history of recommending extension of full performance rights to sound recordings.¹ While S.379 would not give sound recordings full performance rights similar in scope to those given to other categories of works, it would expand the performance right by requiring broadcasters to compensate performers and sound recording copyright owners for broadcast performances of sound recordings. Such an expansion is fully justified.

In 1995 Congress passed the Digital Performance Right in Sound Recordings Act of 1995 ("DPRA")² which, for the first time, granted to copyright owners of sound recordings a limited public performance right. While this was a good first step toward recognizing a public performance right for sound recordings, the scope of this right is not nearly as extensive as the scope of the public performance right we offer to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. Our treatment of the public performance right for sound recordings falls short of prevailing international norms as well. The United States is probably the only industrialized country that does not recognize performance rights for sound recordings, including performances made by means of broadcast transmissions.

In 2007, I urged Congress to expand the scope of the performance right for sound recordings to cover all analog and digital transmissions, including over-the-air transmissions, by broadcasters. I explained why the current exemption for terrestrial broadcasters is not justified in this day and age and recognized the need to establish parity among those commercial competitors who depend upon the use of sound recordings. I concluded that the best approach would be to grant copyright owners of sound recordings a performance right for all audio transmissions, both digital and analog, subject to a statutory license.³ That is the approach taken in the proposed Performance Rights Act.

I would be pleased to assist the Committee in any way as it considers legislation that will address this important issue.

1 For an account of the history of the efforts to recognize a public performance right for sound recordings and of the Copyright Office's recommendations on that issue over the past several decades, see Internet Streaming of Radio Broadcasts: Balancing the Interests of Sound Recording Copyright Owners with Those of Broadcasters, Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Property of the H. Comm. on the Judiciary, 108th Cong. 8-22 (July 15, 2004) (statement of David 0. Carson, General Counsel, Copyright Office), also available at http://www.copyright.gov/docs/carson071504.pdf.

2 Pub. L. No. 104-39, 109 Stat. 336 (1995).

3 Ensuring Artists Fair Compensation: Updating the Performance Right and Platform Parity for the 21st Century: Hearing Before the Subcomm. on Courts, the Internet, and lntellectual Property of the H. Comm. on the Judiciary, 111th Cong. 13-30 (July 31,2007) (statement of Marybeth Peters, Register of Copyrights), also available at http://www.copyright.gov/docs/regstat0173107.html.