Yesterday (August 4, 2009, in case you need a refresher), FMC attended a Public Performance Hearing before the Senate Judiciary Committee. Well, we're back from the Hill ready to report as promised.

In their opening comments, Senator Diane Feinstein and Chairman Pat Leahy affirmatively expressed that the Senate supports the bill. "This is going to be legislation," Leahy warned opponents of the bill. "It will move."Yesterday (August 4, 2009, in case you need a refresher), FMC attended a Public Performance Hearing before the Senate Judiciary Committee. Well, we're back from the Hill ready to report as promised.

Just a little background: The Performance Rights Act would remove an exemption allowing terrestrial radio broadcasters to play music without compensating performing artists and sound copyright owners. A Public Performance Right for terrestrial radio would compensate performing artists and would also remove the unfair advantage terrestrial radio has over emerging digital broadcast technologies that do have to pay royalties to performers. Equally important, it would allow US performing artists to collect for overseas terrestrial broadcasts of their work.

In their opening comments, Senator Diane Feinstein and Chairman Pat Leahy affirmatively expressed that the Senate supports the bill. "This is going to be legislation," Leahy warned opponents of the bill. "It will move."

The bill's main opponent, the National Association of Broadcasters (NAB), sent Steve Newberry, NAB joint board chair, to testify on behalf of radio broadcasters. He claimed that imposing a public performance royalty would further harm already-suffering radio stations, explaining that station revenues had fallen between 25 percent and 44 percent in the past year. Moreover, he claimed that the promotional value of radio play already more than compensates artists. To prove his point, he held up a plaque Usher had given to one of his stations commemorating the 2004 RIAA platinum certification of Confessions as evidence of how much performing artists loved, appreciated and depended on radio -- even though they don't get paid.

Newberry's arguments, however, didn't hold up against the stronger logic of public performance right supporters. Sheila E. -- a recording artist who has worked with the likes of Prince and Ringo Starr -- testified that, "being paid for one's work is a basic American right." Without these artist's creations, radio would have nothing to profit from. She framed the issue as one of respect -- asserting that it's disrespectful for broadcasters to take another's intellectual property and use it for profit without compensating the creator. "Music is my life," she said, with tears in her eyes, "and this is not fair."

RealNetworks Executive VP Bob Kimball also testified that the royalty was essential in order to prevent economic discrimination between terrestrial and digital broadcasters. "The Copyright Act should not decide technology winners and losers," he argued. Rounder Records owner Marian Leighton-Levy shot down NAB's argument that the promotional value of radio is sufficient compensation for performance artists. Radio, she pointed out, is an important promotional medium, but much less than in the past -- the Internet has created many more promotional outlets, all of which pay these artists. Moreover, Ralph Oman, an adjunct professor at George Washington University Law School, claimed that there is no legal or economic justification for denying artists a terrestrial public performance royalty. "The lack of a [royalty] is a huge international embarrassment," he testified referring to the fact that every other industrialized country in the world compensates artists for terrestrial radio play.

For those concerned that imposing a performance right would bankrupt all small broadcasters, consider that the Senate bill would compel either a $500 flat yearly fee or $1.37 per day fee from smaller stations. In an amusing series of questions to Newberry, Senator Feinstein pointed out that this flat fee is much less than the $600 in dues radio stations pay the NAB each year.

You can learn more about the Public Performance Right with our fact sheet and previous postings on the issue. You can also read Nancy Sinatra's recent Op-Ed on the Performance Right in yesterday's New York Times here.