Is it time for digital radio to pay up?

Greg Nash

Lawmakers are pushing for changes to a copyright licensing system that now allows some radio services to play an entire era of popular music for free. 

Copyright law sets a bright line at Feb. 15, 1972, allowing Internet, satellite and cable radio stations to air music recorded before that date without paying the artists. That means that major staples of the airwaves, from rock to folk to classic soul, are kept on rotation without any fees being paid to the artists.

ADVERTISEMENT
Artists including Martha Reeves, Dickey Betts of the Allman Brothers Band, the Beach Boys’ Al Jardine and Roger McGuinn of the Byrds say the system is unfair to musicians who made music before the arbitrary date.

“From Hitsville to Nashville, some of the greatest music the world has ever known was recorded in the 1960s. And yet it’s this golden age of music that digital radio says is worthless,” Reeves said in a statement earlier this year applauding lawmakers’ efforts to get pre-1972 musicians compensated.

“Taking the creative fruit of someone’s labors and paying them nothing for it is unethical, immoral, and simply un-American,” she said.

Rep. Jerrold Nadler is pushing to change the 1972 rule, along with a host of other “glaring inconsistencies and injustices” that he says are part of the licensing system.

Nadler (D-N.Y.), the ranking member on the House Judiciary subcommittee on Intellectual Property, says the system needs to be fixed in a comprehensive way, rather than through a piecemeal approach with stand-alone bills.

“Although the existing music licensing and copyright scheme can be difficult to understand, the solution is quite simple,” Nadler said at a hearing on music licensing.

The solution, Nadler says, is for Congress to craft a new licensing law that applies to music across the board while setting rates for how much all radio stations should pay songwriters, publishers and musicians.

“We’ve got to make sure that the songwriters get adequately paid, the performers get adequately paid and that there’s a rational structure,” he said, “and then everybody can fit their business models to it.”

Nadler said his bill, which he has dubbed a music licensing omnibus, or “Music Bus,” will incorporate multiple proposals from other lawmakers.

One of those proposals is a bill from House Energy and Commerce Committee Vice Chairwoman Marsha Blackburn (R-Tenn.) and Rep. Anna Eshoo (D-Calif.), the ranking member of the Commerce subcommittee on communications.

Blackburn and Eshoo, who typically butt heads on telecom issues such as net neutrality, have a bill that would require traditional AM/FM radio stations to pay musicians for the songs they play.

Currently, AM/FM radio stations pay nothing to artists for broadcasting songs, regardless of when they were recorded.

“If you’re going to use it, you need to pay for it,” Blackburn said.

“You would not walk into a hardware store and steal a handful of screws or nails. ... You would pay for them,” she told The Hill. “The same goes for music.”

But any comprehensive bill that includes fees for AM/FM radio stations is certain to draw vigorous opposition from broadcasters, who argue that musicians benefit from the free promotion of having their songs played on the radio.

The National Association of Broadcasters (NAB) also argues new fees could force small, local radio stations out of business, and says licensing deals that have been struck between musicians and broadcasters show there isn’t a need for Congress to get involved.

“We think the free market is resolving many of these issues as was evidenced by today’s announced agreement between Cox Radio and Big Machine,” an NAB spokesman said, referring to one of the deals.

Those arguments appear to have won over some lawmakers. A broadcaster-backed resolution to keep Congress from implementing new fees for radio stations is backed by a majority of the House, with 226 co-sponsors.

That show of support isn’t deterring Nadler, who is vowing to take on the broadcasters and their supporters on Capitol Hill.

While “there’s a sensitivity to” the licensing debate because local radio stations exist in each congressional district, Nadler said he hopes to convince lawmakers the current system is “irrational” and must be changed.

An aide to Nadler said he aims to include protections in the comprehensive bill for radio stations to try and prevent smaller operations from being put out of business.

Another measure Nadler is eyeing is a stand-alone bill from Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) that would change the way regulators determine the amount Internet, satellite and cable radio services pay songwriters and music publishers for music.

“If there’s going to be a bill, I’m going to be a part of writing it,” Collins said.

Collins said he is optimistic that House Judiciary Committee Chairman Bob Goodlatte (R-Va.) will be open to the music licensing bill once he completes his monthslong, sweeping review of copyright law.

“I think it’s important to him,” Collins said. “If this comes about, I think he’d be very, very open to what we’re looking at.”

But Rep. George Holding (R-N.C.) said his bill — which would require Internet, satellite and cable radio services to pay musicians for songs recorded before 1972 — should move on its own.

Holding called his bill “a rifle shot solution in an issue where I think that Congress’s intent isn’t being carried out.”

The pre-1972 bill should move separately and sooner because older musicians should be compensated before it’s too late, Holding said.

“It’s unfair for them to have to wait for the comprehensive review,” he said. 

Despite the renewed activity, one lobbyist expressed doubt that a major overhaul could make it through the House.

The lobbyist said a comprehensive bill “is the right thing to do” because it would address the inequities in the system and ensure that all musicians are treated the same.

“But in D.C., what makes sense ... and what can politically happen aren’t always the same thing.”