Espinel: Performance right is issue of "basic fairness"

By Gautham Nagesh - 03/15/11 05:37 PM ET

Buried in the Obama administration's list of recommendations for Congress to improve intellectual property enforcement is an endorsement of the "performance right," which would require radio stations to pay royalties to musicians and performers for playing their music.

Currently stations are only required to pay songwriters, though the recording industry has pushed for years for stations to pay performance rights as they do in other nations. White House IP enforcement czar Victoria Espinel said aside from the issue of basic fairness, the current law makes it difficult to enforce U.S. copyrights in other nations.

Espinel said in many cases foreign government collect royalties from domestic radio stations that should go to American performers, but because of the way the law is written the governments don't have to turn over the funds.

"Until the loophole in our law is closed, we won't have the ability to enforce our rights in other countries," Espinel told Hillicon on Tuesday afternoon.

But the broadcasters have staunchly opposed what they term a "performance tax," arguing radio airplay remains the best way for artists to promote their music.

"This is hardly a new policy position from the White House," said NAB spokesman Dennis Wharton. "NAB remains unalterably opposed to legislation creating an onerous, jobs-killing fee on America's hometown radio stations without offsetting provisions and benefits that recognize the the unparalleled promotional value of radio airplay."

Groups including Public Knowledge and the Recording Industry Association of America praised the White House for supporting the performance right, with the former acknowledging that the policy seems a strange fit with a list of recommendations focused largely on criminal penalties for IP infringements.

"While this seems tangentially related to an enforcement agenda, performing artists deservingly stand to benefit from such a system,” said Public Knowledge president Gigi Sohn.

Espinel said the administration supports efforts by Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers (D-Mich.) to introduce the performance right in Congress so no further legislative action is necessary from the White House. 

However, on some of the other recommendations Espinel said the administration was prepared to offer language if no one in Congress steps up to do so.

Espinel also took a moment to explain the White House's recommendation that illegally streaming online content be clarified as a felony in some circumstances. She said the current law is ambiguous as to what category of infringement streaming would fall into.

"Everyone agrees it should be a felony if it meets standards of criminal activity such as willfulness," Espinel said, adding that streaming live sporting events and copyrighted films are the two most common examples of infringement.