The copyright owner has the exclusive right to perform or authorize the public performance of his work. A performance is public when it is made in front of a large or undefined number of people or is broadcast to members of the public. For example, when a singer sings a song in a concert hall, a TV station broadcasts a song, there is a public performance. Private performances, i.e. performances in front of family and friends, do not need consent from copyright owners.
The public performance rights of composers and owners of copyright in sound recordings vary a great deal. Composers have to be compensated whenever their composition is publicly performed whether through radio or TV or in a concert hall. The right encompasses what has come to be known as synchronization rights. A synchronization right is the right to authorize use of music as a background or as part of a movie or a television show.
In contrast, copyright owners of sound recordings have no general public performance right. This means that when an over-the-air radio station plays a record, the composer is entitled to compensation but the owner of copyright in the sound recording is not. In 1995, Congress passed the Digital Performance Right in Sound Recordings Act. This law grants to owners of copyright in sound recordings a public performance right in digital transmissions of their music. This right is subject to a number of limitations which we will talk about in the limitations section.
Administration of the Public Performance Right
Administration of the performance right varies between composers and owners of copyright in sound recordings. While composers administer this right through voluntary organizations, owners of copyright in sound recordings administer the right under a compulsory license scheme provided by the law. We will discuss the administration of the right for composers in this section. We will discuss administration of the right for owners of copyright in sound recordings under the limitations section.
Although the law gives exclusive performance rights to composers, it is almost impossible for individual composers to enforce this right. How is a composer to know when and where his works are being performed? Therefore, performance rights are enforced by “performance rights societies” formed by authors and composers.
The performance right is administered by three organizations — the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC (formerly known as the Society of European Stage Authors and Composers). These organizations are also known as the performance rights organizations (PROs). They license compositions for public performance on behalf of composers who are members of these organizations and distribute royalties collected to the composers.
These PROs charge a single blanket license for unlimited access to their entire repertories of musical works for a contractual period. The license is charged as a percentage of the music user’s revenue. The percentage is negotiated based on use and the importance of the music in the user’s operation. Generally wealthier users such as the major television networks are charged more than small users.
The PROs also offer a per-program license fee for users who require minimal access to their repertories. For example all talk and all news radio stations are offered per program licenses. The revenue generated from the licenses is distributed to members based on the number of times their compositions were used and the prominence given by users to their compositions. More information about ASCAP, BMI and SESAC is available on their websites at www.ascap.com, www.bmi.com and www.sesac.com.