[Congressional Record Volume 148, Number 150 (Tuesday, November 19, 2002)]
[Senate]
[Pages S11548-S11549]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HELMS-LEAHY SMALL WEBCASTER SETTLEMENT ACT OF 2002
Mr. HELMS. Mr. President, last week, I introduced the Small Webcaster
Settlement Act of 2002, along with the chairman of the Senate Judiciary
Committee, Senator Leahy. Having now been passed by both Houses of
Congress, this bill is expected soon to be signed by the President.
The Helms-Leahy bill is the result of a sustained and arduous
negotiating process involving numerous stakeholders. Its enactment
enables small Internet radio services and the recording industry, if
they both choose, to settle their longstanding disputes regarding the
amount of royalties webcasters must pay in order to perform sound
recordings over the Internet.
This consensus legislation will bring much-needed stability to the
emerging webcasting industry by permitting small commercial webcasters
to establish with final certainty their financial obligations, thereby
enabling entrepreneurs to secure additional venture capital and to
avoid bankruptcy in many cases.
Moreover, as enacted, this bill will ensure that privately negotiated
settlements will not be enacted into positive law, thereby negatively
impacting, either directly or indirectly, any industry or entity that
does not or cannot yet settle their liabilities for these royalties.
Finally, this bill will require artists to be paid directly their
congressionally mandated share of performance royalties, so that there
will no longer be any risk that record companies with disproportionate
bargaining leverage will, by contract, squeeze recording artists out of
their fair share.
The Digital Millenium Copyright Act, DMCA, required, for the first
time, users of music recordings to pay performance royalties to owners
of copyrights in sound recordings. The creation of this new performance
royalty represented a dramatic reversal of decades of U.S. public
policy.
Prior precedent had established that performances of sound recordings
on traditional broadcast radio were not deemed to result in liability
for performance royalties to sound recording copyright owners because
it was those very same performances that introduced songs to the
listening public, thereby promoting sales of sound recordings and
generating revenue for copyright owners and recording artists.
Notwithstanding this longstanding precedent, the DMCA required
Internet radio services to pay sound recording performance royalties
and determined that the royalties should be set by a panel or
arbitrators, known as the Copyright Arbitration Royalty Panel or CARP.
Unfortunately, the arbitration process has become too lengthy, too
technical, and too expensive for many stakeholders. As a result,
thousands of small commercial webcasters, broadcasters, noncommercial
webcasters, college radio stations and hobbyists have been effectively
denied the opportunity to participate in the arbitration proceedings in
any meaningful way. Perhaps it was because these smaller interests were
not adequately represented in the CARP proceeding that the resultant
royalty was so high and the rate structure so inflexible that the
[[Page S11549]]
majority of small webcasters feared that it would lead to their demise?
As the distinguished chairman of the Senate Judiciary Committee stated
at a May 2002 hearing on this subject, Congress did not intend to
bankrupt small webcasters when it created this new royalty.
It would be a mistake for someone to construe the Helms-Leahy bill as
a criticism of the arbitrators decision. Rather, I consider this
legislation to be an indictment of the process, with unintended
consequences flowing from the framework that Congress set forth in the
DMCA.
It is impossible for arbitrators to appreciate the full implications
of their determinations if significant industry participants cannot
afford to appear before them or if those with disproportionate control
over the outcome refuse to deal in good faith. I understand that
Senator Leahy intends to pursue comprehensive CARP reform in the
Judiciary Committee next Congress. Though I will no longer be serving
in the U.S. Senate next year, I hope that the chairman and ranking
members of both Judiciary Committees will follow through on this
commitment, working constructively to quickly remedy the concerns
expressed about the current CARP process.
There was not time to fully reform CARP this fall but I considered it
essential that Congress move swiftly to ensure that small webcasters
not be bankrupted by unfair arbitration outcomes. An equally important
goal was to ensure that settlement agreements negotiated by recording
companies and small webcasters facing bankruptcy not unfairly impact
non-participating third parties--such as larger webcasters and
broadcasters, or even the recording companies. Moreover, I consider it
critically important to underline that nothing in this bill should be
construed as affecting the outcome of any pending litigation.
I commend Chairman Sensenbrenner for focusing attention on this issue
and commencing the process that ultimately led to the passage of this
critically-needed legislation. I respect that there was a difference of
opinion on the precedential value of H.R. 5469, as originally passed by
the House. Nevertheless, beyond dispute is the fact that numerous
stakeholders had expressed serious reservations that the original
House-passed bill could unintentionally and negatively influence future
rate setting proceedings.
The Helms-Leahy bill removes that concern, helps ensure that small
webcasters will not be forced into bankruptcy, provides non-commercial
webcasters with additional flexibility, and accomplishes several other
goals on which the stakeholders and the Judiciary Committee leadership
could agree.
The deductibility provision contained in section 5(b) of the bill is
one that was viewed as important to several parties. The final
provision is intended to encourage competition among agents designated
to distribute royalties. While I ultimately agreed to this provision, I
wish to make it clear that I would consider it unconscionable if the
provision were used to justify higher royalty rates for users of sound
recordings.
The ability to deduct these fees is premised on a balance of
interests, owners of sound recordings should not be prejudiced by a
process that precludes effective legal representation, designated
agents should be incentivized to quickly and fairly conclude settlement
agreements rather than engage in protracted and expensive legal and
arbitration proceedings, and music services and other users of sound
recordings should pay a fairly negotiated fee that is not impacted by
the costs of litigation, arbitration, and legal expenses incurred by
the designated agents.
Users already bear their own litigation, expert fee and legal
representation costs for participating in the CARP process and the
resources of the Copyright Office are taxed when fair settlements are
not reached among the parties.
In my view, the public interest would not be well served if the
deductibility provision were interpreted in a manner that had the
effect of diluting the payout to copyright owners, reducing the
incentives for negotiating settlements, and/or increasing the fees paid
by consumers for the use of sound recordings. To avoid these clearly
undesirable and unintended outcomes, I believe it would be unwise to
take these costs into account in any arbitration or other proceeding to
set royalty fees.
I expect this to be the final piece of legislation I author in my
career as a United States Senator. I particularly wish to thank
Senators Leahy and Hatch and their superb staffs for their expertise
and assistance in ensuring the quick approval of the U.S. Senate.
Additionally, I want to recognize the substantial contributions of the
Senate and House leadership as well as the leaders of the House
Judiciary Committee, for their continued assistance and cooperation as
we worked through these difficult issues over the past several weeks.
Finally, I also wish to thank David Whitney, Joe Lanier, Wayne Boyles
and David Crotts of my staff, the leaders of the affected industry and
artist organizations who assisted me so greatly in negotiating this
compromise legislation and a young lady entrepreneur of whom I am
extremely proud, Deb Proctor of WCPE-FM in Raleigh, NC who first
brought this issue to my attention.
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