New York Business Lawyers

Background of the DPRA

Section 106 of the Copyright Act lists among the enumerated rights of an artist a right of public performance which empowers the copyright owners, subject to several limitations.  Although composers have profited from this right through their musical compositions, for decades, sound recordings did not garner “performance fees” even after they became copyrightable in 1971.

It was not until 1995 that U.S. Copyright Law recognized any right of public performance in sound recordings embodying musical compositions, with the passage of the Digital Performance Right in Sound Recordings Act(DPRA) .  For over 80 years, Congress has rejected the idea of a broad performance right over every medium, partly because there was an assumption that conferring this right would damage the mutually beneficial relationship between record labels and broadcasters.

The Senate Report accompanying the DPRA describes how it arose out of a desire to address new mediums for transmitting music, stating, “The underlying rationale for creation of this limited right is grounded in the way the market for prerecorded music has developed, and the potential impact on that market posed by subscriptions and interactive services – but not by broadcasting and related transmission.”  The Report goes on to explain certain aspects of terrestrial radio that put it beyond the scope of concerns which inniated the formation of the performance right.  It suggests that over-the-air FCC-regulated stations should be exempt from any sound recording performance rights liability because unlike Satellite and digital stations, they are available without subscription, do not rely upon interactive delivery, provide a mix of entertainment and non-entertainment programming and other public interest activities to local communities, promote rather than replace record sales, and do not constitute “multichannel offerings of various music formats.”