Artists and broadcasters today continued their fight over a performance right to play recordings over terrestrial radio during a hearing before the Senate Judiciary Committee.

Singer-songwriter Alice Peacock urged members of the Senate Judiciary Committee to be fair to "the great middle class of recording artists" by no longer exempting terrestrial radio broadcasters from paying a royalty to play recordings.

Commonwealth Broadcasting chief executive Steven Newberry countered the argument by pointing out the promotional value of radio play, noting that Kenny Chesney, Sugarland, Carrie Underwood, Rascal Flatts and Taylor Swift all thanked country radio during the recent Country Music Awards telecast.

The testimony came during a hearing with more "still cameras" than Committee ranking member, Arlen Specter, R-Penn., said he has ever seen before during a hearing. The senators explored the scope of the public performance right under copyright law for sound recordings.

The debate centers on recording artists, record companies and other holders of a copyright interest in sound recordings who want terrestrial radio broadcasters to pay royalties for the recordings played over the air – not just for the compositions broadcast. Copyright laws in every other developed country require terrestrial broadcasters to pay for the "performance" of the recordings as well as the compositions. In the United States, only digital broadcasters -- Internet, satellite and cable radio -- are currently required to pay to perform recordings.

Committee chairman Patrick Leahy, D-Vt., set the stage for the hearing by outlining five issues under consideration that all revolve around "fairness," he said. Is it fair to continue to exempt broadcast radio from paying royalties to performers? Is it fair to copyright holders not to align U.S. copyright practices with every other OECD country? Is it fair to require digital broadcasters to pay royalties while allowing traditional broadcasters to be exempt? Is it fair to require small broadcasters to pay the same as large broadcasters if a performance right is created? Is it fair to impose public service requirements on terrestrial broadcasters but not to other broadcasters?

Newberry testified that Commonwealth owns 23 radio stations in rural Kentucky. They have fixed expenses and thin profit margins. He argued that the first place most people hear music is over FM radio, which drives music sales by exposing and promoting talent through airplay, on-air interviews with artists, hyping newly-discovered artists, giving away free concert tickets and other promotions.

"Local radio is essentially free advertising and provides the best and most direct way to reach consumers," Newberry said.

Four-time Grammy winning artist-songwriter Lyle Lovett testified that music performed by U.S. artists amount to 30%-50% of the music played on stations around the world, yet foreign collecting societies refuse to share the royalties because U.S. law does not reciprocate.

"I love radio and appreciate the support," Lovett said, "but business is business, and fair is fair. Radio shouldn't be able to profit without compensating us." Lovett noted that the "us" included background musicians as well as the featured artists.

Peacock pointed out that her concert performances help sell records, but wondered what would happen if concert promoters wanted to stop paying artists because the concerts had promotional value.

Dan DeVany, VP/GM of non-profit public broadcaster WETA in Arlington, Va., testified that his station is the only one that broadcasts classical music in the Washington, D.C. area. He argued that community-based stations don't have the money to pay another
royalty.

In response to questions from Committee members over the affordability of paying performers in addition to songwriters, DeVany explained that some qualified non-profit stations have their songwriter fees paid by the Corporation for Public Broadcasting. He said he wasn't sure how it would work for the CPB to also pay for artists, but promised to look into the matter for the senators.

DeVany also testified that very small stations that don't qualify for CPB support still pay songwriters, but the margin is so slim he wasn't sure they could make additional payments. He also promised to explore how much they pay songwriters and who makes those payments.

Some of the senators pressed the witnesses to gather information after the hearing to present to the Committee so they could draft "equitable" legislation.