The fight over the application of a "Performance Right" royalty payment to over-the-air radio had two major developments this week but is unlikely to produce any changes to the ultimate resolution of this issue in 2008.

We have previously informed you of the RIAA’s efforts to ensure copyright holders in sound recordings (the individual performer of every song, as opposed to the songwriter, who owns a copy in the "musical work") receive royalties for performance of their works.  The main legislative proposal to create such a right, HR 4789 passed the Subcommittee on Courts, the Internet, and Intellectual Property of the House Judiciary Committee on Wednesday.  That was not surprising, given that the bill’s chief sponsor and proponent, Rep. Howard Berman (D-CA) is the chair of that subcommittee.  

What remains to be seen is whether HR 4789 can continue what is likely to be a very uphill climb in this year and beyond.  With little legislative time left in 2008, things would have to move fast and it is unclear how the full Judiciary Committee feels about this bill.  Clearly standing in the way is the commitment of 219 Representatives — enough to block this legislation against application of this right to over-the-air performance of sound recordings.  221 Representatives have co-sponsored H. Con. Res. 244, known as the "Local Radio Freedom Act"   If all 219 Representatives (2 of the co-sponsors are no longer in the House) hold their position, there is no chance the legislation will pass; prospects for 2009 are unclear as well, as Rep. Berman will no longer chair this key committee.  So, as always, stay tuned.