Rep. Collins Wonks Out On Intellectual Property Rights For Songwriters
It is easy for politicians to take positions on high profile issues that voters get passionate about. Most people have opinions on abortion, same-sex marriage, bathroom rules, etc. It is always refreshing to see representatives take a break from the culture wars and dive into the weeds on issues that many are unaware of. If there is one thing Washington could use more of, it’s policy wonks.
Kudos to Representative Doug Collins (R-09) for his interest in intellectual property rights for songwriters. It turns out that people who write music get just as angry as people who perform it when their lyrics are played on radio, TV, or digital streaming apps like Spotify and they do not receive a payoff. To ensure that they receive royalties when their works are used, songwriters join Performing Rights Organizations (PRO) that collect copyright licensing fees from music users (radio and TV stations, live venues, and digital apps). The licensing fees are then redistributed to the songwriters by the PRO.
In the 1940s, however, the Department of Justice began thinking that PROs promoted anticompetitive business practices. ASCAP, the American Society of Composers, Authors, and Publishers, controlled access to almost all music copyrights and served as the “gatekeeper” for the users. With its large market share, ASCAP could play favorites, picking and choosing which users would get access to copyrights. To counter this, the DOJ issued a consent decree to promote competition between ASCAP and rival BMI, Broadcast Music Inc. The consent decree prevented the PROs from offering different rates to users so that, for example, radio and TV users would pay the same copyright fees. This encouraged more music users to enter the marketplace and, ultimately, it increased the number of mediums through which music could be distributed. We probably wouldn’t have Spotify or Pandora without the consent decree.
Over time though, the consent decree has become outdated. The DOJ recently interpreted its “full licensing” clause to mean that songwriters who own a small part of a copyright have to offer a license for the entire work. So, if two songwriters who belong to different PROs want to collaborate on a work then both of their PROs will be able to collect royalties. This decreases the negotiating power of the PROs and, according to the Future of Music Coalition, it would increase administrative costs, discourage collaboration, and complicate dealings with international royalty societies. Despite their rivalry, ASCAP and BMI have teamed up to lobby against the ruling.
Collins, a member of the House Judiciary Committee, wants to fight against the full licensing interpretation and other perceived inequities in the music industry. He is already a sponsor of the Songwriter Equity Act. It requires the rate court to factor in a song’s free market value when setting royalties for Spotify and other digital services. Using the free market standard will increase the royalty fees for songwriters as it accounts for sync licensing, which factors in internet videos or radio commercials that incorporate songs with images and other audio recordings. Collins is still deciding on whether to attach the consent decree reform to the Songwriter Equity Act. ASCAP and BMI are currently working on a legislative fix for the consent decree, so he will probably wait until they unveil their proposal before acting.
Apart from his committee assignment, Collins has good reason to be interested in songwriters and the music industry in general. ASCAP and BMI both have offices in Atlanta and the industry generates $3.7 billion a year while employing 20,000 Georgians. The entertainment industry has also been supportive of his campaign, so perhaps his journey into the intellectual property rights weeds has been well worth it. Like Paul Ryan, a known budget-guru, Collins is proving that wonkiness in Washington is not out of style quite yet.
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Thats a bunch of HOGWASH. ASCAP and BMI are government monopolies, and trust me they dont compete. If you play the radio in a business they will both come after you for “fees” without identifying whether their licensed song played or not. They actually have no way of knowing, but if you have music, they are there whether its theirs or not. They tried to put Pandora out of business. (from techdirt)
> For the past couple of years now, the Justice Department has been exploring the so-called “consent decree” around music publishing. This was an agreement, first made in 1941, and then reviewed in 2001, on how music performing rights organizations (mainly ASCAP and BMI) could operate without violating antitrust rules. Without such consent decrees, there was a quite reasonable fear that the performing rights organizations (PROs) would abuse their monopoly positions. This is not a theoretical argument. If you look around the globe, there are many, many, many, many, many stories of these organizations behaving badly.
In this case, ASCAP and BMI had been whining that because of those darn internet companies not paying enough, they need to get rid of the consent decree, mainly so that they can do more to jack up rates (there’s more to it, but the end result is they want to be able to withhold rights to force rates up). Of course, in opening up this can of worms, they also got the DOJ to start looking more closely at other practices, including an exploration into so-called split works or “fractional licensing.” The details here can get confusing, but in short: when a work has multiple copyright holders, many have argued that you need to get a license and/or approval from every copyright holder. But if you look at the legislative history of the 1976 Copyright Act, legislators made it clear that under the act, they intended to make it clear that any copyright holder in a work with multiple authors had the right to license the whole work.
And now… the DOJ has agreed. It issued an announcement with two key points: it would not take away the consent decree and it said that the law requires “full work” licenses, meaning a single copyright holder can grant a license for the entire work. This is a good thing. It’s a very good thing.”
Then there is this (hopefully this is not the position that Rep Collins is falling for…if he is…not so wonkish as gullible)
Of course, the PROs, ASCAP and BMI, immediately lost their shit over this announcement and promised to fight back. BMI also announced that it will go to court to try to overturn this decision, while ASCAP has decided to focus on getting Congress to fix it through the legislative route (there’s a reason for this bifurcated approach: in the cases involving both organizations, both BMI and ASCAP recognize that BMI has a judge that seems more willing to accept BMI’s version of the story, whereas ASCAP’s slimy behavior was so egregious that the judge covering its case actually understands the issues at play).
The end result, though, is the same old story: ASCAP and BMI want to abuse their monopoly position to try to jack up rates. Meanwhile, by not allowing that to happen, most songwriters will actually be better off, allowing more useful services to thrive, creating more opportunities for revenue. It’s kind of insane that we have to point this out over and over again, but the legacy industry always fights against new innovations in the false belief that it will harm revenue — yet when they learn how to embrace the opportunities, it turns out that a larger audience has been created and there are even more ways to make money. But ASCAP and BMI, like the RIAA on the recording side, are so foc
https://www.techdirt.com/articles/20160804/17361135160/doj-makes-smart-decision-music-licensing-music-publishers-completely-lose-their-shit.shtml
If you want to really know how this works…read the whole piece
“Over time though, the consent decree has become outdated. The DOJ recently interpreted its “full licensing” clause to mean that songwriters who own a small part of a copyright have to offer a license for the entire work.”
That statement is also highly misleading. What the ruling said was that if its in the catalogue its part of the deal. If an artist doesnt want to provide that permission then they shouldnt be listed. No updating really needed.
What the PROs want is to pick and chose so they can charge more to end users. Again, if you play the radio at your business you dont know whether something is licensed and to whom. Thats why they are blanket licenses which is what the consent degree calls for. Anything else would be an undo burden on the end user.
Rep Collins…it aint broke so dont go trying to fix it.