As part of our ongoing efforts to modernize music licensing, ASCAP recently submitted a set of music licensing recommendations to the US Copyright Office. The recommendations came in response to the Copyright Office’s Notice of Inquiry for comments related to its study of the effectiveness of existing methods of licensing music.
Our comments acknowledge that music is now enjoyed by more people, in more places and over more devices than ever. But the outdated regulatory system that governs how new services are licensed has failed to keep pace, making it increasingly difficult for music creators to earn a competitive return for their creative efforts.
We made the following points about how to move music licensing forward in the digital age:
1) The antiquated ASCAP Consent Decrees must be updated or eliminated
Instead of ensuring that copyright owners and licensees are negotiating on equal footing, the current ASCAP Consent Decree with the Department of Justice has allowed licensees — particularly new media services — to exploit certain provisions to the detriment of songwriters, composers and music publishers who depend on public performance royalties for their livelihoods. The simplest solution is the elimination (or sunset) of the Consent Decree. It no longer serves its intended purpose, and puts ASCAP and its members at a competitive disadvantage.
2) The current rate court process hinders the effectiveness of collective licensing
Rate court proceedings have become extremely time- and labor-intensive, costing the parties millions in litigation expenses, without resulting in fair market rates for writers and publishers. In addition, Section 114(i) of the Copyright Act has perpetuated a disparity in the compensation provided to songwriters for the use of their songs, compared to the compensation provided to record companies for the use of their sound recordings. If left unchecked, these developments threaten the viability of collective licensing in the US – which will hurt writers, publishers, consumers and new services alike.
Here’s what we propose:
- Shift to rate-setting through expedited private arbitration instead of rate court
- Establish an evidentiary presumption that direct licenses, negotiated voluntarily between copyright holders and licensees, provide the best evidence of reasonable rates
- Allow new media services to secure licenses from PROs on a bundled basis
- Allow PROs to accept partial grants of rights from its members
These proposed changes will benefit all constituencies in the music licensing marketplace. For consumers, these changes will ensure access to a broad range of music at a fair price. For music licensees, they will ensure continued access to the music they want at a reasonable rate. And for the songwriters and composers who are the foundation of the rapidly changing music ecosystem, they will ensure fair compensation for their creative works so that they can continue to write the songs we all enjoy.
Read the full text of our comments to the Copyright Office for more details.