ASCAP and BMI have vowed to fight the US Department of Justice’s recent decision not to alter the consent decrees governing the two performance rights organisations and to push for consent decree reform, for BMI through litigation and for ASCAP through legislative action.
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Following a two-year review of the antitrust consent decrees that govern coordinated action by the major performing rights organizations the American Society of Composers (ASCAP) and Broadcast Music Inc. The department disagreed but said ASCAP and BMI must offer “100 percent licensing” of their songs, according to the NYT.
Publishers like Sony/ATV Music Publishing and Universal Music Publishing Group had hoped the agreements would be rewritten to allow them to “partially withdraw” from Ascap and BMI and negotiate performance licenses with streaming service providers.
In parallel, ASCAP announced that it will “take the lead for the two PROs in pursuing a legislative solution to ensure the continued availability of fractional licensing as well as other remedies to the outdated consent decree regulations that disadvantage songwriters and composers in the digital age”. Deviating from this widely accepted practice would significantly harm consumers, services, venues and songwriters.
ASCAP counts some 575,000 USA composers and songwriters among its members, while BMI has some 700,000 songwriters, composers and music publishers.
The Antitrust Division of the DOJ opened an investigation into changing the consent law in 2014, but said that after speaking to “dozens of industry stakeholders” it determined “no modifications are warranted at this time”.
ASCAP and BMI aggregate rights from a host of musical works and provide a blanket license for their performance at a single price, regardless of whether an individual work is actually performed. BMI said Thursday that it plans to sue the department, while ASCAP announced it will work on new legislation in Congress. But Hesse cast the DOJ’s opinion as a positive for both the writers and those who want to play their music. In comments submitted to the agency [PDF] jointly with the Radio and Television music license committees, NAB argued that the current system works and “there is no reason to anticipate the kind of license turmoil” envisioned by the music industry. “The DOJ also clarified that those who purchase blanket licenses from ASCAP and BMI have the unlimited right to these organizations’ songs”. “We’re heartened by the Department’s decision to leave the protections of the consent decrees in place, ensuring that the PROs will continue to offset the harms posed to the licensing marketplace by industry consolidation, rather than amplify them”. Hesse said full-work licenses prevent music users from having to go through the hassle of identifying all of the rights holders of a particular song and negotiating with each of them individually. “The Department ignored the voices of copyright experts, members of Congress and thousands of songwriters and delivered a huge gift to tech companies who already benefit from egregiously low rates”.
Williams asked songwriters to stay united to fight the DoJ’s decision and lend their support to ASCAP and BMI’s initiatives.
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The full copy of BMI’s pre-motion letter can be found HERE.
