Remember the classic children’s fable about Chicken Little who claims the sky is falling after an acorn hits his head?
The Department of Justice is in the middle of a lengthy review of various outdated consent decrees. As they progress, you’ll likely hear a familiar chorus of Chicken Littles claiming that the sky is falling from groups that for one reason or another do not want these decrees to go away.
In the case of the American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees governing music licensing, these groups believe that termination poses a serious risk to the music marketplace. As a career songwriter, let me call their bluff and explain why this threat is actually little more than an acorn.
First, it goes without saying that the way music is made and consumed has changed dramatically since ASCAP and BMI entered into consent decrees with the DOJ more than 75 years ago in 1941. People don’t buy music anymore; they use new technology to stream it on their phones and in their homes with smart devices. Music is a commodity that is now accessible anywhere, anytime.
The free market fostered this innovation in technology. But the way music is bought and sold has not been allowed the same free market progress. A number of provisions in the Music Modernization Act, signed into law last year, show consensus among industry players and legislators that our music licensing system desperately needs more free-market influence, but that cannot be achieved when some of us have to operate as if its 1941 and the rest are able to operate in 2019.
In addition to shifts in technology, new performing rights organizations have entered the marketplace to compete with ASCAP and BMI, but they are not bound by a decree. They have the ability to negotiate royalties for their members that reflect what the market values. They can also be flexible to licensee needs as the industry continues to evolve.
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This week more than a dozen ASCAP songwriters and I are visiting Capitol Hill to take this message to lawmakers. It’s a trip we make each year – but as misconceptions abound on what a free-market system would bring, it is one that’s taken on additional importance.
The DOJ has said their goal in this consent decree review is to get out of the business of regulation and focus instead on its original mission of oversight. While ASCAP and BMI didn’t initiate this review, we feel that it is important to seize the moment to try to fix our antiquated system. The future of music creation depends on it.
Even with the MMA as an important first step toward giving music creators greater access to fair compensation, songwriters are some of the most heavily regulated small business owners in the country. Three-fourths of the income streams we rely upon to feed our families are subject to federal oversight. All too often, this prevents songwriters from negotiating fair market rates for the use of our work and stunts competition in the modern music marketplace.
If the DOJ decides to remove the ASCAP and BMI consent decrees, we will do everything we can to ensure a smooth transition to a free market, without disrupting things for music creators, licensees or consumers. We know we can’t just rip the Band-Aid off a system that’s been in place for over seven decades. That’s why we’d propose a transitional decree that would preserve certain requirements to help the marketplace adjust, as we know it is capable of doing.
Removing the consent decrees doesn’t mean ASCAP or BMI get to run roughshod over antitrust laws or the DOJ. A lot of people are parroting “the sky is falling” scenarios — a lot of them represent the interests of the same companies that are making money off the music we create. They fear royalty rates paid to songwriters would be higher in a free market, but that is because know they have been making below-market deals and do not want to pay us what our music is truly worth.
Let’s be clear, ASCAP, BMI and the businesses large and small to whom we license music share a common goal: to keep the music we all love flowing to the public. But this effort is not mutually exclusive to ensuring music creators get the same opportunities as those businesses operating in a free market.
Paul Williams is an Oscar-, Grammy- and Golden Globe-winning Hall of Fame songwriter and the president and chairman of the board of The American Society of Composers, Authors and Publishers.
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