By Marilyn Bergman, President and Chairman of ASCAP
The future of musical creativity depends upon strong copyright laws and the right of songwriters and composers to earn a living from their creative work. Yet, there are those who are publicly challenging that right. They do so under the guise of copyright "reform" - a euphemism for copyright erosion. It is no surprise that the organizations and industries speaking the loudest for copyright "reform" are those which stand to benefit the most from weakened copyright protections for music. They take the position that the copyright laws are arcane and do not meet the demands of the digital arena. They are wrong.
Hundreds of thousands of songwriters and composers living in the United States want, more than anything, to make a living from their work. Unlike the majority of people who advocate a weakening of copyright laws, most songwriters and composers do not collect salaries or enjoy employer-subsidized health insurance and paid vacation. Music creators are entrepreneurs trying again and again to reach a level of success that will allow them to take care of their families and continue writing so that writing music and lyrics can become a career, not a part-time unpaid struggle. For the relatively few who reach that level of success, it comes after years of effort, years during which we keep working, honing our craft and improving our skills. However, all the work would be meaningless without strong copyright laws and organizations such as ASCAP to protect us.
As President and Chairman of the Board of ASCAP, a membership association of more than 130,000 songwriters, composers and copyright holders, I strive to make sure that our voices are heard loud and clear when it is time to shape public policy on matters that affect our livelihoods. I intend to give you a songwriters' perspective on some of the positions being articulated in the music copyright debates. What would be the ultimate impact of some of these positions on creators' livelihoods? What would be the best way to proceed to insure the future of music in all its glorious diversity?
The writer is the first link in the music industry food chain, the earth from which everything springs. The writer faces an empty page and from the factory of his or her mind creates words and music that weren't there before.
Is there anything that evokes a time, a place, an event, an emotion, more than a song? We declare our love, worship, celebrate events, march to war, and bury our dead with songs. Our songs are heard in the far corners of the world.
The chain of economic benefits that starts with the songwriter or composer is a long one and has a positive economic impact on a great many people: the artists and musicians who perform our works, the technicians who record them, the retailers, both traditional and online who sell them, all those in the live concert industry, from road managers to janitors at theaters and arenas, the workers who manufacture instruments and electronic equipment, the technology wizards and entrepreneurs who develop ways for more people to access our music more easily than ever before.
Yet, the music creator is often invisible. All too often, for songwriters and composers, being the first link means being at the bottom of the food chain - indeed, often being forgotten altogether.
The role of the music creator is distinct from the role of the artist and the copyright in the song is distinct from the copyright in the sound recording.
One of the most common tactics employed by the opponents of copyright is to group together and confuse the roles and rights of copyright holders. This is a convenient way to argue in favor of different revenue models in the new digital world - models in which, they claim, artists can shed the shackles of recording contacts and market their music directly, although I haven't yet seen a model which assures artists of any compensation.
It is vital to make these distinctions. The revenue streams deriving from the copyright in the musical work are different from the revenue streams deriving from the sound recording. Indeed, artists have additional revenue streams that music creators do not have, deriving from the demand for those artists as performers and from the merchandising attached to their celebrity.
Moreover, why should those writers who are also artists be willing to give up the valuable copyright in their songs? After a singer- songwriter has released one of their own songs, anyone can record and release their version. Without the protection of the copyright laws, the writer will not be entitled to any royalties from the sale or performance of that other version.
And let's not forget all the people who will be deriving economic benefit from the songwriter's work - as I mentioned earlier, the artists, stagehands, e-commerce sites, Internet Service Providers and others all depend on those songs to attract an audience.
The Songwriter's Livelihood
Songwriters primarily earn income from the public performance of their songs (whether the performance be live, broadcast, transmitted digitally or by any other means), significantly supplemented by royalties from the sale of sound recordings of the song, the "mechanical" royalty. The mechanical royalty is limited to the statutory mechanical rate, and sometimes less, when "controlled composition" clauses prevail. Public performance royalty rates are negotiated on an industry-wide basis between ASCAP, on behalf of our members, and the music users. If we cannot reach agreement, a Court will decide a reasonable license fee. The method of delivery of music to the end-user, the consumer, is immaterial. If a performance of a copyrighted work occurs, the songwriter or composer deserves to be compensated.
Any transmission of music over the Internet, or via any digital means, is a performance. Some are trying to convince songwriters and composers that they should give up their performance and mechanical rights for transmissions over the Internet in the interest of wider dissemination of music. They forget to mention that songwriters and composers control their copyrights and have every right to give their music away for free if they want to. But the overwhelming majority of creators want the opportunity to be compensated for their work (especially when someone else is benefiting from it), and I know that I speak for all ASCAP members.
Right now, songwriters have free choice with respect to our copyrights. Erode the copyright laws with respect to the digital delivery of our work, and you take away our free choice.
Of course, being at the bottom of the food chain means we do not always have the bargaining clout we would like in negotiating with record labels, film companies and others with respect to the use of our work. Sometimes we give up control we would rather keep. But that is the way the marketplace works. When we do it, we do it because we choose to, believing the potential for economic benefit, or exposure, is worth the compromise. This is a choice that is ours to make.
Does the Marketplace Work? Yes.
Among the challenges music creators now face are efforts to create or expand exemptions for the use of copyrighted works along with efforts to enact compulsory licenses. The argument is that this copyright "reform," as I stated earlier, a euphemism for copyright "erosion," is necessary to stimulate the online music marketplace. The Music Online Competition Act is one such effort. The notion is nonsense.
ASCAP recently issued a joint statement with BMI and The National Music Publishers Association/Harry Fox Agency on Internet uses of music. In that statement, we unequivocally stated "our desire to license copyrighted musical works for transmissions on the Internet so that consumers may have online access to the world's repertory of musical works."
We cited the many examples of successful marketplace negotiations that have resulted in licensing agreements as confirmation that the free marketplace works. We believe it should continue to work, without legislative intervention. Efforts to legislate this evolving marketplace are unwarranted and could impede marketplace solutions. The strongest advocates for legislation are not rights holders, but technology companies represented by the Digital Media Association. They claim to want to "clarify" rights issues and "simplify" licensing so that digital media companies can deliver to consumers the music they so want to hear, the music we, as songwriters, write.
Under the guise of "clarity" and "simplicity" they are trying to do what every new type of music user has done in the past, find a way to get our music as cheaply as they can so that they can build their business models for maximum profit. As a ruse, they would have you believe they have the consumer's best interest at heart. The only interests they have at heart are their own.
The efforts to "clarify" rights really amount to efforts to eliminate certain rights by creating expanded and new exemptions from paying copyright holders for online music use. The efforts to "simplify" licensing really amount to compulsory licensing.
History has shown us that in most cases the compulsory license fee is determined at a value far less than the fair value we would negotiate with those who want to use our music. The essential unfairness of this request is shown by the fact that online music providers are not being told (and would never agree to be told) how much they can charge the consumer for the service or product they sell which depends on our music for its value!
They are trying to frame compulsory licensing as a positive thing for music creators, claiming it will enforce licensing compliance by digital media companies. The many license agreements now in effect prove otherwise. Legislation is not needed to force compliance. The only thing needed is willingness on the part of technology companies to do the right thing and negotiate rates in good faith.
The marketplace for online music is continuing to evolve, and we believe it will adapt to new business models as they emerge. In fact, the last few years have shown us that without legislation, the marketplace is adapting for the benefit of all parties.
ASCAP issued its first Internet licenses back in 1995, and since that time, has licensed every Internet web site that has requested a license to perform ASCAP music. We have a flexible licensing structure that allows web sites to choose the type of license that meets their needs for a reasonable license fee. In one licensing transaction, ASCAP Internet licensees have access to the entire ASCAP repertory of millions and millions of compositions written and owned by our members. All monies collected by ASCAP, less operating expenses, are distributed to our members as royalties. Indeed, ASCAP was the first U.S. performing rights organization to distribute royalties for Internet performances of our members' works. ASCAP is proud to have one of the highest distribution ratios among performing rights organizations in the world. About 85 cents of every dollar we collect is distributed to our members.
As songwriters and composers, our bargaining clout is sadly less than it should be. Legislation like the Music Online Competition Act would disadvantage us further. The message should be clear: respect creators of our culture by respecting copyrights, not weakening them.